Witnesses:
Lyn Simpson: Former Executive Regional Managing Director for the North (NHS Improvement)
Corinne Slingo: Former legal adviser (Solicitor) to the CoCH
Ian Pace: Former legal adviser (Solicitor) to the CoCH
Simon Medland KC: Former legal adviser (Barrister) to the CoCH
LADY JUSTICE THIRLWALL: Good morning. Mr De La Poer.
MR DE LA POER: My Lady, our first witness today is Ms Lyn Simpson and I wonder if she might come forward, please.
MRS LYN SIMPSON (sworn)
LADY JUSTICE THIRLWALL: Do sit down.
SIMPSON: Thank you.
Questions by MR DE LA POER
MR DE LA POER: Please could you state your full name?
SIMPSON: Mrs Lyn Simpson.
DE LA POER: Mrs Simpson, is it right that you provided to the Inquiry a witness statement dated 11 June of this year?
SIMPSON: That's correct.
DE LA POER: Now, in a moment I am going to ask you to confirm the content of that statement to be true but before we get to that, can I just flag two corrections that you have drawn to my attention. The first is at paragraph 9, where you state that you are a member of the Royal College of Nursing; in fact that isn't the correct position, is that right?
SIMPSON: That's correct.
DE LA POER: So that's a correction that needs to be made to the statement. The second is that at paragraph 32, you give a date which included 2016, that is a typo, it should be 2018; is that right?
SIMPSON: That's correct.
DE LA POER: Other than those two corrections, is the content of that witness statement true to the best of your knowledge and belief?
SIMPSON: It is.
DE LA POER: We will just introduce you before we come to the substantial part of my questioning. Did you qualify as a nurse in 1978?
SIMPSON: I did.
DE LA POER: Did you thereafter work as a hospital nurse?
SIMPSON: I did for a short period of time.
DE LA POER: Then I believe you trained as a midwife?
SIMPSON: I did.
DE LA POER: Indeed you worked as a health visitor as well?
SIMPSON: I am.
DE LA POER: I think that I am right in saying that you started in a hospital management position around 1987; is that right?
SIMPSON: That's correct, yes.
DE LA POER: Moving forward in time, by 1998, did you become an Executive Director of a Hospital Trust?
SIMPSON: I did.
DE LA POER: Then to a period of about six years in that role; is that right?
SIMPSON: I -- that is correct, yes, yes.
DE LA POER: Then if we move forward in time, between October 2007 and February 2010, did you have two roles, Department of Health Director of NHS Operations and Director of Operations Regional Nurse at the Northeast Strategic Health Authority?
SIMPSON: I did, yes.
DE LA POER: From there, in February 2010, for a period of approximately a year, were you the Chief Operating Officer; that is to say the Deputy Chief Executive of South London Healthcare NHS Trust?
SIMPSON: I was seconded into that role for a year.
DE LA POER: Then back to the Department of Health in the role of Director of NHS Operations, NHS Finance Performance and Operations?
SIMPSON: That's right.
DE LA POER: October 2013 to May 2016, were you the Delivery and Development Director for the north, for the NHS Trust Development Director (North)?
SIMPSON: I was.
DE LA POER: Then coming to the period that we are going to be focused upon, between May 2016 and April 2019, were you the Executive Regional Managing Director for the north for NHS Improvement?
SIMPSON: I was.
DE LA POER: Now, in your witness statement you tell us about what that role involved and you say this, and I am looking here at paragraph 11 if you want to follow along: "In summary, my role primarily focused on supporting organisations to an improved sustainable position which offered the highest standards for patients and the public." So that is the way in which you would summarise the primary focus, as you term it, of your role?
SIMPSON: I would, yes.
DE LA POER: Now, putting a little more detail on it, you go on to say that you were responsible for 72 NHS organisations; is that right?
SIMPSON: I was.
DE LA POER: Your focus was on "working with organisations to enable them to exit quality and/or financial special measures". I was just wondering if you could help us with that?
LADY JUSTICE THIRLWALL: What does it mean?
SIMPSON: So the -- part of the role in NHSI was to focus on those organisations who were Foundation Trust and those who hadn't achieved Foundation Trust status. For the ones who hadn't achieved Foundation Trust status, there was a pipeline to move through to become a more autonomous body which was an NHS Foundation Trust. As part of that process, there was monitoring of the organisation's performance, its quality metrics, its leadership ability and making decisions about how quickly it could improve and move through that pipeline to becoming authorised as a Foundation Trust.
MR DE LA POER: I daresay it's only me in this room Ms Simpson but I wonder if you can just help me to understand the phrase "to enable them to exit quality"?
SIMPSON: It's to exit special measures, rather than quality.
DE LA POER: So put in perhaps slightly plainer English, to leave a position where they are in special measures to a better position, is that what it means?
SIMPSON: That's absolutely correct.
DE LA POER: Right. Fine. So perhaps not quality, but special measures is what that should read?
SIMPSON: And special measures would include quality, safety, financial issues and leadership issues.
DE LA POER: I see. So it is to exit 'quality and financial special measures'?
SIMPSON: Yes.
DE LA POER: Yes, I understand. Now, at that time, you tell us that there were ten organisations approximately in your area that required close attention but that the Countess of Chester was not one of them; is that right?
SIMPSON: That's absolutely correct.
DE LA POER: Just completing your CV, I think at present you are the Chief Executive of North Cumbria Integrated NHS Foundation Trust?
SIMPSON: I am.
DE LA POER: And so we are now just going to start with a general proposition which I would seek your comment upon before we come to the detail of this. I am going to put it by way of a statement and I am going to invite your comment upon it, including if in any way you think the statement does not accurately capture the substance of what we are going to be looking at. So the statement is this, that: "Some people may be surprised that it appears that there was a safety net for Executive Directors when there were signs that their organisation had lost faith in them, that that safety net would consist of a well-paid job for which they did not need to compete
and which would be good for their CV which would be found for them." That's the statement. If that does not reflect in any way what we are about to see, then please correct it. Otherwise, could I please seek your comment upon whether you think that that does reflect the position that you were operating in?
SIMPSON: I believe it reflects partly the position but not in totality.
DE LA POER: Which part of the position has been omitted from that statement?
SIMPSON: So the -- there was -- I wouldn't describe it as a safety net. There were organisations which were having difficulty where sometimes the removal of an individual enabled the organisation to readjust and get back on track and the individual would be given a short term opportunity, not in the same type of role, but to reconsider their position, to reflect on what had occurred, to see if they could rebuild their -- their career going forward. It was often not as such a highly paid role as the one that they were leaving and there were checks and balances in the system.
DE LA POER: Well, we will unpack --
SIMPSON: Sure.
DE LA POER: -- a lot of that in our questions. I mean, not necessarily such a high paid role implies that sometimes it would be equally well paid as their previous role, do you agree? That's what "sometimes" means in that sentence?
SIMPSON: I understand that. But from my experience, where I have facilitated any moves it hasn't been at the same level of pay.
DE LA POER: Also the fact that it is not as well paid as their previous job still may mean that it is a very considerable amount of public money; do you agree?
SIMPSON: I agree with that.
DE LA POER: Not to put too fine a point on it, a six-figure sum potentially?
SIMPSON: Correct, correct.
DE LA POER: In other sectors, where an individual has for good reason been removed from their position, they can't expect that there will be sitting above them an organisation that will ensure that they continue to get paid for the next six months at a substantial rate but it appears that in the world that you were operating on, that did occur; is that fair?
SIMPSON: That, that's -- that's -- that's fair and it is part of the contractual arrangements of individuals, the terms and conditions that need to be adhered to as part of the -- a process for anyone leaving an organisation.
DE LA POER: Well, if a person is dismissed from their work for acceptable employment reasons, which can include that they have entirely lost the faith of their organisation and they are in an untenable position due to that loss of faith, and there I am paraphrasing, not giving an expert employment opinion, but in, in that situation, the contract doesn't require them to be paid anything for the next six months?
SIMPSON: So this is straying into an area which is not my expertise, that's where we have legal advice and HR advice around the contractual arrangements for an individual. When we come on to discuss this particular individual, advice was sought as to what was appropriate and within the contract. And if they are dismissed it's quite different to leaving employment or having a facilitated move for a period of time.
DE LA POER: Well, we'll come to the detail of it. And we will start, please, by just discovering, did you know Tony Chambers before you became involved in the situation you were invited to help manage?
SIMPSON: No, I didn't.
DE LA POER: Did you know Sir Duncan Nichol before that situation arose?
SIMPSON: I knew of him, but I didn't know him from his previous roles that he had held in the NHS.
DE LA POER: So you knew of him but --
SIMPSON: I knew of him.
DE LA POER: -- you had never spoken to him?
SIMPSON: No, no.
DE LA POER: Tony Chambers first. Did you know of him in terms of --
SIMPSON: No.
DE LA POER: -- a reputation?
SIMPSON: No.
DE LA POER: You see, you do tell us in your witness statement that you knew something about Mr Chambers. You say at paragraph 22: "My impression which I would have picked up from colleagues [and it may be that this impression only arose once you were asked to be involved] was that Mr Chambers had quite a strong personality and was known for being very demanding and at times could be perceived as somewhat arrogant."
SIMPSON: So, again, I am very clear, I did not know Tony Chambers before I moved into that role --
DE LA POER: Yes.
SIMPSON: -- in 2016. As things emerged, I was made aware of people's views and opinions of him.
DE LA POER: Yes, and you have summarised the views and opinions of him there.
SIMPSON: Yes.
DE LA POER: I mean, you haven't identified anything that might be described as a positive quality there?
SIMPSON: No, I haven't.
DE LA POER: Indeed the negative qualities that you have identified might be thought by some to mean that he was not ideal leadership material?
SIMPSON: It could be perceived that way. But then if we looked at other metrics, the organisation, which is under his stewardship and leadership, was rated "good" by CQC. The performance metrics were good. So there was -- from a positive perspective, there wasn't anything in 2016 that I was aware of that would lead me to believe that -- I know these conversations around the negativity of Mr Chambers weren't outweighed by some of the positives from the organisation.
DE LA POER: Learning that reputation, and that's simply you acting upon what you knew about, did you at any point say to anybody: I just wonder whether or not we need to pause here in terms of this particular individual and look a little bit more carefully at what
might have gone on, given that he is perceived to be very demanding and somewhat arrogant? Did that, did that thought process cross your mind?
SIMPSON: No, it didn't, because these were conversations. They weren't evidence-based statements. They were people offering their views about Mr Chambers.
DE LA POER: We will come back to, in a little more detail in a moment with Mr Chambers, but let's just return to Sir Duncan Nichol?
SIMPSON: Yes.
DE LA POER: You knew of him. What did you know of Sir Duncan Nichol before you first spoke to him?
SIMPSON: That he had been a very senior manager in the NHS, that he had credibility, that he understood the workings of the NHS and that he had taken a role as chairman where he could bring a lot of his experience to bear to managing an organisation.
DE LA POER: Were you aware of the police investigation at the Countess of Chester once it began in May 2017?
SIMPSON: I was, yes.
DE LA POER: Did you understand that that related to the neonatal unit or at least the paediatric department?
SIMPSON: I was very vaguely aware of what the police investigation was, but not the detail and substance of it.
DE LA POER: I am not suggesting any level of detail, but just in generality that it related to babies or young children being murdered?
SIMPSON: I don't think -- I don't think I understood it to babies and young children being murdered. I knew there was a police investigation into a number of concerns in the neonatal unit.
DE LA POER: Neonatal unit. Did you at that time understand if it wasn't so specific to murder that the police investigation might include corporate manslaughter --
SIMPSON: No.
DE LA POER: -- or something similar?
SIMPSON: No.
DE LA POER: Did that thought ever cross your mind in the course of all your dealings, that that might be something that they were looking at, given that you didn't know the detail of it?
SIMPSON: No.
DE LA POER: So we are going to look at your contemporaneous log that you have kindly provided us with. But before we do, the first entry in the timeline in fact isn't in your log because I think it was a phone call that came in and it was before you started logging from your colleague Mr Dalton, is that right, so let's
just work through what Mr Dalton told you. Firstly, he was at the time the Chief Executive of NHS Improvement?
SIMPSON: He was, yes.
DE LA POER: It was 17 September of 2018; is that right?
SIMPSON: That's right.
DE LA POER: You were told by Mr Dalton as you recount in your statement that there was to be a vote of no confidence by the clinicians in Mr Chambers?
SIMPSON: That amongst other things, yes.
DE LA POER: I beg your pardon?
SIMPSON: That amongst other things, yes.
DE LA POER: Amongst other things, what else did he tell you?
SIMPSON: That there were concerns about the relationships in the board which was becoming dysfunctional at Countess of Chester and his instruction was to work with Sir Duncan Nichol to resolve that, which was to facilitate a move of Tony Chambers.
DE LA POER: Now, the dysfunctional relationships, you put in your statement that your assumption was that: "... the vote of no confidence was due to a breakdown in the relationships between the clinicians, the Executive and the board" and you go on to say "rather than anything specifically relating to the
events the police were investigating". Now, I just want to invite you to consider that assumption. I mean, at the time, the Countess of Chester was really in an almost unique position, certainly a unique position for any Trust in that year, wasn't it, that it was the subject of a very intense police investigation?
SIMPSON: It was but the police investigation was being dealt with by another part of the NHS. It -- it was a separate investigation which I wasn't aware of the details of and my instruction was clearly about a dysfunctional board. The police investigation or the concerns by the clinicians was almost a separate issue but led me to believe this was contributing to the dysfunction of the board.
DE LA POER: Well, it was the clinicians who were driving the vote of no confidence?
SIMPSON: Yes.
DE LA POER: And just, again, to return to this point about the police investigation?
SIMPSON: Yes.
DE LA POER: I appreciate you say that it's being dealt with by someone else but here you are being told about a board or an organisation which is the subject of
a police investigation. Did it not occur to you that the two might be related in some way, that the one might be related to the other?
SIMPSON: Absolutely not. At that time, what was conveyed to me was that there was a board that was struggling, there were relationship problems within the board, it was dysfunctional. In addition, there was a potential vote of no confidence from clinicians, which does happen, and I was instructed to go in and to help resolve that. There was never any information given about aligning the police investigation with the dysfunctionality of the board, details of that police investigation. It was said almost in passing the main focus of the conversation with my superior, the Chief Executive, was this board was dysfunctional, it was getting worse, we needed to go in and support the chair.
DE LA POER: You have been calling them clinicians so far, but you knew it was the paediatricians, didn't you?
SIMPSON: I did.
DE LA POER: So again, just reflect on that. The neonatal unit is the subject of a police investigation. The paediatricians are pushing for a vote of no confidence. You made no connection whatsoever in your mind at the time that there may be a relationship between the two?
SIMPSON: No, I didn't. And when I have said there about paediatricians, I didn't say neonatologists, which are linked much more to a neonatal unit. Paediatricians can be community paediatricians, hospital-based paediatricians, it doesn't always link to them being involved with the neonatal unit.
DE LA POER: Given all of your experience in the NHS and bearing in mind this is a district hospital which didn't in fact have any neonatologists, in fact all of the paediatricians will work on the neonatal unit which is we know what happened. So is that really a line of reasoning that is sustainable in terms of you thinking about whether the two are connected?
SIMPSON: I believe it to be so. I had 72 organisations for which I had oversight. I wasn't familiar with the Countess of Chester. I wasn't familiar with the workings or the sort of services they provided other than in oversight, I had a team of people who were working more closely with that. So I think it was reasonable at the time on the information I was given not to make that association.
DE LA POER: So in the balance of things in that first conversation, was it the paediatricians that were causing the need for intervention by NHS Improvement or was it the other board members?
SIMPSON: My belief was it was the other board members.
DE LA POER: All right. We will have a look through the contemporaneous notes and see which appears to be talked about the most. But Mr Dalton, you tell us, asked you to speak to Sir Duncan?
SIMPSON: That's right.
DE LA POER: And the purpose of that conversation as you tell us was to assist him with the relocation of Mr Chambers?
SIMPSON: That's right.
DE LA POER: Then you add this: "It was not unusual for NHS Improvement to take the lead in supporting Trusts to resolve these types of situations."
SIMPSON: (Nods)
DE LA POER: Just help us to understand why it was for NHS Improvement to relocate members of staff?
SIMPSON: In part, my understanding is that is a function that had developed over a period of time. It was to secure the retention of highly skilled, highly trained managers in the service if that was appropriate. It was sometimes to enable a board to move on, where it had become dysfunctional, so that it continued to do its daily business and providing services for patients.
So NHSI had taken on that role as a facilitator from one organisation to another. It wasn't something that was done on a regular basis. We didn't do it every week. But there were occasions when it needed to step into that space and act as the intermediary between the organisation where the difficulties were and providing a space where somebody could reflect and determine what was right for them with the skillset they had in terms of moving on.
DE LA POER: You tell us that you use this important phrase that it is to move people on 'if appropriate'. What investigative steps did you take to check that it was appropriate in this situation?
SIMPSON: So the first -- the first step in that was being clearly instructed and advised by the Chief Exec of NHSI. So my relationship with him was one where I was trusting, I was believing, I sought the information from him, I listened to what he said and then I acted on that. Steps that I took to enable that to make sense in the world within which we were working was further conversations with the Chair of Countess of Chester, and what I heard from the chair of the Countess of Chester was aligned to what I heard from the Chief Exec of the NHS.
I then sought information and advice from my regional team who were working more closely with that organisation, that there wasn't a -- a checklist of questions that would be asked specifically to satisfy whether a -- a move was an appropriate move to take at that time.
DE LA POER: Because if we think about it, I mean, what we are going to see that you do is find a role that hadn't been advertised, was not going to be the subject of any competition or rigorous examination and you were going to facilitate, to use your word, Mr Chambers going into that role. Now, he didn't in fact take it up but that is besides the point. What you were doing was effectively moving him into that role without any oversight, transparency or governance about his suitability to do that job; do you agree?
SIMPSON: No, I don't agree with that. I think the -- the movement of Mr Chambers to another part of the organisation was something that was well thought through. I was seeking roles which were not the equivalent status of the role that he was in, so it was not a Chief Executive role he was going into. It was a role and a function that needed to be undertaken in the areas that I sought so I looked at STP, who were developing at that time and required assistance with the work that they were doing. The organisation that he would go to needed to be satisfied themselves that a) he could add value to that role and that they were satisfied that he could work with the team, et cetera. So although not overt tests against a checklist, there was lots of information that was sought to satisfy myself, to satisfy NHS England, that this move would be an appropriate move.
DE LA POER: This was not a robust process, was it?
SIMPSON: On reflection it wasn't a robust process as it could have been.
DE LA POER: Well, what you tell us at the end of your statement is if you had known what you know now, you wouldn't have done it?
SIMPSON: That's correct. Yes.
DE LA POER: And there's an awful lot of information that you could have found out at the time which would have told you quite a lot more about what was really going on, wasn't there?
SIMPSON: My job at the time was to respond to the request from the Chief Exec who had had a discussion with the chair of Countess of Chester and who had determined between them that the best route for their
Chief Exec to enable the organisation to move forward was for him to move out for a period of time.
DE LA POER: You yourself were an extremely senior person within NHS Improvement, aren't you, at that time?
SIMPSON: I was, yes.
DE LA POER: You would be expected to use your judgement and act with a degree of autonomy, and it wasn't a: you must make this happen at all costs instruction. You would be expected by your Chief Executive that if any warning signs came up in the course of you doing it, to raise those?
SIMPSON: (Nods)
DE LA POER: But you didn't yourself seek to verify the exact circumstances behind the vote of confidence, did you -- vote of no confidence?
SIMPSON: No, I didn't seek that, no.
DE LA POER: You see, we know that Sir Duncan Nichol was involved in a to and fro between the Consultant paediatricians and Mr Chambers and there were documents exchanged setting out a long list of grievances. You may have become aware of a table that was created, setting out all of the different ways in which Mr Chambers was said by the paediatricians to have mismanaged and mishandled their concerns. And that was all going on in the Countess. But how
was it that you didn't ask questions that might have revealed that?
SIMPSON: So I am very disappointed that that information was not shared with me. That should have been something from the discussions that I was having with Sir Duncan that I had had with Ian Dalton that should have been brought to my attention. I didn't know what I didn't know at that time. I wasn't aware that there was a full list of tables. It was never presented to me that this is an organisation that's dysfunctional now, there are board issues, there are relationship issues, and there's a big driver here around the paediatricians. That was -- those, those two issues were not brought together and shared with me at the time. So I acted in good faith in terms of the information that was presented.
DE LA POER: Well, did it occur to you that in fact Sir Duncan Nichol may himself have been involved in the problems that gave rise to the paediatricians' concerns?
SIMPSON: No, I had no reason to suspect that.
DE LA POER: Well, we have got a board that's dysfunctional and a department that is extremely unhappy, a department which itself is the subject of a police investigation. Is it not common sense that Sir Duncan may have been involved at some stage in the management of the concerns
of the paediatricians, that he might have attended some meetings and been notified about things at board level?
SIMPSON: So there was a complete disconnect between what I was told in terms of the board and the dysfunctionality of the board and the work with the neonatal unit and the paediatricians. That was not brought into the conversations in terms of this is the full picture that's emerged, this is why we need to take some action. Sir Duncan may well have spoken about that to Ian Dalton but it was never conveyed to me. I was acting on the information that was available at the time.
DE LA POER: So let's move on to the first item within your chronology. It's having been given this instruction by the Chief Executive, we go to the following day forgive me, two days later, 19 September, INQ0101357 and we will start at page 1, that is going to come up on your screen in a moment but I am sure, Ms Simpson, that you can tell us that this doesn't necessarily end up in exactly chronological order when one looks at the dates down the left-hand side, I don't know if that's something that you were aware of before I have drawn it to your attention. Did you realise that?
SIMPSON: No.
DE LA POER: Well, it's not a criticism, sometimes these documents can re-organise themselves, but we will just be alert that as we move through the document, sometimes the dates are going to move around a little bit?
SIMPSON: Okay, thank you.
DE LA POER: Please, there's no criticism implied by that whatsoever. We can see the first entry is a call between you and Sir Duncan Nichol. You are recorded as advising that it was in no one's interest to go ahead with a vote of no confidence against the CEO and it would be helpful if it could be prevented. So firstly, the substance of your focus here is the -- the vote of no confidence, isn't it, by the paediatricians, not the dysfunction at board level. That's what's being talked about here; is that right?
SIMPSON: Yes, these were my notes, I may not have captured everything, but you are quite right, that is what I have got as the first item, yes.
DE LA POER: Yes. Why was it in no one's interests for that vote to go ahead if that vote was well-founded?
SIMPSON: I was thinking of that from the -- the public's, the patients' perspective. Once it is out in the public domain that there's a vote of no confidence then the general public who are attending the hospital
tend to become quite anxious. There's -- there's lots of misinformation that can go around and for me it was about the stability of the organisation continuing to provide services for patients. So the vote of no confidence would have destabilised things in my view.
DE LA POER: I mean, a vote of no confidence is a transparent part of due process, well recognised, isn't it?
SIMPSON: It is.
DE LA POER: And my question deliberately had the phrase "if well-founded" because sometimes it's necessary for an organisation to make clear to an individual who is failing, if that be the case, that they are failing?
SIMPSON: Yes.
DE LA POER: So that the whole matter can be brought to a head and transparently set out that there is no confidence in that individual from the organisation. I mean, that's an important part of how organisations operate, isn't it?
SIMPSON: It is.
DE LA POER: So again, I just -- with the emphasis on the words that I included last time, how is it in no one's interests for that vote to go ahead if it is well-founded?
SIMPSON: It would be if it was well-founded. But, again, it was based on the information that I had available to me which was there's a potential vote of no confidence. That sometimes happens in organisations. I -- I was not clear to what level that had got to. In my mind I was thinking about, as I said, the -- the impact of that on the population that Countess of Chester served.
DE LA POER: I mean, at this stage you didn't have enough information to assess one way or the other about whether the vote of no confidence was well-founded, did you?
SIMPSON: No, I didn't. But again I would have expected that to have come through from the earlier conversation with Ian Dalton if that was a lot of information to support that, that assertion.
DE LA POER: Did Mr Dalton give you the contrary position, that in fact this was a group of malcontents who were causing trouble and that there was nothing in their concerns?
SIMPSON: Mr Dalton didn't give me any information about the paediatricians' vote of no confidence et cetera.
DE LA POER: So you had insufficient information to assess one way or the other whether or not the vote of no confidence was well-founded?
SIMPSON: That's correct.
DE LA POER: And yet your first piece of advice is to say that it's not in anybody's interests?
SIMPSON: Yes, and that was -- that was only a piece of advice in a range of issues that were discussed on that call.
DE LA POER: It goes on to identify at point 1, the second part: "It was recognised that Tony Chambers could not continue in his current role." Now, is that because it was known to you at that time that it was expected that the vote of no confidence would succeed?
SIMPSON: No. That was on the basis of the information that the board was dysfunctional.
DE LA POER: Well.
SIMPSON: It was -- it was separate to the issues about the clinicians and the vote of no confidence.
DE LA POER: We don't -- we don't see anything about board dysfunction in this note, do we?
SIMPSON: No, we don't.
DE LA POER: And in fact if we look at point 2 we return to the topic of vote of no confidence: "DN confirmed that 72 hours previously to this call the clinicians brought to his attention that they wished to press on with a vote of no confidence. DN convened the NEDS and they were made aware of the emerging position. Lyn Simpson was made to believe that there may be a secret ballot of members this afternoon." So mention of the Non-Executive Directors but no suggestion of dysfunction, the focus is upon avoiding the clinicians' vote of no confidence, isn't it?
SIMPSON: But these notes were made for my benefit in order for me to refer back to them. They weren't a detailed transcript of the discussions that I had had on those calls. I believe that I have highlighted the points that I would need to come back to over time. The dysfunctionality of the board was something I was familiar with from a number of other organisations that I had worked with.
DE LA POER: But if the focus was the dysfunctionality of the board, it would be odd, would it not, to leave out mention of the focus?
SIMPSON: I -- I can't respond to that now. I can only see what I've recorded at the time. But to assure you that was my driving force in terms of the interaction with the Countess of Chester.
DE LA POER: We can then go on to 3. You and Sir Duncan Nichol agree that the suggested way forward was to prevent the vote of no confidence and that
Sir Duncan Nichol -- so this is you agreeing that the chair should try and talk the paediatricians out of their vote of no confidence; is that right?
SIMPSON: I'm not sure that's what was fully meant by that.
DE LA POER: What does --
SIMPSON: I am suggesting that to -- he understands the rationale for the vote of no confidence, what alternatives there might be and whether that needed to take place. He needed to be sure, he was the leader of that organisation of the chair and he needed to be sure that if that was going to occur, that there was no other route than a vote of no confidence.
DE LA POER: What does the word "prevent" mean?
SIMPSON: It literally means to stop something.
DE LA POER: That's what you wrote?
SIMPSON: It is. But, again, these were my notes, that's not what I was meaning to stop a vote of no confidence.
DE LA POER: So you wrote "prevent", but you meant investigate the reasons behind?
SIMPSON: Yes, some of this was shorthand notes for me.
DE LA POER: B: "To ensure that Tony Chambers does not go back on site."
Why were you agreeing that Mr Chambers shouldn't go on site?
SIMPSON: Because I was trying to defuse -- create an environment that would defuse the situation where the board members were very unhappy with each other and were not focusing on providing the direction and leadership that the organisation required.
DE LA POER: You said the board members are unhappy with each other. Isn't it that the board members were unhappy with Mr Chambers?
SIMPSON: In part, yes. But I think my understanding was they were unhappy with each other and the different routes that were being taken in terms of the options available to them to deal with Mr Chambers, which is why we had been asked to be involved.
DE LA POER: So the extent of the disagreement between everyone but Mr Chambers was: how do we deal with Mr Chambers?
SIMPSON: Yes.
DE LA POER: But they were united that something needed to be done about Mr Chambers?
SIMPSON: Yes, yes.
DE LA POER: They were united with the paediatricians who also thought that something needed to be done about Mr Chambers, and that the world should know that they
had lost his confidence?
SIMPSON: I -- I really can't comment on that second piece because I wasn't aware that they were united about the paediatricians. That was not brought to my attention.
DE LA POER: Well, the paediatricians are driving this vote of no confidence; is that right?
SIMPSON: Yes.
DE LA POER: So they want something done about Mr Chambers.
SIMPSON: Yes.
DE LA POER: The board members all want something done about Mr Chambers, they just can't agree on what?
SIMPSON: Yes.
DE LA POER: So they are united that something must be done about Mr Chambers?
SIMPSON: They may well have been but at that time I was -- I wasn't aware of what the issues were with the paediatricians.
DE LA POER: Sir Duncan?
SIMPSON: It could have been a range of issues.
DE LA POER: Did you say to Sir Duncan, what is it that's upset the paediatricians so much that they are talking about secret ballots and insistent upon a vote of no confidence?
SIMPSON: I'm sorry to keep labouring the point but I must say again the -- the issue about the paediatricians was not the issue why I was requested to get involved with the organisation and help facilitate the move of Tony. So I couldn't bring the two issues together because I wasn't aware that -- I was aware there was a police investigation going on but very loosely aware of that. That was taking its own course of action and I was not the lead officer in that role.
DE LA POER: My question in the context of the discussion that you were having --
SIMPSON: Yes.
DE LA POER: -- about the paediatricians pushing for a vote of no confidence is why didn't you ask Sir Duncan Nichol: what is it that's upset the paediatricians so much?
SIMPSON: I can't respond to that. I -- I don't recollect why I didn't ask that.
DE LA POER: Was it the position that you just didn't want to know the detail, because you were simply concerned --
SIMPSON: No.
DE LA POER: -- to carry out the instruction?
SIMPSON: No.
DE LA POER: And it did not matter to you what the reason was, you just needed to get the position sorted?
SIMPSON: No, that would not be the case.
DE LA POER: Can you offer an alternative explanation for why you did not show curiosity about what was driving this?
SIMPSON: I can only advise that it was not raised as an issue in terms of its importance. I was not given the full details behind that. It wasn't raised by my superior in terms of the rationale for going in and supporting the organisation. So it was in my view a police investigation taking place, a potential vote of no confidence by paediatricians. I did not know the reason for that. That was being dealt with separately. This was about I am struggling, we have got board problems, relationship problems, I need to find a way to help Tony move to a different place.
DE LA POER: Next entry that I will ask you to look at is the third one. This is a call with you and Tony Chambers and the summary of your report to Mr Chambers of what you had heard from Mr Dalton was to advise the situation at the Countess of Chester was getting difficult and potentially a vote of no confidence. So, again, the focus here is on the vote of no confidence, isn't it?
SIMPSON: No, I don't think it was. I -- I believe that I said the situation was getting difficult. That was about the board relationships, that was about the interactions and in addition, although I haven't put in there in addition, there was the potential for a vote of no confidence.
DE LA POER: All right. Well, we will put aside the position of no confidence, we will just go back to that first call, please. So we can see we are working our way down 3, we have got the prevent vote of no confidence, we have looked at that. We have looked at Mr Chambers not going back on site. You are now considering alternative options. We see that at the end of B. To agree that if an alternative option for six months could be found that Mr Chambers would not go back to the Countess of Chester?
SIMPSON: (Nods)
DE LA POER: That if a substantive post could not be found then Mr Chambers would need to be made redundant from the Trust and that you were going to seek some expert advice. So right at this very early stage, you are explaining to Sir Duncan what you have been told to do
by Mr Dalton which is that you will find a place for Mr Chambers to go?
SIMPSON: A temporary placement for Mr Chambers, yes.
DE LA POER: A temporary placement that will be good for his CV?
SIMPSON: Not good for his CV but would enable him to reflect, to reconsider and to determine where his career would go in the future in the health service.
DE LA POER: Did you ever say to anybody in the course of this that this would be -- that the potential placement that you were going to find would be good for Mr Chambers's CV?
SIMPSON: I am not aware that I said that, no.
DE LA POER: So let's just go back to the telephone call that we were looking at. Mr Chambers, we have covered the bit about the vote of no confidence. Let's go over the page. You are here acknowledging in the course of your conversation with Mr Chambers, the police investigation, you are asserting it's separate from the vote of no confidence issue?
SIMPSON: Can you -- can you just point out where that is for me, please?
DE LA POER: The top line on screen: "LS recognised that the investigation piece was going on its own route with the police involved and that was separate to the vote of no confidence issue"?
SIMPSON: Yes, yes.
DE LA POER: That is what I just drew to your attention. So were you telling Mr Chambers that the police investigation was separate to the vote of no confidence issue?
SIMPSON: I was relaying to Mr Chambers what my understanding was, which that there was a police investigation, that the vote of no confidence I wasn't aware was linked to the police investigation.
DE LA POER: What did Mr Chambers say to that?
SIMPSON: I really don't recollect what he said to that.
DE LA POER: Then we see we the return to this subject of vote of no confidence: "Paediatricians are keen to go down the route of a vote of no confidence and [Sir Duncan Nichol] was trying to prevent this." So we see the word "prevent" again?
SIMPSON: I do. Inappropriate use of language in my -- my log. I accept that.
DE LA POER: But you have twice used the word that means to stop when you meant something different; that is one explanation?
SIMPSON: Yes.
DE LA POER: The alternative is that that is what is
happening and that is what you are recording?
SIMPSON: No, I don't think that was what was happening. I do think on reflection it was an inappropriate word used because that was not what I was implying at the time.
DE LA POER: Why did you use it twice?
SIMPSON: I'm sorry, I don't recollect why I used it twice. These were my notes, my log. It was simply an aide memoire for me.
DE LA POER: So we then see the advice that you tendered, which was Mr Chambers to work off-site over the next week or so, which would give you time to look for alternative options, that you are to talk to Mr Chambers about this as not sure another CEO post would be right, or bring Mr Chambers into NHS Improvement. Why would a CEO post not be right?
SIMPSON: Because I think it was about time, it was a timing issue, it was about the opportunity for Tony to reflect on his behaviour, his actions within the board, what had created the tensions, the dysfunctionality of the board. Therefore, moving directly to another CEO role in my view he wouldn't have time to reconsider that and think about his future career to go into a role which didn't have the accountable officer status would enable
him to see how other boards operate, how other parts of the system work and maybe get some personal insight as to how he operated within Countess of Chester.
DE LA POER: Did he need to be rehabilitated?
SIMPSON: I'm sorry?
DE LA POER: Did he need to be rehabilitated?
SIMPSON: It's -- it's a form of words that could be used. I think it was more about personal insight and understanding and thoughtfulness about things that he may not wish to replicate in terms of his skillset in the future.
DE LA POER: Because rehabilitation generally goes hand in glove with the fact that you have done something wrong.
SIMPSON: It does, yes.
DE LA POER: So why would that be an appropriate description?
SIMPSON: Well, I have just tried to explain what I -- I hoped was the purpose of the facilitated move. I wasn't apportioning blame, I wasn't using words that are descriptive and synonymous with other words. Again, I would go back to this being a log for my use, it might be my shorthand in terms of how that's interpreted.
DE LA POER: We will look at something you record Mr Chambers saying to you at item 3. I'm not sure what
the first part is, "TC con med", maybe "commented", possibly?
SIMPSON: I think so.
DE LA POER: Anyway: "... he would step aside and be as flexible towards this as he can be. However, TC advised he would not want ['it', I think that should be] to be a cost towards his career and he would want to maintain his status as CEO."
SIMPSON: Yes.
DE LA POER: Is that what he said to you?
SIMPSON: Yes.
DE LA POER: What did you understand him to mean by maintaining his status?
SIMPSON: My interpretation of that was that he would be willing to participate in a facilitated move, but he wanted to operate as an accountable officer as a Chief Executive into a role that he would be moved into.
DE LA POER: Well, maintaining status, he is not saying he wants to be a CEO, he's saying he wants to maintain the status of the CEO, in other words be perceived by the world in those terms, to have the plaudits and the accolades that go, the recognition that go with being a CEO. Is that what he was telling you?
SIMPSON: I don't know, that would be making assumptions on my part. My understanding of it was he would prefer to move to a role which was the a Chief Executive role in another provider organisation that would be his preference.
DE LA POER: Well, wouldn't your notes have read he wanted to be a CEO rather than maintain his status?
SIMPSON: Again, that's, that's how I would record something as an aide memoire for future meetings.
DE LA POER: He doesn't want this to damage his career: "... advised he would not want it to be a cost towards his career ..."
SIMPSON: That's -- I have recorded that, that must have been something he said that's led me to believe that.
DE LA POER: It would be good for his CV, is that what he was communicating to you, I don't want this to be a black mark against my name. It needs to -- I need to have something on my CV that looks good. So that this isn't --
SIMPSON: Yes, that is an interpretation of what he would have meant.
DE LA POER: Let's look at 4: "LS advised Duncan Nichol has a meeting with the clinicians and that he would be looking to get them to pull back from the vote of no confidence."
So just reflect upon how sustainable your suggestion is that Sir Duncan Nichol was not trying to prevent. You have used a different phrase here: get them to pull back?
SIMPSON: I have.
DE LA POER: That is what's going on here, isn't it?
SIMPSON: There was never -- there was never a request from me to stop a vote of no confidence. I was asking -- maybe some loose language in my log, but my recollection was that I was asking Duncan Nichol to pursue -- be clear that he was confident that he pursued all avenues, to support the clinicians and that a vote of no confidence was still what they wished to pursue.
DE LA POER: I just want to invite you to reflect upon the loose language. You have twice used the word "prevent" and then you have used the phrase "get them to pull back". They all mean the same thing. You have used them across two meetings in three different parts of -- across your notes; isn't that the reality here?
SIMPSON: No, because I think if I had truly meant to stop, I would have used the word to stop a vote of no confidence. I didn't use the word "stop".
DE LA POER: You used the word "prevent"?
SIMPSON: I did. Because when I was using the word "prevent" I was asking him to look at a range of options.
DE LA POER: "Prevent" means exactly the same as "stop", doesn't it?
SIMPSON: It depends in the context I think in which it's used.
DE LA POER: Well, I'm sorry I am going to have to challenge you on that. You give me an example of where it means something different?
SIMPSON: I would need to think about that.
DE LA POER: All right. Well, I don't want to put you on the spot, further about it?
SIMPSON: Thank you.
DE LA POER: If you need time, so be it. We will move on. Page 4, please. In fact, I think we need to go back to page 3 just to see the timing of this. This is on the 20th and we have now got five people on this call, are they all NHS Improvement?
SIMPSON: Apart from one which was NHS England.
DE LA POER: So this is quite a substantial amount of the resources of very highly powered people at NHS England --
SIMPSON: Yes.
DE LA POER: -- that are being expended on this issue?
SIMPSON: Yes.
DE LA POER: Do you agree?
SIMPSON: I agree.
DE LA POER: So a separate cost to the public purse in this meeting, would you agree?
SIMPSON: I would agree.
DE LA POER: Let's go and have a look at what's said on the call. We are not going to look at it all. We can see that: "Maria advised that if after the allocated time period with a new role the CEO did not secure substantive employment elsewhere, the Trust [the Countess of Chester] would find it difficult to make him redundant as he would still be considered as the CEO post and the issue would be what he is being made redundant from. It would be a case of terminating ..." Then it goes on to say his employment. So this is a meeting you are at. The context for this there is a discussion about moving him to a temporary position?
SIMPSON: Yes.
DE LA POER: Then making him redundant at the end of that, but that effectively whilst in that temporary position he would still have the status of CEO, even though he wouldn't be a CEO; is that right?
SIMPSON: Yes, I think we were exploring the options then of what the alternative position would be. If he did go to another CEO role what that would mean and this is the legal HR advice that Maria was providing. But it was never my intention to facilitate a move for Tony to the equivalent of a CEO role.
DE LA POER: We can see what the alternative arrangements are at 2.
SIMPSON: Yes.
DE LA POER: You made it clear to the chair that when looking at alternative arrangements this would not be a CEO post and within NHS Improvement and you list the options. So when we see what Maria is advising about she is advising about something which is not a CEO role, that is the alternative arrangements, but she is saying that he would still be considered to be a CEO in that alternative role. Do you see?
SIMPSON: I think I understand what you are's saying and in the context of me recording this, I think this was a note for me to say this was legal HR advice that we -- that the Countess of Chester would need to take a view on. That was something that I was not qualified to offer an opinion on.
DE LA POER: Let's look at page 5. So your colleague
Graham here in the centre paragraph: "There is the police inquiry ongoing and Graham queried what would happen at the end of the Inquiry if there was to be an accusation against the senior leadership. Confirmed that this would be one to think about when the investigation comes to a close, however the interim placement would not dissolve the CEO's responsibility." So let's just understand what this is saying. There's a police inquiry that might, it is being hypothesised, end in an accusation against the senior leadership?
SIMPSON: Yes.
DE LA POER: An allegation of corporate manslaughter. What other accusations would the police be making against the senior leadership, given that they were investigating deaths?
SIMPSON: I -- I wasn't aware of that at the time. I did not -- I wasn't fully aware of what the police investigation was, hence the conversation to say we would need to see what the police investigation found and then what the allegations were as a result.
DE LA POER: What did you think your colleague was meaning when he said that at the end of the investigation there may be an accusation against the senior leadership?
What did you think he was saying the senior leadership would be accused of by the police?
SIMPSON: I really can't recollect what he would be thinking of.
DE LA POER: Well, this is a moment in your discussions where somebody -- not you, but Graham --
SIMPSON: Sure.
DE LA POER: -- has brought together the idea that the police investigation may be relevant to how the senior leadership has behaved, including Mr Chambers?
SIMPSON: But then if he had some information that would lead him to believe that he should have shared that at the time.
DE LA POER: It's not whether he has information, he is setting out a hypothetical scenario, 'what if'?
SIMPSON: Yes.
DE LA POER: So you are now -- everyone in the room is now forced to contemplate: well, what we do if that turned out? So you need to think about what happens if they are accused by the police of some crime at the end of it? What seems to be -- it is not attributed to you, but it seems to be attributed to the meeting in some way: "Confirmed that this would be one to think about when the investigation comes to a close."
Now, do you agree that what that's saying is that's not a problem for today, it's only a problem if -- at the time that that accusation is made; that's what that means, isn't it?
SIMPSON: That is what that interpretation of the statement means.
DE LA POER: Doesn't that need to be challenged as a way of thinking about this?
SIMPSON: But the responsibility would lie with the organisation with the Countess of Chester, the police investigation was taking its own route. It was not -- it was not my responsibility to probe that police investigation. It was being dealt with by another arm within the NHS. There was a responsibility for those individuals to share with the Countess of Chester, to share with me in terms of facilitating this move. None of that information was brought to the attention. So hypothetically they are saying in this: what we need to be aware of and cognisant of that there is a police investigation but we will be advised of that at the appropriate time, we can't interfere with that, we need to move on with focusing on the primary purpose which is a dysfunctional board and moving this gentleman on.
DE LA POER: Doesn't it require you, given that you are moving someone who is being contemplated as potentially accused of a crime in the context of his leadership -- that's what's being contemplated as a possibility: that you don't need to wait to find out if that comes to pass before you move him on. Instead you need to find out if that's a possibility at all in the real world, that you need to investigate to make sure that it doesn't turn out that you moved somebody who is then accused of a serious crime. Isn't that the correct way of thinking about it?
SIMPSON: I push back slightly on that because the police investigation, the individual was not accused of anything until the police investigation had come to an end. We were working in good faith that the primary focus of the problem was the board and he was being moved because of his involvement, his leadership in the board. To make assumptions about an outcome of a police investigation at that time would in my view be inappropriate.
DE LA POER: So we are just going to move forward in our timeline, we are going to come briefly off this page and just come to page 10. As I say we are not looking at every single one of these entries, but this is an email to Sir Duncan Nichol, and we can see that you:
"Continued conversations ... to advise. Likely that we will direct him to [a placement], and [you] would like to do that by the end of the week." Then made arrangements to discuss things. Then the note underneath: "Lyn subsequently responded and shared the note above sent to the chair and asked MP and MR whether they should send anything more formal to the chair at this stage? MP confirmed that at this stage there is really nothing else to add. Recognising the Trust's foundation status, our guidance/advice is just that, but we hope it will be accepted and followed." I mean, was NHS Improvement placing pressure on the Trust to act as NHS Improvement wanted rather than how the Trust wanted?
SIMPSON: Absolutely not.
DE LA POER: We are going to come off this document. At the same time we are going to see a message that you sent, INQ0017183. It's just a perhaps a flavour of the emails that you were sending. This is to Mr Barker. "Forgot to pick up in our conversation today whether you would be amenable to accommodating Tony Chambers in the STP for 6 to 12 months supporting Simon. Not heard back from Simon as to how he feels about the request. Would like to land something for Tony if
possible before having a conversation with Duncan Nichol tomorrow/Thursday." This is, would you agree, an extremely informal message?
SIMPSON: Yes.
DE LA POER: What you are effectively saying is can Mr Chambers be accommodated in a role that hasn't been advertised for which he will not have to compete; is that right?
SIMPSON: Yes.
DE LA POER: This isn't a terribly transparent process, would you agree?
SIMPSON: This was in a role which was a temporary role. It was to provide some additional capacity to the STPs which were new and were forming and it wouldn't be a role that was substantive, where you would need to go through an open and a fair process. This was as you do on many occasions second someone in to give some extra capacity, breadth and depth to a particular function.
DE LA POER: Is this the sort of treatment that any doctor or nurse could expect if they lost the confidence of their organisation?
SIMPSON: I'm disassociating the -- the loss of confidence, the vote of no confidence because that wasn't what I was asked to address.
DE LA POER: Well --
SIMPSON: But we do move doctors and nurses around, normally within their own organisation if they are having difficulty in their particular ward or department for a facilitated period of time.
DE LA POER: We are going to go back to your note INQ0101357 and we will go to page 11, 3 October. So we have two people from NHS Improvement I think on this call?
SIMPSON: Yes.
DE LA POER: Three senior people from NHS Improvement talking to Sir Duncan Nichol. We have got a placement being sought for him and then two opportunities and you list the two and you had understood from Mr Chambers by this point that his preference was for Cumbria; is that right?
SIMPSON: That's right.
DE LA POER: Then we get to 5: "This placement would be funded by the Countess of Chester for a period of six months." Now, the Countess of Chester was a Foundation Trust?
SIMPSON: Yes.
DE LA POER: You will know much better than me, Ms Simpson, but would it be right to say that that meant that it was given a very high degree of financial autonomy?
SIMPSON: Yes.
DE LA POER: The money was given to it for it to spend in the best interests of the patients that it served?
SIMPSON: That's right.
DE LA POER: What was being contemplated here is that the Countess of Chester would spend the money that had been given to it for the best interests of the patients that it served to pay for Mr Chambers to work somewhere else?
SIMPSON: (Nods)
DE LA POER: Is that an accurate description of what was going on?
SIMPSON: That's an accurate description. But it would be consistent with what was in his contractual arrangement.
DE LA POER: Well, consistent with his contractual arrangement if everybody consents to it but if a different process is followed, a vote of no confidence, some kind of performance or disciplinary investigation which -- into the matters, dismissal if that's how it all ends up, might be a different position?
SIMPSON: It may be, yes.
DE LA POER: Who did you understand at the Countess of Chester would have to agree to spend this money
benefiting Cumbria?
SIMPSON: In my understanding that would be the small committee of the board which would be the Remuneration Committee which would be chaired by the chair of the organisation.
DE LA POER: Had they, as you understood it, agreed to that at this point?
SIMPSON: I'm -- I am not familiar with what was discussed in their Rem Com committees, et cetera. I would expect that it would have been that's not a decision that an individual would take.
DE LA POER: No, certainly it wouldn't be for Sir Duncan Nichol on his own --
SIMPSON: No, no.
DE LA POER: -- to sign off --
SIMPSON: No.
DE LA POER: -- what may be a six-figure sum out of the budget?
SIMPSON: No, I don't think it would be that level, six figures but --
DE LA POER: High five figures?
SIMPSON: Yes. But he wouldn't make that decision himself. He would need to get his non-executive colleagues to agree with that.
DE LA POER: Now, just one other matter, if you will
forgive me for a moment. If we could go to 24 November -- sorry, page 24, 29 November. Just a phrase that I have already telegraphed to you that I would just like to ask, this is a conversation with Sir Duncan Nichol and the context of this, as you will be able to tell, Ms Simpson, that there has been some toing and froing about how long Mr Chambers should be on his placement. He wanted 12 months, NHS Improvement thought six months, there was talk about when he should be given his notice to make sure that if he hadn't found another job, it would be terminated and that's the context, isn't it, for what we are looking at?
SIMPSON: Yes.
DE LA POER: I understand that you write in this email in the large paragraph that: "Tony Chambers is potentially looking to be seconded to a different organisation to that of our previous discussions ..." Just pause there for a moment. You understood that in fact that he was going to go somewhere differently, he went to Northern Care Alliance. So he didn't in fact take up either of the placements you had found for him.
SIMPSON: Correct
DE LA POER: "... and for a longer period. While overall
approval of the terms of settlement sit with you and your Remuneration Committee I would advise that rehabilitation periods linked to similar settlements in the NHS seldom last more than one year especially where these are funded solely by the employing Trust and please remember as his current salary is above [a figure is given] the host organisation for his secondment will need to seek approval or comment for his salary whilst on secondment." It will come as no surprise to you, Ms Simpson, that I am going to ask you about this notion that there is a standard rehabilitation period within the NHS. Can you help us with that concept?
SIMPSON: I don't believe that there is a -- a standard period of time that an individual would be seconded to another organisation to reassess their position. It very much depends on the context, the situation, the individual, the role that they are going to, how that can be funded, whether that's supported by the regulator, et cetera, so there's not a lift and shift for a six, nine, 12-month period.
DE LA POER: But there is recognised concept of the rehabilitation period --
SIMPSON: My terminology, rehabilitation period.
DE LA POER: -- in an email, so presumably you would expect Sir Duncan Nichol to know what that meant. You wouldn't have said it if you didn't?
SIMPSON: Correct.
DE LA POER: So this is bread and butter parlance for senior Execs within the NHS is it?
SIMPSON: Yes, that that's why I would have used that I agree.
DE LA POER: Yes. So rehabilitation period, this is a recognised thing, is it?
SIMPSON: Well, it's an opportunity because sometimes the individual concerns, if we go right back to the beginning, a dysfunctional board, poor relationships, lack of direction, spilling out into the organisation as a general view is not helpful to patients. Trying to defuse that situation and moving an individual to another organisation, whether we call that rehabilitation, whether we call that a reflection period, can often be the opportunity for the individual who may have had a part to play in the dysfunctionality of the board, but may not be the sole cause of that, to then move on and do something differently. They may move out of the NHS completely. Or they may consider what is right for them and what they can offer in terms of their experience, their competency, in a different place.
DE LA POER: You say it may be called a number of things, you chose to call it rehabilitation period --
SIMPSON: Yes, yes, I did.
DE LA POER: -- didn't you? You say that they may or may not have been partly responsible for the situation they are leaving. But there's been no scrutiny of whether or not they have been, has there, in this whole process?
SIMPSON: So I would -- I would suggest that the scrutiny had taken place at a more senior level in those earlier discussions between Sir Duncan and Ian Dalton and that I was acting as the agent to execute that decision.
DE LA POER: You say: "I think it is poor practice to help move managers around where there have been allegations made about misconduct and I have never moved managers where there has been misconduct that I have been aware of." That is what you said in your statement. Doesn't there need to be a robust process of establishing whether there may be misconduct before people are moved?
SIMPSON: Yes, there does, there does.
DE LA POER: Because otherwise the fact that you don't know about it doesn't mean that it isn't there and there were
a number of markers in this situation, weren't there, that there may be -- put it no higher than that, that there may have been misconduct by Mr Chambers, he has lost the confidence of the paediatric department, it would seem certainly the doctors, the board all want to get rid of him. An explanation for that could be that he has misconducted himself in some way?
SIMPSON: Yes, that is, it's one explanation.
DE LA POER: Yes.
SIMPSON: Again, I was not aware that he had lost the confidence of the paediatricians.
DE LA POER: They were pushing for a vote of no confidence, what else does that mean?
SIMPSON: Well, it -- it doesn't particularly mean that I understood the rationale and explanation behind that.
DE LA POER: Well, people don't ask for a vote of no confidence, do they, in order that somebody is expressed to the confidence of the organisation? They ask for a vote of no confidence because they expect or they hope that it will be found that the individual has lost the confidence of the organisation, isn't that how it works?
SIMPSON: It is how it worked but there has to be a lot of information behind that. What avenues have been explored, what's the evidence to suggest that, how has
that been addressed by the board, et cetera.
DE LA POER: All questions you could have asked?
SIMPSON: I accept that.
DE LA POER: All questions you should have asked?
SIMPSON: I think they are questions that should have been asked before I was involved in the process to execute an action.
DE LA POER: So you would say you have -- despite the fact that you were speaking to Mr Chambers and speaking to Sir Duncan Nichol, despite your seniority, you would say you have no responsibility whatsoever for failing to be more curious?
SIMPSON: No, I wouldn't say that.
DE LA POER: So should you have -- should you have asked?
SIMPSON: I do accept I should have asked some more questions.
DE LA POER: Two reflections to conclude. Should senior managers in the NHS be regulated?
SIMPSON: We absolutely should be.
DE LA POER: So you should be the subject of a separate independent regulator in the same way as doctors and nurses, do you think?
SIMPSON: We should and I am regulated still as a nurse but I -- I do firmly believe that managers should be regulated.
DE LA POER: Do you think that senior managers in the NHS should be obliged to hold to a written Code of Conduct that has as its first duty keeping patients safe?
SIMPSON: Absolutely.
MR DE LA POER: Ms Simpson, thank you very much indeed for answering my questions. I will just look to the back to see if there's -- no, my Lady, I don't think that there are any other questions for this witness.
Questions by LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: Thank you. I have got one or two, if I may, Mrs Simpson, and then you will be able to go. You mentioned a number of times the dysfunctionality of the board and that was the thing that was preoccupying or concerning you the most.
SIMPSON: Yes.
LADY JUSTICE THIRLWALL: That was your focus. Can I just ask you what was nature of the dysfunctionality, what did you know about it?
SIMPSON: That they were -- there was a lot of concerns around the sense of purpose, the leadership and the direction of the organisation.
LADY JUSTICE THIRLWALL: So what does that actually mean?
SIMPSON: So when they are making -- when they are
having their routine discussions about strategically do we move the board in this direction, apart from good, high quality challenging questions they were becoming dysfunctional, because there was just views thrown in. Depending on who you were in the board you were able to try and influence more heavily a direction or an outcome that you wanted to achieve instead of operating as a unified board. If you operate as the unified board you take into account individual's views, you have a clear sense of purpose, you articulate the outcome and then you agree an execution pathway. When you are dysfunctional or not operating as a board you are not making those decisions -- you are not making them in the best interests of the patients, you are not listening to other information that's percolating to the board whether that's through information from wards, departments, through Speak Ups, through a range of things --
LADY JUSTICE THIRLWALL: Sorry, just to cut across you.
SIMPSON: Sorry.
LADY JUSTICE THIRLWALL: In this case, which of those elements applied?
SIMPSON: I --
LADY JUSTICE THIRLWALL: Perhaps deal first of all with the individual views coming from different members of the board, depending on what their role was, what was happening there?
SIMPSON: So my understanding was that some members of the board -- of the board felt that they weren't able to articulate their views, that they were closed down before the full range of skills and interests were taken into account.
LADY JUSTICE THIRLWALL: Who was shutting them down, who was closing them down?
SIMPSON: My understanding was -- and I wasn't present at the board meetings --
LADY JUSTICE THIRLWALL: No, I appreciate that.
SIMPSON: This is secondhand, was that on many occasions that was the Chief Executive who was --
LADY JUSTICE THIRLWALL: That was Tony Chambers?
SIMPSON: It was.
LADY JUSTICE THIRLWALL: Who were you getting that information from?
SIMPSON: From my team who were in NHSI, so that was the Senior Delivery and Improvement Director, the Delivery Improvement Director, where they were working across organisations and beginning to elicit information about how the board and the leadership in that organisation
was working.
LADY JUSTICE THIRLWALL: You got that information when, was that after you spoke to Sir Duncan Nichol for the first time or afterwards, or before?
SIMPSON: It was -- it was afterwards because prior to that, I had no intelligence that this was anything other than, you know, a well-performing organisation.
LADY JUSTICE THIRLWALL: But Sir Duncan told you, did he, that the board was dysfunctional? Or was it in fact that came from your people.
SIMPSON: I -- I think that that is my terminology.
LADY JUSTICE THIRLWALL: Yes.
SIMPSON: Based on the discussion that I had with Ian Dalton in terms of the board is not, not operating as a unitary board, there are problems we need to help Sir Duncan Nichol, the problem is primarily the Chief Executive, he needs to be moved to a different place.
LADY JUSTICE THIRLWALL: Thank you. Are you able to remember which groups or which people on the board, either by their role or their name, were being felt that they were being shut down?
SIMPSON: I'm sorry, I -- I can't say which one it was. I have the impression that it was the majority of the, the Non-Executive Directors. But I -- I don't know which ones or which specific issues it was. It was a more of a generic feeling and supposition that people were articulating.
LADY JUSTICE THIRLWALL: I understand. Thank you.
SIMPSON: If I may just offer something supplementary.
LADY JUSTICE THIRLWALL: Yes.
SIMPSON: When I talked about having 72 organisations to have oversight, that was a large number. There were a small number within that, talked about 10 organisations which required an awful lot of intervention. There were examples there of where there were dysfunctional boards and I would -- was dealing with two at the time and what was happening there was a similar position to people felt unable to speak out, people felt that they weren't able to convey their strength of convictions in relation to an issue they were discussing and the board just wasn't able to provide the leadership to the organisation and the confidence then generally across the organisation about the services it was providing. So it does happen in other organisations and, as I say, at that time I was involved with at least two other organisations where that was the case.
LADY JUSTICE THIRLWALL: But so far as this organisation is concerned, you were satisfied that you had sufficient information to make the judgment that the
board was dysfunctional, in the way that you have described?
SIMPSON: At the time I believe I did. With hindsight now, I can see that it would have been helpful to have asked for some further information.
LADY JUSTICE THIRLWALL: Thank you. When we were looking earlier at the note about the paediatricians and the vote of no confidence, and it said there was a note which said there is going to be a secret ballot of the members. Who was going to be voting in the vote of no confidence? That is reflecting my own ignorance but who would vote? Would it be the members of the board?
SIMPSON: No, I think -- I think that was referring to the clinicians, namely the paediatricians --
LADY JUSTICE THIRLWALL: Yes.
SIMPSON: -- who would have a secret vote which would I am saying this as a personal opinion now which to me would mean that not everybody was of the same view, hence you would do it as a secret ballot and you would be able to discuss, you would be able to, as an individual, put your view forward there.
LADY JUSTICE THIRLWALL: Very well. It's just that it was referred to members and I was wondering what the members were. Was that just your --
SIMPSON: I -- I think on reflection that was the
paediatricians rather than the board itself.
LADY JUSTICE THIRLWALL: Right. Thank you very much. If that matters, I am sure we can clarify that. Does anybody want to ask anything arising out of that?
MR DE LA POER: No thank you.
LADY JUSTICE THIRLWALL: Thank you very much indeed. Ms Simpson, you are free to go now.
SIMPSON: Thank you.
LADY JUSTICE THIRLWALL: Is that a convenient moment to take the break?
MR DE LA POER: My Lady, yes, thank you.
LADY JUSTICE THIRLWALL: So we will start again just after quarter to.
(11.32 am)
(A short break)
(11.49 am)
LADY JUSTICE THIRLWALL: Just before we continue with the next witness, there was a document which had been redacted which we looked at quite near the end of the evidence of the last witness, it was a figure and I have asked that that be unredacted because it is plainly relevant and ought to be a matter of public record. Now, Mr Bershadski.
MR BERSHADSKI: Yes, thank you, my Lady, if I could call Mr Pace, please.
MR IAN PACE (affirmed)
LADY JUSTICE THIRLWALL: Do sit down, Mr Pace.
Questions by MR BERSHADSKI
MR BERSHADSKI: Could you confirm your name please for the Inquiry?
PACE: Yes, it's Ian Pace.
BERSHADSKI: Have you made a statement dated 9 August 2024?
PACE: Yes, I have.
BERSHADSKI: Is that statement true and accurate to the best of your knowledge and belief?
PACE: Yes, it is.
BERSHADSKI: Is it correct that in 2016 you were an associate solicitor in the Employment and Pensions Group at DAC Beachcroft?
PACE: That's correct.
BERSHADSKI: I think you had been with DAC Beachcroft since 2011; is that correct?
PACE: That's right.
BERSHADSKI: You were initially a solicitor there and then promoted to an associate solicitor in May 2016; is that correct?
PACE: That's correct.
BERSHADSKI: Is it right that you would have dealt with disciplinary, grievance, sickness, performance management and Employment Tribunal proceedings in your role there?
PACE: Yes, that's correct.
BERSHADSKI: You tell us in your statement that you didn't have any safeguarding training as such; is that correct?
PACE: That's correct, as far as -- to the best of my recollection, yes.
BERSHADSKI: There wasn't any safeguarding policy at DAC Beachcroft at the time?
PACE: That's correct, to the best of my recollection.
BERSHADSKI: I think you say that that's in line with your experience working at other firms as well; is that correct?
PACE: That's right, that's certainly right.
BERSHADSKI: Is it likely that you would have been familiar with safeguarding principles because they are often contained within employment policies that you would be applying in your role as an employment solicitor?
PACE: Yes, I think that's fair to say and also from experience of advising other health clients. I advised clients in the health sector and the wider commercial sector and safeguarding often came up as an issue.
BERSHADSKI: Now, I just want to briefly go over a number of principles and just ask you whether you would have
been familiar with those safeguarding principles from your work. Firstly, it's correct, isn't it, that a safeguarding referral ought to be made if there is a risk of harm to a child?
PACE: Yes, that -- that would be my overall understanding. What I would say, and as I think I've referred to in my witness statement, I was employed by DACB as an employment lawyer and DACB is a full service law firm, it is an international firm and it has a regulatory team, a healthcare regulatory team, specifically a healthcare regulatory team. I would say that my understanding of safeguarding was such that it was enough to raise a red flag or an alarm, if we can put it that way, so much so that I would get in touch with the regulatory team for more specialist advice.
BERSHADSKI: Now, was it your understanding that there was any particular evidential threshold to make a safeguarding referral or was it simply a question of if there is a concern about a possible risk then a safeguarding referral needs to be made?
PACE: Again, I would say that there was clearly a concern and enough so that I would get in touch with the regulatory team for further advice in terms of
whether a referral should be made.
BERSHADSKI: Yes. Now I am going to come on to the telephone call that you received from Dee Appleton-Cairns at the Trust on 5 July 2016, if I may, and it might be helpful if we just put up the attendance note that you make of that call, that is INQ0101934. Now, Dee Appleton-Cairns tells you that there's been an increased death rate on the neonatal unit which had previously been investigated with no issues found; is that correct?
PACE: That's right, yes.
BERSHADSKI: You tell us at paragraph 22 of your statement that she told you that on that previous occasion an external investigator had been called in to investigate and reached the conclusion that there were no issues to address?
PACE: That's correct.
BERSHADSKI: Is that right?
PACE: We weren't -- or I certainly wasn't involved in that investigation, nor was I aware of it, but that is what I was told on the call.
BERSHADSKI: Yes, and do you recall what Dee Appleton-Cairns said to you about who had conducted that previous external review?
PACE: No, no, no information was given at the time. The call was received on the helpline, the helpline was intended for very short brief advice and as such and that information wasn't provided at that time.
BERSHADSKI: Is it right that Dee Appleton-Cairns told you that an alarm had gone again, although not a physical alarm, but essentially a reporting of again an increased death rate?
PACE: That's correct, that's correct.
BERSHADSKI: She told you that a Consultant had referred to somebody on the unit as "Beverley Allitt"?
PACE: Correct.
BERSHADSKI: Is that right, did you understand that reference to Beverley Allitt?
PACE: Yes, I am familiar with Beverley Allitt.
BERSHADSKI: What did you understand that reference to mean or to indicate?
PACE: That there was potentially a Beverley Allitt was responsible for patient deaths.
BERSHADSKI: Somebody who had been deliberately --
PACE: Yes.
BERSHADSKI: -- killing patients and you understood that at the time?
PACE: Yes, I understood who Beverley Allitt was, yes.
BERSHADSKI: Dee Appleton-Cairns, you record in your note, told you that she was satisfied that there were no malicious issues but that she didn't provide any reason to support that position; is that right?
PACE: That's correct.
BERSHADSKI: Is it right that you were still concerned, notwithstanding the fact that she seemed to think there were no malicious issues?
PACE: Very, very much. So the purpose of the call -- and this is why it was received on the helpline -- was really to address what they perceived to be a breakdown in working relationships on -- on the unit. That's a typical type of call to receive on the helpline where there is a breakdown in working relationships and that was the main focus of her request for advice, how to resolve the breakdown in working relationships. But I did identify from that that actually there was more to this, that red flag that I mentioned earlier was certainly triggered.
BERSHADSKI: I think you are recorded in your note as saying to her that you thought that the employment aspects pale into insignificance compared to the patient safety risks involved; is that correct?
PACE: Absolutely, absolutely I wanted to effectively
switch the focus from effectively what was a relatively minor issue of breakdown in working relationships to clearly a very serious -- potentially very serious matter.
BERSHADSKI: Did it surprise you that a fairly senior person at the Trust was calling you up about the employment aspect of things rather than the rather more serious patient safety issue?
PACE: I -- I wasn't surprised that she was calling me about the employment aspect, that was my role, but yes, I was surprised by the focus and really the need for me to really tease out that information to try and refocus the purpose of the call, if that makes sense.
BERSHADSKI: Given that you say that you were very concerned by this call and I think you say in your statement that you identified a red flag --
PACE: Yes.
BERSHADSKI: -- you call it, at paragraph 28, is it fair to say that you considered that there was at least some risk of there being an individual who had deliberately been harming children on the ward?
PACE: Yes, yes. That's fair to say. The information was limited that was provided, the -- the call lasted -- well, probably 15 to 20 minutes so it was very limited information. But certainly that red flag
was triggered and it was a very serious issue, yes.
BERSHADSKI: Now, you tell Dee Appleton-Cairns on this call that you think she needs some additional support and that you are going to re-direct her to the regulatory team --
PACE: Correct.
BERSHADSKI: -- I think, don't you? Did you consider yourself suggesting straight away that a safeguarding referral or a referral directly to the police be made when you received this call?
PACE: No, as I have said, the information was very limited, it was extremely limited information during the call and it was actually information that I had to tease out on the call and I thought it was important to obtain specialist regulatory advice from the lead healthcare regulatory partner.
BERSHADSKI: What do you mean that you felt that you had to tease out information, are you saying that you perceived there to be a reluctance by Ms Appleton-Cairns to provide you with information?
PACE: I wouldn't say it was a reluctance as such. I think maybe it was a -- maybe -- maybe perhaps not a recognition, perhaps I think that's referred to in the attendance note, how can you be sure? I think -- I can't specifically, but how can you be sure? I just
don't think there is -- I just don't think there was a recognition, perhaps, of the issue.
BERSHADSKI: You go on in your note in the second paragraph to then deal with some of the employment law aspects of what you had been told?
PACE: Yes.
BERSHADSKI: You say to Dee Appleton-Cairns that the Trust should put in place steps to justify a satisfied position that there's a suggestion or evidence that there's a link between the two. Now, the link between the two you mean between the individual who's been called referred to as a Beverley Allitt --
PACE: Yes.
BERSHADSKI: -- and the deaths on the neonatal unit presumably?
PACE: Yes.
BERSHADSKI: Then you say: "The Trust may therefore have a defence although it may be difficult to establish that there is sufficient evidence to put the allegations to her (for example if we decide to suspend)."
PACE: Yes.
BERSHADSKI: Why did you -- given that you had been told that there might possibly be and you had come to the conclusion that there's a risk of there being a Beverley Allitt on the unit, why did you not simply recommend an immediate suspension at that point?
PACE: The position simply wasn't clear. The, the -- the evidence was scarce, very limited information. On the one hand we were to paint a picture it seemed to be all very confusing on, on the NNU at the time. Fingers were being pointed to one another, doctors were pointing the fingers at nurses, nurses were pointing the fingers at nurses, nurses were providing clinical explanations for increase in deaths. It, and among all of this, there was a suggestion that one individual may be involved, it was quite a confusing picture at the time. Based on the very limited information at the time it would have been quite difficult to simply go forward and say "we must suspend that individual", we needed more information, hence why we arranged that call with Corinne and the regulatory team.
BERSHADSKI: You say in your statement that you felt that the advice that you gave as regards suspension was in line with ACAS guidance?
PACE: Yes.
BERSHADSKI: Which says that suspension should not be used automatically?
PACE: Yes.
BERSHADSKI: Was complying with ACAS employment guidance one of the matters that you were taking into account when advising in this call?
PACE: Yes, yes, of course I was acting in my capacity as an employment lawyer and so the purpose of the -- my -- my instruction was to provide employment law advice as part of that advice in relation to suspension, yes.
BERSHADSKI: Was the situation that was being described to you on the neonatal unit would it be fair to say that it was fairly extreme compared to the sort of employment matters you would ordinarily be called up about on the employment line?
PACE: Yes, absolutely. It was a very extreme situation. That said, I have previously, without disclosing details, provided advice in relation to another NHS Trust in relation to another very serious matter which doesn't have too much of a dissimilarity to this.
BERSHADSKI: I am not going to ask you about any details of any other matter --
PACE: No.
BERSHADSKI: -- of course. You also advised Dee Appleton-Cairns that the Trust
ought to investigate the issues before taking any further steps; is that right?
PACE: To investigate, to understand more about the situation which was unclear, that's right.
BERSHADSKI: Did it occur to you that there might be problems with the Trust itself investigating an allegation of deliberate harm by a nurse?
PACE: Yes, of course. But that was the reason why I needed to seek further advice from the regulatory team, from Corinne, in terms of how that investigation may look, and I am sure you will be coming on to, it was recommended that an external investigation was undertaken.
BERSHADSKI: Yes. Yes. Absolutely. So I think you tell us in your statement that after you finished this phone call with Dee Appleton-Cairns you first discussed the matter with another partner in the employment team?
PACE: Yes.
BERSHADSKI: You say that you explained your concerns about what you had been told to her?
PACE: Yes.
BERSHADSKI: What is it that you said to her, if you can recall?
PACE: I don't specifically recall the conversation. I do recall that as a junior associate at the time
I received regular supervision and this was clearly potentially quite a serious matter, the red flag had been raised and it was absolutely something that I would have discussed and did discuss with the partner. The concerns, I can't recall the specific nature of the conversation, but I expect it would have been along the lines of the focus doesn't seem to be on the potentially quite serious nature of the issues here. And that was on Kirsty's advice that I -- I needed to obtain further advice regulatory advice and she recommended me to Corinne.
BERSHADSKI: Do you recall whether you explained to Kirsty that there was a risk that there was essentially a murderer on the neonatal unit?
PACE: I would have explained everything that had been provided to me during the call.
BERSHADSKI: So that would have included the reference to Beverley Allitt?
PACE: I can't remember the conversation itself but, I -- it wouldn't surprise me if that's been mentioned, yes.
BERSHADSKI: Okay. So is it right that on the advice of Kirsty MacDonald, you then immediately contacted Corinne Slingo, who is the head of the regulatory team?
PACE: That's correct, yes.
BERSHADSKI: What did you say to Ms Slingo?
PACE: I again can't recall the exact detail of the conversation but it would have been to recollect the conversation that I had had with Dee Appleton-Cairns as is set out on the attendance note.
BERSHADSKI: So would it have probably included the fact that there was a concern at least by somebody on the neonatal unit that there was in effect a murderer on there?
PACE: It would have referred to everything that Dee had told me.
BERSHADSKI: Including the reference to Beverley Allitt?
PACE: I expect so. I can't recall the exact conversation but I expect so.
BERSHADSKI: Can you recall what Corinne Slingo's response was?
PACE: We agreed that we needed to arrange a call. We agreed that it was a matter for regulatory to be involved in. We agreed that it was an urgent matter for regulatory and that we needed to speak to the client to understand and obtain further information.
BERSHADSKI: You say at paragraph 37 of your statement that you recall Corinne telling you that she thought it was too early to get the police involved?
PACE: Yes, that is right.
BERSHADSKI: Is that what you think she told you in that initial conversation that you had with her?
PACE: I do recall that, yes.
BERSHADSKI: Is it right that she told you that calling the police may disrupt any internal investigation?
PACE: I do recall that, yes.
BERSHADSKI: Is it right that she told you that it might be appropriate to approach one of the Royal Colleges to undertake a review?
PACE: Yes and from recollection the conversation went along the lines of -- based on the very limited information we have at the moment it looks to me to be too early to call the police so we may have to call in the Royal College to do an external investigation but we will need to speak to the clients and obtain further information.
BERSHADSKI: Thank you. I am now going to move on to the next call that you have with the Trust and that's on 18 July. If we could please have up on the screen INQ0102205. Now, you receive a phone call from Sue Hodkinson at the Trust on the morning of 18 July and I think from this note it's at around 8.40 in the morning and she's seeking advice ahead of a management meeting that is due to start in 20 minutes' time, not the most positive
situation for a lawyer to be in. You summarise your understanding of the position. She says to her -- I think you explain to her that from the previous call you had with Dee Appleton-Cairns you understood that there had been a rise in the number of patient deaths on the unit and that a particular individual had been prevalent on the unit at all of the relevant times; is that right?
PACE: Yes, that is right, yes.
BERSHADSKI: Is it right that Sue Hodkinson explained to you that Letby had been on annual leave for some time until this call?
PACE: Yes, I think -- well, the note refers to her being on annual leave for about two weeks which would have taken her just before my initial call with Dee on 5 July.
BERSHADSKI: After she returned the Trust had considered placing her under clinical supervision?
PACE: Yes, that's right. I seem to understand that she was placed on clinical supervision when she returned to work from annual leave I think around about 14 July which was a Thursday.
BERSHADSKI: The Consultants had said that in fact they didn't want her working back on the ward?
PACE: That's now my understanding, although that
wasn't the case at the time, yes. I was told at the time that the focus of my question is: well, why would you place her on supervision on a Thursday and call me on a Monday, bearing in mind there is a weekend in between to now change your mind and put her on redeployment?
BERSHADSKI: Was it your understanding during this telephone call on the morning of the 18 July that the Trust was considering calling the police at that point?
PACE: Yes, yes. That's recorded in the -- in the note.
BERSHADSKI: You record the Trust is now considering calling the police?
PACE: That is recorded in the note which I would have made after the telephone conversation.
BERSHADSKI: Was it your understanding from this call that there appeared to be a significant body of staff on the neonatal unit saying "it's her" about Letby?
PACE: The -- the -- the picture is by this point slightly different to the 5 July. The 5 July call was quite a messy picture with lots of fingers being pointed to lots of people. And that picture, that fog, seems to be clearing a little bit by 18 July with more of a focus on that one individual.
BERSHADSKI: If that's right, then would it be fair to say that your index of concern that there may be a person deliberately causing harm on the unit would have risen?
PACE: Yes.
BERSHADSKI: You say in your statement at paragraph 45 that you then update Corinne Slingo immediately following this call; is that right?
PACE: Yes, it would have been my call straight after this, probably around about 9 o'clock.
BERSHADSKI: Presumably when you spoke to her you would have told her that your index of concern had now increased further, that there might be an individual causing deliberate harm on the neonatal unit; is that right?
PACE: I expect I would have recalled everything that was discussed during my call with Sue which had happened five or ten minutes earlier.
BERSHADSKI: Do you recall now -- that note can come down off the screen now, thank you. Do you recall now whether you were party to the second conversation that took place on 18 July?
PACE: No, I don't -- I don't recall that, whether I was a part of that call and I really have tried my best, it's obviously been some years. I -- I expect at the very least Corinne had a call with Sue I can't
recall whether I was part of that call or not but I was copied into a subsequent email following it.
BERSHADSKI: Yes. I am not going to ask that that email be put up on screen at this stage because it's going to come up later, I suspect, with another witness. But do you recall receiving the email which followed that second call at the time?
PACE: I received it, I absolutely clearly received that email, I was copied into it.
BERSHADSKI: In short, in summary, that was an email from Corinne Slingo which advised that at that stage there wasn't a need to formally alert the police?
PACE: Yes, and very detailed reasons for it based on our instructions at the time.
BERSHADSKI: Yes. Were you at all surprised by the advice contained within that email, that there wasn't a need formally to alert the police, given your concerns?
PACE: Would it be possible to see a copy of that email?
BERSHADSKI: Yes, it would, of course.
PACE: Thank you.
BERSHADSKI: If we can please put up on screen INQ0101942.
PACE: Thank you. So the email clearly sets out Corinne's reasoning at the time. They were our instructions at the time. Paragraph 1 specifically sets
out the -- her reasoning as to why -- it was her view at the time not to call the police. If we -- you know, if there's a way of summarising those six bullet points, it will be there is very little evidence at the moment to whilst there may be a -- a concern, an increase in concern in the unit from a hard evidential point of view, there is very little evidence to support those concerns.
BERSHADSKI: Yes, but it's -- I mean, it's for the police to gather evidence if there's a suspicion of a crime trial having been committed, isn't it?
PACE: Yes, it was Corinne's role and in her role as head of healthcare regulatory, that was her specialism as to whether or not there was sufficient -- that threshold had been crossed to call the police.
BERSHADSKI: Yes, and I think you agreed with me earlier that your understanding of safeguarding principles was that a safeguarding referral, which would include the police by definition, it only needs to be made if there is a concern that somebody poses a risk that it doesn't have any evidential threshold as such?
PACE: Again, that was Corinne's area of specialism.
BERSHADSKI: I'm just asking you about your own view and of course I will be putting questions to Ms Slingo later on today?
PACE: Sure.
BERSHADSKI: But I am just asking your view at the time that you received this email, given the two conversations, or possibly three, that you had had with people at the Trust and your concerns which you described as a red flag, as serious concerns, were you surprised by the advice that Ms Slingo was giving that there wasn't a need to contact the police?
PACE: No. I was a junior employment lawyer. Corinne was a senior partner in the firm, head of healthcare regulatory. If it was her view and her advice at the time that the police should not be called, then as an employment lawyer with not -- doesn't have a specialism in that area, it would have been unusual for me to question that advice, I would say.
BERSHADSKI: So you are you saying you effectively took no view one way or the other whether it was correct or not; you assumed it was correct because she was the person best placed to give that advice?
PACE: Yes, that is right, that is fair to say.
BERSHADSKI: I am just going to ask you -- thank you, that email can come down off the screen now -- were you told at any point that you advised the Trust, and I think you gave advice to the Trust up until January 2017?
PACE: Approximately once a month or so, yes.
BERSHADSKI: There or thereabouts. Were you told at any point by anybody that you spoke to, whether it was Sue Hodkinson or Dee Appleton-Cairns, or indeed anybody else, that the majority of deaths had occurred between midnight and 4 o'clock in the morning when Lucy Letby was on shift?
PACE: No. I was -- I was given very general instructions, that being very much in line with the initial call, that there had been an increase in deaths. I wasn't provided with details of the identity of the babies, the age of the babies, when the deaths had occurred, nor the Families.
BERSHADSKI: Presumably then you also weren't told that the deaths were unexpected and unexplained; is that right?
PACE: I was told there had been an increase above the usual rate for the unit.
BERSHADSKI: Not that they were unexpected or unexplained?
PACE: No, I wasn't provided with that information, no.
BERSHADSKI: Were you given any information about a Thematic Review that had been conducted by one of the Consultants who had raised concerns?
PACE: No, I wasn't provided that information. I was told that an external review had taken place 18 months previously.
BERSHADSKI: Were you told that the deaths had stopped once -- that they had stopped occurring at night once Lucy had been moved to day shifts?
PACE: No, I wasn't provided with that information either.
BERSHADSKI: Were you told that two babies had died within a day of each other --
PACE: No.
BERSHADSKI: -- on the day shift whilst Lucy Letby was present?
PACE: No, I was given very general instructions, I wasn't provided with specific details.
BERSHADSKI: Thank you. The next occasion I think on which you are contacted by the Trust is on 2 August and is it right that you are told at that point that the external review, which is the Royal College review, the RCPCH review, that it had been delayed until 1 and 2 September?
PACE: Yes, yes that's recorded on the attendance note, yes.
BERSHADSKI: That the team still felt that an employee was responsible for the deaths?
PACE: Yes, I seem to recall there was a reference to a feeling a gut feeling on the unit.
BERSHADSKI: Yes. Do you recall being told that the Trust
was following Corinne Slingo's advice that the Trust was now much more comfortable?
PACE: Yes, I understand that Corinne had had a telephone conversation involving the Chief Executive to give advice.
BERSHADSKI: What was your understanding of what it was that the Trust was now much more comfortable about following Corinne Slingo's advice?
PACE: I think it was the threshold in terms of whether or not to contact the police and ensure whether or not the Trust should contact the police at that point in time. I think it was -- a reference was made to I think it was the 18 July email advice, and that it was agreed there would be a very low threshold and if the evidential position became clearer and suggested that one individual was involved, then that threshold would be crossed but at that present moment in time there was very limited information.
BERSHADSKI: You were told I think that the neonatal unit was being kept under daily review to ensure patient safety?
PACE: Yes.
BERSHADSKI: Now, were you told whether there had been any more deaths or unexpected deteriorations since Letby's redeployment?
PACE: No, I wasn't. I was -- although it was my understanding from that that there hadn't been any further deaths.
BERSHADSKI: Now, obviously it's a good thing that there haven't been any deaths or unexpected deteriorations, but did you give any thought to what implications that might have for the possible link to Lucy Letby, the fact that there had not been any more deaths or unexpected deteriorations since her redeployment away from the unit?
PACE: Yes, yes, of course and one of the risks, one of the areas that was set out in Corinne's email advice was at that moment in time around 18 July the unit stopped taking particularly vulnerable babies, those under 32 weeks. So I think Corinne's advice refers to the potential on that basis that because the number of vulnerable patients, very vulnerable patients coming into the unit was going to reduce perhaps the death rate may -- may reduce at the same point, so that there was potentially that reason for explanation for that.
BERSHADSKI: Are you saying that you gave this matter thought at the time and that you reasoned as to why it might be that the death rate and unexpected deterioration rate had dropped and that you attributed it to the redesignation of the unit or are you now thinking back as to --
PACE: I would probably say I would be thinking back, but it was absolutely identified that that may be a correlation in Corinne's advice which I would have seen at the time.
BERSHADSKI: Now, I think you have told us already that you didn't know any details about the deaths that had taken place, for example the age, the gestation of the babies --
PACE: Yes.
BERSHADSKI: -- who had died. So would it be fair to say that you weren't in a position -- and obviously you have got no clinical experience yourself; is that right?
PACE: No, that's right.
BERSHADSKI: So were you in any position to come to a view one way or the other as to whether the redesignation of the unit in relation to the gestation of babies accepted whether that could or could not produce any explanation for the reduction in deaths and deteriorations?
PACE: No, no, absolutely not. But clearly that is as a matter of common sense, if -- if the unit is taking fewer very vulnerable patients who are from a layman's perspective will be at increased risk of death then the likelihood of there being a correlation is possible.
BERSHADSKI: So you were relying on your common sense in terms of -- of matters?
PACE: Yes, and that's me reviewing the evidence eight years later now, yes.
BERSHADSKI: Yes, okay. Now, on I think you give some more advice between 7 and 9 September --
PACE: Yes.
BERSHADSKI: -- in both a meeting and a telephone call with the Trust and you are told that Letby had been removed from the neonatal unit and placed in the Risk Management Team, the Risk and Patient Safety Team. Did you have any concerns about Letby who was suspected by some of deliberately harming babies being moved into a Risk and Patient Safety Team?
PACE: Yes. The advice from the very outset was she should be placed in a role, in an administrative role, that she would have no access to patient records and again that's -- sorry to keep referring to it -- set out in Corinne's email advice of 18 July and it was our understanding up until that point in time that that was the case. We were told that she had been placed in a -- in a clerical role.
BERSHADSKI: Yes. You are also told at this time that Letby's has raised a grievance; is that right?
PACE: Yes, that is right, yes.
BERSHADSKI: You advise responding to that grievance in accordance with the Trust's grievance policy?
PACE: Yes, that's correct.
BERSHADSKI: Now, were you aware of the Trust's grievance policy and how familiar were you with it?
PACE: Yes, I would have been familiar with the grievance policy.
BERSHADSKI: So you would have been familiar with the fact that the Trust isn't mandated to deal with somebody's grievance if there are other Trust policies which overall are more appropriate to be applied in the situation; is that fair?
PACE: I think it would be an unusual -- it would be a very -- it would be a commercial decision for the Trust to take not to acknowledge nor respond nor deal with a grievance once that has been raised, particularly in the context of what appeared to be an increasing risk of a constructive dismissal claim. A constructive dismissal claim is when there has been a breach of contract, whether that be an express breach of the express terms or a breach of the implied terms and an individual resigns as a consequence of that. There -- there did appear to be an increasing risk
that of a constructive dismissal claim and with that in mind, the ACAS guidance is that a failure to deal with a grievance can uplift compensation by 25%. It's very, very usual to deal with a grievance once it's received and that's the line that we went down and again with -- with the agreement of the partners in the employment team.
BERSHADSKI: I think you say that a number of points you advised the Trust that they needed to deal with the Consultants' concerns that they had raised --
PACE: Yes.
BERSHADSKI: -- under the Trust's Speak Out Safely policy?
PACE: Yes.
BERSHADSKI: I think in some of your documents you refer to the Freedom to Speak Up policy; in fact, at the time, it was the Speak Out Safely policy?
PACE: Yes, yes.
BERSHADSKI: It underwent a rebranding later on down the line. Now, as far as you are aware, had the Trust followed the Speak Out Safely policy?
PACE: No. The -- I think the -- my recollection of the reasons for that was because the -- the concerns hadn't been formalised by the Consultants. At that point in time the concerns had been raised on, as I understood now, a relatively informal ad hoc basis for a period of time. Now, clearly if we had been I think my advice at the time, if I had been aware of that, would have been to encourage those concerns to be formalised so they could be investigated. That clearly didn't happen before my involvement. But we -- I did advise the Trust that that, that is something that should happen so that an investigation could be undertaken to consider those concerns and get more detail.
BERSHADSKI: So did you consider that there was some requirement of formality in order for a concern to trigger the Speak Out Safely process?
PACE: No. The -- but what is needed for investigation is some clarity in relation to the issues and allegations to be investigated and, really, if that advice or, sorry, those concerns are coming in in piecemeal fashion, that can be quite difficult to form Terms of Reference for that investigation.
BERSHADSKI: Is it right that all that is required -- all that was required under the Trust's Speak Out Safely policy and similar policies, because I think these are fairly standard across the healthcare sector; is that right?
PACE: Yes, yes.
BERSHADSKI: All that is required is for somebody to raise a concern --
PACE: Yes.
BERSHADSKI: -- with an appropriate individual under the policy?
PACE: Absolutely.
BERSHADSKI: There isn't any requirement within the policy of it being in writing --
PACE: No.
BERSHADSKI: -- or any particular other format?
PACE: No.
BERSHADSKI: So isn't it correct that what ought to have -- well, isn't it firstly correct simply that a Consultant or a number of Consultants had raised their concerns with the Executive Team?
PACE: Yes, and they had been raised for 12 months before my instruction.
BERSHADSKI: They had been. Now, that should have been sufficient to trigger taking those concerns seriously under the Speak Out Safely policy in and of itself, shouldn't it?
PACE: Absolutely and if I had been instructed 12 months previously that I expectation would be my investigation that they should be investigated pursuant
to that policy.
BERSHADSKI: As far as you are aware, that wasn't done?
PACE: That's correct, yes.
BERSHADSKI: Now, I want to turn another matter that's discussed with you between 7 and 9 September. Dee Appleton-Cairns and Sue Hodkinson I think expressed to you that they have concerns about the behaviour of some of the Consultants and they want to consider whether they can engineer the removal of that Consultant from the unit; is that right?
PACE: That's right.
BERSHADSKI: Did it concern you that Executives at the Trust were approaching you for advice about how to engineer the removal of somebody who appeared to be raising patient safety concerns?
PACE: Very much. Very much from two angles, at the very least, from a patient safety angle that concerns about patient safety clearly needs to be investigated, that is the priority and that was first and foremost in my mind. As an employment lawyer, I was also concerned by the -- the possibility that there is some sort of restructure or engineering should happen on the grounds of whistleblowing legislation. The concerns that had been raised by the Consultants no doubt would amount to
Protected Disclosures under the Protected Disclosure legislation and any detriment or dismissal as a consequence would have resulted no doubt in a successful claim for the tribunal. So both from a priority of patient safety perspective, yes it caused me concerns and as an employment lawyer, yes, it caused me concerns.
BERSHADSKI: You give some further advice on or around 26 October 2016 and you tell us in your witness statement at paragraph 100, that during that conversation Sue Hodkinson tells you that an external review had by then been completed and that there is no suggestion within the external review that Lucy Letby was involved. Can you just tell us, please, what it is that you recall Sue Hodkinson telling you about the conclusions of the RCPCH review?
PACE: Yes, it's -- it's as set out in the -- in the witness statement and I think there's an attendance note as well, if I recall, of the 26th.
BERSHADSKI: So you don't have any independent recollection now at this stage of what it is that was said?
PACE: I don't -- I don't, unfortunately. But the attendance note would have been made immediately after the telephone call.
BERSHADSKI: Is it right that you didn't personally see any of the reports that had been conducted into the neonatal unit at any point.
PACE: Yes, that, that's correct. There was however -- I had previously asked to see a copy of the report. That wasn't forthcoming and I wasn't provided with copies of the report or reports. I would say however that I had worked with Sue since really starting at DACB in 2011, she was a senior member of the Executive Team, she was a fellow of the CIPD, and she had a number of -- significant number of years' experience and I felt able and no reason to doubt what she was telling me specifically that there was nothing in that external review that suggested one individual -- individual's involvement.
BERSHADSKI: You were told, I think, weren't you, that the Consultants, after they had received the external report, that they were going around saying that it had basically vindicated the medical team?
PACE: Yes.
BERSHADSKI: Is that right?
PACE: That's right, yes.
BERSHADSKI: So is it fair to say that you would have understood at the time that the clinicians had read the report very differently from how Sue Hodkinson had read
it?
PACE: I think there is a slightly different angle, the information that I was being provided by Sue was that there was a systemic failure on the NNU and a management failure of the NNU, I think there was reference to short staffing of the NNU being causes. The instructions were that there was no one individual responsible for that and from what I was being told about what the Consultants were saying they were saying we are not at fault. So I think there is a different perhaps perspective of what the report was saying at the time by two different parties.
BERSHADSKI: But did it concern you at all that the Consultants were deriving a very different message from the report from Sue --
PACE: The Consultants I would say were looking at it from their own personal perspective and it would appear that there was no evidence to point the finger of blame at the individual Consultants. It was more of a wider systemic failing, more general systemic failing of the NNU.
BERSHADSKI: Do you recall whether Sue Hodkinson or anybody else at the Trust, whether they positively said to you that the report had or that the reports had cleared
Letby?
PACE: They didn't use the term "cleared", no. But the reference was that there was nothing at all, sorry, I don't have it in front of me but there was nothing at all to implicate Letby or something along those lines or one individual. So the instructions were quite clear. This was a general systemic failing of the NNU, management of the NNU and there was no evidence to implicate one individual, so that was the closest you could say it got to that.
LADY JUSTICE THIRLWALL: It is paragraph 101, isn't it?
PACE: Thank you, my Lady.
MR BERSHADSKI: I think the last occasions on which you advised the Trust are 25 and 26 January 2017. If I could just ask for the 25 January note to be put up, that is INQ0102280. If we look just towards the end of that large paragraph in the middle of the page, this is a telephone call with Sue Hodkinson: "The Trust should explain that it was prepared to listen to any concerns raised in respect of patient safety and Sue agreed that she would be able to support this by the fact that the three investigations have been raised and considered and each have concluded that LL
has played no part."
PACE: Yes.
BERSHADSKI: Is that likely to be an accurate record of what you were told by Sue Hodkinson?
PACE: Yes, I expect so, these -- these attendance notes were dictated immediately after the call.
BERSHADSKI: I am just going to ask you now reflecting back on the situation that you were faced with in 2016 to early 2017, with the information that you were being given at the time, do you think that applying the safeguarding principles that you were familiar with that you should have advised Sue Hodkinson or Dee Appleton-Cairns that it would be appropriate if there was any concern by anybody that somebody posed a risk to children and babies that a referral ought to be made under the safeguarding principles?
PACE: As -- as I have previously said, it was certainly a red flag and in my capacity as an employment lawyer a red flag is something to the extent that I needed to seek specialist regulatory advice as to whether that threshold had been crossed and that's what I did immediately. I contacted the head of the firm's healthcare regulatory team who had specialist knowledge in that area. I was a junior associate at the time and Corinne was a senior partner in the firm. It would have been quite unusual for me as a junior associate to have disputed her advice.
MR BERSHADSKI: My Lady, those are my questions for this witness. I understand that there are no longer any questions from any other parties; is that right?
LADY JUSTICE THIRLWALL: Very good and I have no questions, so thank you very much indeed for coming, Mr Pace, and giving your evidence, you are free to go now.
PACE: Thank you, my Lady.
MR BERSHADSKI: My Lady the next witness is Ms Slingo. I am entirely in your hands as to whether you wish to move straight into the next witness.
LADY JUSTICE THIRLWALL: Let us do that, yes, if she's here.
MR BERSHADSKI: I think the indication is that there needs to be a short five-minute break in order to get the next witness in place.
LADY JUSTICE THIRLWALL: Do we need five minutes, is she coming a long way? We will just wait unless anyone wants a break? No. We will just wait.
(Pause)
LADY JUSTICE THIRLWALL: There is no rush, do sit down and catch your breath and you will be sworn in.
MS CORINNE SLINGO (sworn)
LADY JUSTICE THIRLWALL: Do sit down, Ms Slingo.
Questions by MR BERSHADSKI
MR BERSHADSKI: Could you confirm your name for the Inquiry, please?
SLINGO: Yes, Corinne Dawn Slingo.
BERSHADSKI: Is it right that you have made a statement dated 13 June 2024?
SLINGO: That's correct.
BERSHADSKI: Is that statement true and accurate to the best of your knowledge and belief?
SLINGO: Yes, it is.
BERSHADSKI: If we could start with some background, please. You are a partner currently at DAC Beachcroft; is that right?
SLINGO: That's correct, yes.
BERSHADSKI: You were the Head of Healthcare Regulatory until May 2021, in which capacity you led a team of healthcare regulatory lawyers across six locations?
SLINGO: That's correct, yes.
BERSHADSKI: Now, I am going to be asking you questions about advice that you gave in 2016/2017. At that point, is it right that you had been practising as a solicitor for almost 20 years?
SLINGO: Yes, that's correct.
BERSHADSKI: You have experience, do you, of police investigations in healthcare, is that right?
SLINGO: Yes.
BERSHADSKI: And in particular, is it right that you have some experience of a police investigation relating to Stepping Hill?
SLINGO: So I've referenced Stepping Hill as one of the matters our firm has dealt with. I wasn't personally advising on that matter, but I was aware and, and supportive of a colleague who was.
BERSHADSKI: And were you involved with giving any advice in relation to the police investigation of Maidstone and Tunbridge Wells NHS Trusts?
SLINGO: So, yes, I was again supportive of a partner who led that, Tracey Longfield. But I was involved with going to present to the Trust's board following the charges that were brought against that organisation.
BERSHADSKI: Did that relate to the David Fuller issues or was it a different police investigation?
SLINGO: So yes, it was -- it was the corporate manslaughter prosecution involving the death of a patient involved in obstetric care.
BERSHADSKI: Now, is it right that as part of your role you will have had an understanding of a Trust's safeguarding responsibilities?
SLINGO: That's correct.
BERSHADSKI: I think you say that you have advised on high-profile public Inquiries including the Savile Inquiry insofar as it touched on safeguarding concerns within NHS bodies to which Jimmy Savile was linked?
SLINGO: So I was involved when the Inquiry was established and it had a separate arm that looked at the NHS in particular. I was instructed by one NHS Trust to provide information and statements to the Inquiry and to that extent that was my involvement.
BERSHADSKI: And they related to safeguarding issues, is that right?
SLINGO: To the best of my recollection, they involved providing statements as to when Savile was involved with patients and/or staff on that particular Trust site and what measures were taken in relation to him. "Safeguarding" is a rather global term for that particular Inquiry and that line of evidence.
BERSHADSKI: So what safeguarding measures were or were not taken in response to him?
SLINGO: I don't know if it was in response to him particularly, but it was around the presence for example of people who were on site doing voluntary or good works as was perceived at the time. So, yes.
BERSHADSKI: You say at paragraph 8 of your statement that you helped develop and train boards in understanding their obligations. Would that be boards of NHS Trusts?
SLINGO: Both NHS Trusts and independent sector health providers and it covers a range of topics often, for example, the Care Quality Commission and board assurance.
BERSHADSKI: And would that include their safeguarding obligations?
SLINGO: So not specifically, no. I haven't personally delivered to a board training on safeguarding to my recollection over 27 years. It would be included as a general subject but not as a specific one.
BERSHADSKI: When you say included as a general subject, what would be said typically in training as regards safeguarding to a board?
SLINGO: I actually can't recall now specifically over that period. I haven't delivered anything recently that includes safeguarding.
BERSHADSKI: You mention in one of your emails to the Trust that a Trust has Regulation 17 governance obligations and that's a statutory obligation in relation to good governance --
SLINGO: It is.
BERSHADSKI: -- is that right? And is it right also that a Trust has an obligation under Regulation 13 to protect
service users from abuse and improper treatment?
SLINGO: That's correct.
BERSHADSKI: And is that something that you would have been aware of at the time that you provided advice to the Trust in 2016 and 2017?
SLINGO: I would have been aware of it. Those particular regulations were generated around 2014 and relate to the creation of the Care Quality Commission at the time, so they were relatively new. But as a general concept of course safeguarding has run through the health service throughout its existence.
BERSHADSKI: Now, I am going to ask you a couple of the same questions that I put to Mr Pace about safeguarding principles that you may have, may have heard. Is it correct that one of the safeguarding principles is that a safeguarding referral needs to be made if there is a risk that someone has harmed or may harm a child?
SLINGO: Yes.
BERSHADSKI: And there is no evidential threshold that needs to be met before a safeguarding referral is made, is that correct?
SLINGO: That's correct.
BERSHADSKI: All that's needed is a concern of a risk?
SLINGO: It -- it is. I think the reality for
healthcare professionals on the ground is that they collate a number of different pieces of information to work out whether they have sufficient to make that referral because although it sounds a very neutral act and it's a very important act, there are often concerns around making that the right decision. So, for example, if there are concerns around a parent attending with a child in an emergency department, they -- the healthcare professionals work hard to make sure that they aren't overreacting to what they are seeing but are making a sensible reasoned choice around referral. Given the impact it will have inevitably on that family dynamic, they just try and make the right decisions.
BERSHADSKI: And is it right that safeguarding responsibilities apply just as much to members of staff who may pose a risk of harm as they would do to family members of a child?
SLINGO: Yes, that's right.
BERSHADSKI: Now obviously, if the subject of a concern is a member of staff, then there isn't that risk of interrupting a family dynamic --
SLINGO: (Nods)
BERSHADSKI: -- thank you just described. Would you agree that patient safety is always
paramount when making a decision as to whether to make a safeguarding referral and that, for example, the feelings of a member of staff or the impact on them of making a referral is not something that is weighed in the balance: it is patient safety that is paramount?
SLINGO: I absolutely agree with that in, in general concept. Just note that I am not the person making those decisions. Others have to do that.
BERSHADSKI: Yes. And is it another principle of safeguarding that safeguarding is everybody's responsibility?
SLINGO: Yes.
BERSHADSKI: And does that mean that an individual cannot assume that somebody else has complied with their safeguarding responsibilities and on that basis not take safeguarding action?
SLINGO: In the context of how healthcare operations work internally, yes, I would agree with that.
BERSHADSKI: Thank you. I am just going to ask you some questions now, if I may, about the first occasion on which you would have heard about any of the issues on the neonatal unit at the Countess of Chester Hospital. Is it right that you were contacted by Ian Pace, a colleague within your firm, working in the Employment and Pensions Department on 5 July 2016?
SLINGO: I believe so, yes.
BERSHADSKI: Now, Ian Pace's recollection is that he was very concerned and had identified a red flag after a conversation he had had earlier that day with Dee Appleton-Cairns at the Trust. Do you recall a conversation in which he expressed to you that he had real concerns and a red flag as a result of that conversation?
SLINGO: So I have no recollection now of the conversation, but I have no reason to doubt Mr Pace's account of that. I recall that I was contacted and asked, as I am on many occasions, by my employment colleagues to contribute to some advice being given to a health client and that the reason for some additional separate advice to that being employment was that there was a concern from a patient safety perspective. In fairness, I don't, in 2024, recall the detail of that conversation with Mr Pace.
BERSHADSKI: Well, do you recall having the conversation with him at all?
SLINGO: I think from the email searches carried out for this process, I would be very comfortable that we had that conversation, yes.
BERSHADSKI: But do you recall now, as you sit here giving evidence, do you recall having a conversation with
Ian Pace on 5 July or not?
SLINGO: I recall I will have had a conversation with him.
BERSHADSKI: Yes. Now, Ian Pace has told the Inquiry that during that conversation, he will have communicated to you that there was a concern that there was a Beverley Allitt-type situation on the neonatal unit at the Countess of Chester Hospital. Presumably you are not able now to recall one way or the other whether he said that to you or not?
SLINGO: No. But I have -- I have seen a file note that Ian Pace created from his conversation on 5 July with a member of the Trust staff and I have seen reference within that file note to him being told that various members of staff were pointing the fingers at each other and that one Consultant had suggested that a nurse was referred to as Beverley Allitt. But I see from the rest of that file note that the member of the Trust was very clear with Ian that she didn't believe that to be a situation that they faced and that there was, I think she used the words no malicious issue. So I will I believe have seen that file note. But, I can't now recall Ian specifically referencing Beverley Allitt in a call with me and, and I can partly, although I can't remember the detail of his call, I can
partly add I guess some flavour to that, which is that for a healthcare lawyer reference to Beverley Allitt would be very significant and would, would put matters in a more concerning tone than what we are going to discuss shortly.
BERSHADSKI: Well, can you just expand on that? What is it that you would have understood a reference to Beverley Allitt at the time to mean?
SLINGO: So I think for any healthcare lawyer at that time, one would regard a reference to Beverley Allitt as suggesting that there was a deliberate harm element to the patient safety concern --
BERSHADSKI: Yes.
SLINGO: -- which places it in a very, very different category to the vast majority of calls I have of that nature.
BERSHADSKI: Yes, an extremely serious category?
SLINGO: Yes.
BERSHADSKI: Which demands immediate action?
SLINGO: It demands a conversation to find out what's going on, yes.
BERSHADSKI: Well, would you agree that it demands more than just a conversation to find out what's going on if there is a concern by somebody who appears on their face to be a professional person that there is a
Beverley Allitt situation that demands immediate action to ensure that there isn't such a situation continuing any longer?
SLINGO: Sorry. The conversation and the discussion I made reference to is as a legal adviser.
BERSHADSKI: Yes.
SLINGO: Simply referencing that, doesn't give me enough information to advise, it doesn't tell me anything else. So the nature of the discussion or conversation was I would want to know more about what was going on. I wasn't being asked on 5 July to immediately give a view as to what should or shouldn't happen next. It was I was being asked to have a conversation.
BERSHADSKI: Yes. Well, Ian Pace's recollection is that on 5 July when he speaks to you, he tells you that there is a concern about a specific individual that reference has been made to Beverley Allitt, and that your response in that conversation with him is that: the police don't need to be called in straight away, that it's too early and that further investigation needs to be done by way of a Royal College review. Do you recall expressing those views to Ian Pace in that initial conversation?
SLINGO: I don't recall that because I don't recall the conversation. However, I don't think I would have enough information to have given that thought on 5 July. I would -- I understood I was being asked to have a conversation with the Trust to find out more. So it would be unusual I think for me to have given that view there and then. It's not unusual for me to talk about things like Royal College reviews because those happen and those are part of my day-to-day activity advising clients.
BERSHADSKI: Would you agree that it's very rare for an allegation to be made by a Consultant that there is a Beverley Allitt on the unit? That's not an allegation that you come across frequently in your role as a healthcare lawyer?
SLINGO: I think, if, if I -- you're right. That, that is rare, thankfully very rare. But as I said earlier if my reference point was the file note, which is the written version of what you are describing, that wasn't, that wasn't written in that way. It was that a Consultant had made that reference and that the client was telling us that that wasn't at all what was going on. So I think it's just about the balance of that information. Yes, it would be very serious if that were accurate but that wasn't the way in which it was portrayed.
BERSHADSKI: Well, Ms Slingo, I was just asking you about the content of a conversation that you had with Ian Pace on 5 July. Presumably you hadn't reviewed the file note that Ian Pace had made of that conversation that he had had by the time that you spoke with him?
SLINGO: I don't know when I reviewed that and when I had access to that. I may not have done, but I -- I clearly saw it at some point before I had the call with the Trust --
BERSHADSKI: Yes.
SLINGO: -- a couple of weeks later.
BERSHADSKI: I mean, Ian Pace's evidence is that he called you immediately after he had the conversation with Dee Appleton-Cairns. So would it be fair to say that you are highly unlikely to have seen a file note or have read a file note that he had made if you'd had an immediate conversation?
LADY JUSTICE THIRLWALL: I am sorry to interrupt you, Mr Bershadski. I think he said he called the partner first, Kirsty, immediately after the call.
SLINGO: I'm so sorry, my Lady, I can't hear.
MR BERSHADSKI: Sorry, my Lady.
SLINGO: I can't hear.
LADY JUSTICE THIRLWALL: I'm sorry, I will move my microphones because I usually look that way. I thought, and I may have misunderstood this, but I thought Mr Pace first of all discussed it with the partner who supervised him.
MR BERSHADSKI: Yes.
LADY JUSTICE THIRLWALL: And she recommended that he should call Ms Slingo and then he said: "I would have told her everything I had heard. It wouldn't surprise me if I referred to Beverley Allitt" And he said that he couldn't recall the detail. Agreed to arrange... And then your response was: "Agreed to arrange a call with the clients to understand and obtain further information." So it sounds like it was a two-stage process.
MR BERSHADSKI: Yes. Yes, my Lady, I think the evidence was of initially a conversation with Kirsty MacDonald.
LADY JUSTICE THIRLWALL: Yes.
MR BERSHADSKI: And then following that conversation --
LADY JUSTICE THIRLWALL: Yes.
MR BERSHADSKI: -- then immediate contact with Ms Slingo. So there does appear to have been, the evidence was of immediate contact following --
LADY JUSTICE THIRLWALL: Yes, after the first conversation.
MR BERSHADSKI: After the first conversation with Kirsty MacDonald.
LADY JUSTICE THIRLWALL: Yes.
MR BERSHADSKI: Thank you. My Lady, I see the time. I wonder if now would be a convenient moment to take the lunchtime adjournment.
LADY JUSTICE THIRLWALL: Yes, certainly. How much longer do you think you will be, Mr Bershadski? That's only to determine the length of the lunch break.
MR BERSHADSKI: I would hope to be within 40 minutes with this witness.
LADY JUSTICE THIRLWALL: Very well. Are there any other questions? Perhaps that's not known yet, I suppose. There might be. There might be. That's fine.
MR BERSHADSKI: It depends.
LADY JUSTICE THIRLWALL: Very good. We will take an hour, so we will start again at 2 o'clock.
(12.59 pm)
(The luncheon adjournment)
(2.00 pm)
LADY JUSTICE THIRLWALL: Mr Bershadski.
MR BERSHADSKI: Ms Slingo, we were just talking about the conversation you had had with Ian Pace on 5 July 2016 after his call. Is it right that you then don't have any further involvement with advising the Trust on this issue between 5 July and 18 July?
SLINGO: That's correct, yes, I think a call was to be arranged and that was then arranged I think on the 18th.
BERSHADSKI: Is it right that prior to speaking directly to anybody at the Trust on the 18 July, you first again received a phone call from Ian Pace updating you on the call he had had that morning on the 18th?
SLINGO: So I don't recall that, which is why it's not in my statement.
BERSHADSKI: His evidence to the Inquiry this morning was that he thinks he would have updated you in full on the matters he discussed with Sue Hodkinson on the morning of the 18th, including the fact that by the 18th, the focus seemed to have shifted much more on to the one individual rather than everybody else. Presumably since you can't recall the details of that conversation with him, you can't say whether that's correct or not one way or the other?
SLINGO: I think it's, it's fair to say that eight years on I am very reliant upon what was written down and what I wrote, both at the time and in my emails around that call. And I am really sorry, I -- I don't recall what he would have told me.
BERSHADSKI: Of course and that conversation with Ian Pace
wasn't documented anywhere?
SLINGO: Not as far as I am aware, no.
BERSHADSKI: So the first time that you speak directly with anybody at the Trust then is on the afternoon of 18 July?
SLINGO: It's around 5 pm, yes.
BERSHADSKI: Around 5 pm. You had mentioned at the start of your evidence that although -- that it's other members of your firm who had previously been involved with advising on police investigations and that you weren't directly involved with those matters, albeit that you had some knowledge of them, simply via the fact that it was your colleagues at your firm who were dealing with them, I think that was the import of your evidence; is that fair?
SLINGO: Yes, I mean, my role was very much around clinical incidents, Trusts and other providers dealing with very difficult challenging situations and the like and of the mass of advice over those years, a small percentage translating to potential criminal matters and of that very, very small amount I think in the country, healthcare lawyers get involved in what we now find out to be a potential murder situation vanishingly rarely.
BERSHADSKI: Of course. So would this have been the first occasion that you were called upon yourself to advise on
whether or not the police ought to be contacted in a situation where somebody had made an allegation of deliberate harm by a member of staff?
SLINGO: So at this point I had been advising for 20 years, I couldn't tell you the detail of every advice or indeed very much of it. I would also say the call was not about somebody alleging deliberate harm, the call was about some anomalies with some mortality data and a Trust trying to understand what that was about. So albeit we see through a lens now which is wholly different, that wasn't the essence of the discussion that we were having. It was part of it, but it wasn't, and I think you will see that from my notes, the idea of deliberate harm wasn't the central focus and I -- I don't say that coming to this Inquiry today to defend anything about my position; I am here to help. But it's the -- the context is really important --
BERSHADSKI: Yes.
SLINGO: -- for that -- for that 42-minute call.
BERSHADSKI: So I think you just said that although the focus wasn't on possible deliberate harm, it was a part of it?
SLINGO: So referral to the police was a part of it.
BERSHADSKI: Yes.
SLINGO: You will appreciate over the years and
everything that's happened since I have reflected very heavily on was -- was it about deliberate harm, that conversation? And I have -- I have struggled to recall that it was -- that was the tone. I don't think it was the tone. Obviously I had read Ian Pace's file note of 5 July, but nothing else. So the conversation that was had was very -- and I think that sort of maps through the notes that were taken -- it was very much we have had this data issue, we are taking the following steps, there's some concern about whether an individual is part of that. But an individual being part of some unusual clinical outcomes in my world doesn't take you straight to murder. It takes you to the far more common place that I encounter professionally which is about competence and clinical competence and is there, is there a theme, is there someone who is so bad at their job that these issues are developing and apologies for the very lengthy answer, but it's, the context going into that conversation is very much around that and that was the nature of the conversation. So I will have had calls with clients about does there need to be police involvement over my previous years of advising. But that would be at the level of routinely, you know, gross negligence manslaughter, corporate manslaughter issues rather than is somebody deliberately killing neonatal babies. That's not something I would have encountered at that point, no.
BERSHADSKI: Because obviously the whole context of this conversation was about possible police referral?
SLINGO: Yes.
BERSHADSKI: That was -- is it fair to say that that was -- was that your understanding of the primary issue on which you were being asked to advise on 18 July, whether there ought to be referral at that point to the police or not?
SLINGO: It was certainly part of the conversation. I think you will see from, from the advice email and the -- the notes taken at the time, it was a broader, it was a funnel effect. It was a broader conversation that -- that included within it matters of engagement of other stakeholders and that would include the police.
BERSHADSKI: You would have been aware by that point of this allegation that somebody had likened the situation to the Beverley Allitt situation because that was included within Ian Pace's file note of 5 July; is that right?
SLINGO: So I -- I yes, I think -- again I don't, eight years on, remember reading the file note but I am -- I am clear from us checking our time recording systems
that I looked at something briefly before the call.
BERSHADSKI: Yes.
SLINGO: And therefore I can only assume as that was all that existed that I will have seen Ian's file note and that's where there is reference to, as I said earlier, staff blaming each other, pointing fingers at each other, a Consultant -- I think it even says calling an individual "Beverley Allitt" rather than a Beverley Allitt situation. But -- but that was then discounted by the person talking to Ian. So it was a -- it wasn't -- it's very easy to focus now on that being really, really important and I totally understand it is in hindsight. At the time that wasn't the only thing being looked at --
BERSHADSKI: Yes.
SLINGO: -- and the only piece of information we had been given.
BERSHADSKI: If we go to your email that you wrote --
SLINGO: Yes.
BERSHADSKI: -- very shortly I think after the call, because I think you said that the call was at 5 o'clock in the afternoon, from your recollection. Your email is at 5.15 that afternoon --
SLINGO: It's 6.15. So 5 o'clock telephone call,
42-minute call then I wrote my email and sent it. So I sent the email at 6.15, I must have been drafting it immediately following the call.
BERSHADSKI: We will pull up the email, it's INQ0101942. I think certainly in this version of the email, it appears that it's sent at 17.15?
SLINGO: Okay.
BERSHADSKI: So is it possible then that your conversation was actually earlier in the afternoon?
SLINGO: I think the timing is very odd then because I had thought it was a 5 o'clock call and that seems to be what the emails suggest that lead to the setting of the time.
BERSHADSKI: Yes.
SLINGO: So I am not quite sure why that time doesn't correlate there but my understanding was my email was around 18.15; either way, it was within an hour of the call, an hour and a quarter.
BERSHADSKI: You begin saying that this is a really tricky issue for the Countess. What was it that was the -- what was the really tricky issue?
SLINGO: The tricky issue was that they had some mortality data that appeared to be of concern or had created an outlier situation and that they needed to understand the basis for that and explore what was going
on.
BERSHADSKI: Was the really tricky issue the issue of whether to call the police or not because that appears to then be the focus of your email given that your second sentence is to summarise a few key elements of our conversation particularly re the police?
SLINGO: I think -- I think it's difficult for me to now know what I meant by that, but I think the whole issue appeared to be very tricky. "Tricky" is a very informal word for which I apologise now, but I think I was summarising the -- the -- the way that conversation had gone, that there seemed to be a lot of different things that needed to be looked at.
BERSHADSKI: Your numbered list begins with a set of bullet points where you set out elements of concern at that point. The only -- your first one, the only current evidence of any clinical concern is the potentially circumstantial fact that one particular nurse was on shift. The second one is there are also deaths/deteriorations when she's not on shift. No incidents have been linked to her practice is the third one. Do you think this would have been a complete list of the information you were given by the Trust during your call about the reasons for a concern?
SLINGO: I think to the best to the best of my recollection, yes. I mean the situation that I was faced with was -- was speaking to an individual I had never advised before, an organisation I had never advised before about a situation that they appeared during the call to be at the start of in terms of the things they knew or certainly the things they told me. It tends to be my practice particularly where I know the individuals receiving of my advice better, sort of less well, so if I -- if I talk to them on a weekly basis I will understand what they understand I've said, but if I'm advising someone who I simply don't know and -- and don't really have any other information than in that call then it would be my practice to try and just capture the essence of what I have been told as the basis for the advice that I am giving. And for all the reasons you will understand, since everything that has now happened I am very pleased that I did at least do that so that I could look back and understand why I advised them the way I advised at the time. So to the best of my knowledge those bullet points are the sort of at the very least the headlines of what was important information given to me but I think I would be confident I would have included
anything else that was important in that analysis in that list.
BERSHADSKI: There are a number of matters that aren't included in that list of which we are now aware, the Inquiry is now aware, constituted reasons for concern on the part of the Consultants and I just want to ask you whether you recall them being mentioned to you. So firstly is that the majority of the deaths had occurred between midnight and 4 am when Letby was on shift, is that something that to the best of your recollection you were aware of?
SLINGO: Absolutely not.
BERSHADSKI: The fact that the deaths were unexpected and unexplained?
SLINGO: No, I -- I didn't know that and I think I have made that clear in my statement. Whether the second call that we will no doubt come on to goes any further with that, because I did expressly explore whether there had been deaths reported to the Coroner. But no, I wasn't otherwise aware of that beyond what I have put in my statement.
BERSHADSKI: Were you aware of a Thematic Review that had been undertaken by Dr Brearey?
SLINGO: By who, sorry?
BERSHADSKI: By Dr Brearey, one of the Consultants with
a concern about --
SLINGO: I had -- and I checked my handwritten notes I had no names of any individuals involved, no idea who anybody was that was looking at this. So, no, I had no -- no information on that.
BERSHADSKI: Were you aware that at some point prior to this conversation Lucy Letby had been switched to day shifts away from night shifts?
SLINGO: No, I -- I reference the only thing that I knew which is that I think it's -- I think it's paragraph 2, I was aware that an individual had been taken into a non-clinical role at that point and I was simply confirming that from a patient safety perspective that had to be absolutely right since nobody knew what was going on. And that also I made the point there that when an individual is under some sort of investigation or suspicion or there's an incident being investigated, it can create its own patient safety risk if the individual under suspicion or being investigated in some way continues with their clinical practice which is why people are suspended, excluded and moved to other roles throughout healthcare when incidents happen.
BERSHADSKI: Yes.
SLINGO: And I mean incidents in the clinical incident
setting that I would normally be working in rather than the extraordinary situation in this case.
BERSHADSKI: Well, if we go to that paragraph, that number 2, from a patient safety perspective you write: "The decision to move the individual to a non-clinical role is absolutely right irrespective of the right or wrongs of the suspicions cast upon her involvement in the heightened mortality issue." If we just take that sentence. What did you mean by: "... the suspicions cast upon her involvement in heightened mortality issue"?
SLINGO: Well, there had clearly been some communication that an individual was being considered as involved. The involvement there, and again I have -- I have, you know, looked back with as objective a heart as I can at what's gone on, that would be the same form of words whether I was thinking about someone with a clinical competence issue as anything more sinister than that. I am sure it doesn't help at this stage, and again I would apologise to the families for anything -- that anything I might say might cause distress, but the entire tone of this call wasn't that there is a deliberate harm situation. The entire tone was very much there's this data anomaly they are trying to work through and they are trying to take steps to investigate in a number of avenues.
BERSHADSKI: From your bullet point list at the top, we can see that you have recorded that no incidents have been linked to her practice and no previous concerns or whistleblowing has arisen in respect of the individual or the unit. That would suggest that it doesn't appear to be a clinical competence issue on the part of the nurse, wouldn't it?
SLINGO: I don't think that suggests that at all. Those are objective markers that I would look for in the event that there was concern about individual practice in any direction. They are just part of the piecing together of a factual jigsaw to try and understand what's going on upon which to then advise and just I guess again apologies to not wait for the question but this is the first conversation and in any other setting I would expect this to be a conversation that is the start of many conversations. As it turned out this -- this was a conversation in complete isolation for another eight months. So these are things that are advising on the best of one's ability at the time based on what information one has. It wouldn't normally be the end of the story.
BERSHADSKI: You say in your paragraph 2 that: "It's correct that she's been moved off from clinical duties. It will be important to ensure she would not have access to any medical records for the unit in case there is any risk of her accessing them to investigate matters herself or (worst case) to tamper with them." Again, is it fair to say that that is more consistent with a -- or this is potentially somebody who's been doing something deliberately, reading of the situation?
SLINGO: Again, I can -- I can totally see why now looking backwards that might be right but sadly at the time I would have experienced clinical incident cases where those involved have gone to access records and sadly we have also seen matters where individuals involved have changed records and that's not whilst the act of changing them is a criminal matter, the incident that they are trying to deal with isn't necessarily a criminal matter, it's just they are going to obviously be in trouble from a professional conduct perspective or some other perspective and they have accessed them. So that -- that's the thrust of why I am saying it is good practice not to make these records available to anyone, frankly, that is potentially involved in the
incidents being investigated.
BERSHADSKI: The advice you give in this email is that: "There does not currently appear to be any reason to formally alert the police to these issues as there is upon which one might reasonably base a suspicion of a criminal offence having been committed." You yourself don't have clinical expertise; is that correct?
SLINGO: That is correct, yes.
BERSHADSKI: And you, by this stage, hadn't heard at all directly or in any form from the doctors, from any doctors, who appeared to have suspicions likening this individual to Beverley Allitt, had you?
SLINGO: No. But that was also not the thrust of the conversation that I was giving advice on.
BERSHADSKI: Yes. Yes. I mean, given that it did appear that at least one Consultant did have a suspicion of deliberate harm, why not at that stage say: well, whilst the evidence is limited, if there is a professional person who does have a suspicion, the police ought to be called in so that they can investigate and actually consider the evidence?
SLINGO: I -- I think that is a very good question and as we sit here, I absolutely wish I had done that for all the reasons you will understand.
But I -- I had to make some suggestions based on the information I had and the information I had was incredibly limited. I could certainly have -- and I have mentioned this in my statement in hindsight -- not have advised at all but simply said I need more information to understand what's going on and I think the -- the focus is naturally now for all the reasons we understand, a concern around deliberate harm. But in all conscience that wasn't the -- the thrust of that conversation at all. The conversation was far more akin to many, many that I have had over the years around concerns with clinical outcomes, for example, or concerns about incident trends. So it wasn't -- it wasn't in my forefront actually that there was a deliberate harm situation and had there been any concern that there was, you know, deliberate harm or killing of babies, there would be no question that my advice would have been very different.
BERSHADSKI: You went on to advise that this fine balance of decision-making be kept under very close review with a very low threshold for moving this to a decision to notify the police. What did you mean by that advice?
SLINGO: So I think as we will come on to with my 2017 email, the -- the consideration around clinical competence or incidents that might be landing at a particular individual healthcare professional's door needs to consider whether there is a sort of gross negligence/manslaughter risk here. At that date there was nothing I was being told that would suggest that for a moment. But I encouraged through my use of very low threshold referral to the police finally balanced decision and daily review, I was trying to encourage the Trust that if anything emerged that might amount to a criminal matter, that they didn't hesitate. The challenging part was that I wasn't being given anything that suggested that that day.
BERSHADSKI: Your next -- that can come down off the screen now, thank you very much. The next occasion on which you have any contact with the Trust is on 30 March 2017; is that right?
SLINGO: So there was a brief moment in September 2016 when I understand the Trust wanted an additional call.
BERSHADSKI: Yes.
SLINGO: I was in a court hearing and therefore took no part in that call.
BERSHADSKI: Yes.
SLINGO: I think Mr Pace dealt with that so I wasn't aware of anything in that period. But yes, eight months
or so goes by before I get any further contact from -- from the Trust.
BERSHADSKI: You -- I think the chronology is that one of your colleagues, Deborah Healey, she is somebody who worked in the employment team; is that right?
SLINGO: She was a partner in the Manchester office, in the employment team, yes.
BERSHADSKI: In the -- thank you. So she contacted you I think on 28 March to ask that you have a further call with Sue Hodkinson at the Trust; is that right?
SLINGO: That -- that's right, yes.
BERSHADSKI: Prior to that call taking place, you didn't see any documents or reports into the matters at the Trust; is that correct?
SLINGO: That's right. You will have seen from the end of my email from the July encounter that I had asked foresight of documents. The Terms of Reference for the Royal College review that was about to happen, anything really that would help me fill in any gaps and again that sort of positions, the expectation that this was an ongoing engagement that the Trust would be instructing us effectively on an ongoing basis to help navigate whatever they were dealing with. But I heard nothing following the July email and yes, I had absolutely nothing before, well, absolutely nothing, I had one
thing which was a link to the staff internal briefing.
BERSHADSKI: Yes.
SLINGO: But otherwise, no other materials and had asked for that ahead of the call so that we could talk in context because I didn't know what had happened in the last eight months.
BERSHADSKI: Well, did you -- excepting the July email, did you ask for further documents when you knew that you would be having this second call?
SLINGO: Yes, so when we arranged the call time, I had asked if they could -- I think there is an email from myself to Sue Hodkinson saying: please feel free to send me documentation ahead of the call, including any of the reviews that have been done but I didn't receive that. So I was in the same position I had been in eight months earlier which is I had no additional information and was reliant on the same length, 42-minute call with the Trust.
BERSHADSKI: If we go to your note of the call that you have with Sue Hodkinson, that is INQ0101944, this is your handwriting, is it?
SLINGO: It is.
BERSHADSKI: You are told in this call, aren't you, that if we look at the first -- what's next to the first arrow: "Consultant concerned re a number of cases where
'unnatural/ ...'" I think that reads "'unanswered' causes of death"; is that right?
SLINGO: At this point, my apologies for my writing, it will either be unanswered or unascertained?
BERSHADSKI: Yes. Now, was that not an indication that a Consultant was concerned that this was potentially a deliberate act?
SLINGO: This was potentially, sorry?
BERSHADSKI: That this was potentially a deliberate act with the use of an unnatural cause of death?
SLINGO: No because an unnatural cause of death will include a very wide range of things. It doesn't mean deliberate harm. So I deal with many, many inquest cases and have done over the course of my career and they only appear before the Coroner where they are an unnatural cause of death. So, to my mind, that was a -- that wasn't triggering what is now, of course, understood to be the case.
BERSHADSKI: If we go to page 3, you are told, as well, that: "The Consultant feels [I think that reads, correct me if I am wrong, of course, please] feels that the Royal College review was a service review, not an in-depth forensic review. He believes something has happened."
SLINGO: Yes.
BERSHADSKI: What did you mean by "He believes something has happened"?
SLINGO: That that section is me recounting what I was being told by Ms Hodkinson. So I think those will be her words not mine. And I -- at this point, I didn't know what the something would be and, again, the range at that point -- now, of course, we would always think of deliberate harm but, at the time, somebody, some individual being, you know, repeatedly incompetent or, or performing so poorly that they might be grossly negligent would be part of the mix there.
BERSHADSKI: You then record in the next section: "Consultant not saying if you don't do it we will but ..." Does that read "but threatening resignation"?
SLINGO: Yes, I think that is what I have written. Again, this is information. If it helps navigate slightly, although it's not entirely consistent, where there is a little asterisk, it's often me having a reminder to myself to ask something or to note something; where it's written as sort of arrows it almost me capturing what I am being told. That's not an absolute blanket rule because I have
noticed later that I have flagged bits with an asterisk that I'm clearly being told. So, for example, further down the page, I have said -- I have noted that the MD -- sorry: "The MD [so Medical Director] has always reviewed cases against shift patterns. She is there a lot but ..." And then I haven't finished the sentence. Then the next line down says: "MD considers satisfies incident investigated."
BERSHADSKI: Yes.
SLINGO: So this call was largely around have we done enough? That was the essence of the call: is there anything else we need to do; anywhere else we need to go?
BERSHADSKI: Well, did this not raise your index of concern about these events because a review -- from what you are told, and I appreciate you didn't have the document itself, you weren't able to read it therefore, but you are being told that a Royal College review has been done but the way a Consultant is reading it is that it's a service review, it hasn't actually achieved any forensic conclusions. He still believes something has happened and the Consultant appears to feel so strongly about this that he is threatening to resign. Shift
patterns have been considered and this individual is there a lot. Has that not raised your level of concern such that, by this point, you had said in your previous email, back from July 2016, that there needs to be a very low threshold and it's a fine balance of decision-making. Why does this further information not tip you into saying, "Well, actually, you have done what you can, there's still this concern, now's the time to contact the police"?
SLINGO: Well, that's what my advice is: it's that they should take steps to further engage the Coroner and include the police in that engagement, so that there is no doubt that they have looked at everything in the way they should, involved the right people and also could reassure the Consultant that that's been done.
BERSHADSKI: Well, if we go to your email that follows this call, it's at INQ0101937, if we go over to page 2, we can see that you write: "The question the Trust is now considering is whether and, if so, how to liaise with the police in this matter ..." Then under "I advise the following", the first bullet point is: "If the matter is to be referred to the police.
Then a few bullet points down again: "If a decision is made to actively engage the police ..." Similarly, over the page on page 3, you say, in the middle: "The decision currently faced regarding police referral ..." So would it be fair to say that it was still an "if" rather than "how", at this point?
SLINGO: Yes, I mean, again, this is going to sound wrong in the context of everyone hearing this from the outside but we were advising, it's not my decision that they should go to the police. But the email very clearly talks through, if the Trust do decide to go to the police, this is how I would recommend they go about it. So my expectation is that they take from that that this is something that shouldn't be closed down without the police being aware and, again, if I can just put it in context and this is just to help, not to defend, because that's not what we are here for, the call was much more -- the call eight months in was much more "We have done X, Y and Z, how do we bring this to its natural conclusion?" It wasn't -- it felt very much that there was a view that enough had been done and I think my -- my reference to the Medical Director having reviewed things and having done things and feels enough's been done, I was almost being asked as an almost check and balance, was my impression, and part of my advice on the check and balance was, you know, actually you have had some apparently encouraging and useful conversations with the Coroner, I think you should continue that, but include the police in that, so that all the people that need to know, know and then decisions can be made by those people as to whether there's more to do. And I appreciate that is subtly different from "You must go and refer this to the police now", I absolutely see that.
BERSHADSKI: Thank you. That email can come down off the screen, thank you very much. If I might just ask you to reflect on a couple of matters. Do you think now, looking back on matters, given what you knew at the time, so I am not asking you to use the benefit of hindsight and include matters which you have only become aware of since, but do you think, looking back, given what you knew at the time, that there should have been stronger advice given, either stronger advice given that if there is a concern by any professional person you need to go straight to
the police, or that you simply shouldn't have advised without seeing much more information yourself?
SLINGO: I think both of those are relevant reflections and they are -- they are reflected in my statement. If I am talking now to colleagues that I am training and developing, of course we always want to get the best information upon which to then advise. The nature of being a healthcare lawyer is such that you do get called on the hoof and you get called to give your views. That can be very, very challenging. We run an out-of-hours service so 24/7, we are called to give advice, having been woken up and all sorts of things. So it's -- part of what we do is to try and advise based on information we have. But, in this case, as I think you are aware from the parts of my statement where -- and I think you just popped it up on screen -- I was expressing internally a real professional discomfort that we didn't have any information and certainly not sufficient information to really get into some detailed and substantive advice. I gave the advice to the best of my knowledge at the time. If I had had my time again, would I have simply said no? I am probably not that person, I am probably somebody who is used to trying to help and get through this. My entire job and career is about patient
safety and trying to help the healthcare service. So it's enormously devastating to find out what happened next. Should I have said categorically "Refer to the police"? As I sit here, I wish I had but, actually, even with the benefit of hindsight, looking really closely at what I was told, it didn't feel like that at the time and that was the basis of the advice I gave both in the July and the following April. I feel more comfortable that in the April I made it very clear that I expected there to be police involvement, rather than this matter just be shut down. But I don't think, even looking at the July time I had information that would have led me to very robustly advise that a police referral was, was mandated. I have advised clients since. I have over-advised clients since, in situations that have been mere clinical incidents, not anything more sinister. But I did my best based on what I had.
MR BERSHADSKI: My Lady, thank you, those are my questions. I think there are some questions from Mr Skelton.
LADY JUSTICE THIRLWALL: Mr Skelton.
Questions by MR SKELTON
MR SKELTON: Ms Slingo, I ask questions on behalf
of one of the Family Groups. Am I right in understanding that you had briefly looked at Ian Pace's notes before your call, the July call?
SLINGO: On 18 July?
SKELTON: Yes.
SLINGO: I believe I had seen his note of 5 July before I had the call with Sue Hodkinson.
SKELTON: Can we just briefly have that up on screen again, please, INQ0101934. Excuse me. So without going through this again in detail, this is about an alarm going off about increased mortality previously and then the alarm going again about increased mortality and then there is, in the second paragraph, after the sentence about "the third baby is now failing": "The midwives are saying this is because of congenital issues. From an employment respect, staff were turning themselves. They are all pointing fingers at each other. There has been an instance where a consultant referred to a midwife as Beverley Allitt. Dee is satisfied there are no malicious issues involved." So from those sentences, it does appear that, at least in somebody's mind, there is consideration of malice or foul play?
SLINGO: From that note, yes.
SKELTON: So that was raised in Ian's conversation?
SLINGO: Yes.
SKELTON: Can we now see your note, please, of the conversation that you had, and that's INQ0101941?
SLINGO: Could I just note that there is a line in that, that note, that can't be right, which is that it says that I spoke to Dee Appleton-Cairns. I didn't. I pursued her for a date for us to speak by email and then we had the Sue conversation. I didn't speak directly to Dee Appleton-Cairns following that call.
SKELTON: Understood. Thank you. So just again, by way of context, it's well understood that you are coming at this relatively cold. You have read a note and you are bounced into a conversation with someone you don't know about an issue you have not heard of before?
SLINGO: Yes, exactly that.
SKELTON: You make some handwritten notes?
SLINGO: Yes.
SKELTON: You can see them on the screen, and it is just the bit really at the bottom where I think it says "15/16 anomaly"?
SLINGO: Mm-hm.
SKELTON: "Mortality", is that?
SLINGO: Yes.
SKELTON: "Review", what data is that?
SLINGO: Clinical data.
SKELTON: "Review staffing data"?
SLINGO: Yes.
SKELTON: What for?
SLINGO: I am -- this is me being told by -- given a sort of narrative by Sue.
SKELTON: They have reviewed the clinical data, they have reviewed the staffing data?
SLINGO: Yes.
SKELTON: Then "prevalent in shifts supported when deaths have arisen", so this is to do with the nurse, is it?
SLINGO: Yes.
SKELTON: She is generally around on the shifts and supported when the deaths have arisen? "Clinically no evidence re staff member." So that is the same staff member?
SLINGO: I am so sorry. I can't hear you very well.
SKELTON: Sorry: "Clinically no evidence re staff member."
SLINGO: Yes, and I seem to have underlined the "no evidence" because, obviously, that was something that I would be looking out for.
SKELTON: Whose view was it there was no evidence?
SLINGO: This is just what Sue is telling me.
SKELTON: Okay. So the nurse is connected or correlated with the deaths but there is no evidence that her clinical practice is substandard in the context of the deaths --
SLINGO: Yes.
SKELTON: -- as far as you are being told?
SLINGO: That is what that would say to me.
SKELTON: So this isn't a negligence issue, it seems; it's not medical negligence, incompetence?
SLINGO: Well, that, that's -- they are saying there is no evidence.
SKELTON: Yes.
SLINGO: Sorry, my note just says "Clinically no evidence re staff member", so I take that in the round. I don't know if -- we certainly didn't discuss whether there was a sort of medical malpractice, a clinical negligence issue about the care given. It just says "Clinically no evidence re staff member", but I would, I would, yes, I would assume that what they have done is said, "We have looked at the clinical information and there's nothing to see about that staff member and their care".
SKELTON: She's done nothing wrong clinically?
SLINGO: That, I can't remember that but that's my
interpretation of what's being said there.
SKELTON: Okay. So why are the police being mentioned?
SLINGO: Why, sorry?
SKELTON: Why are the police being mentioned? If there is a high number of deaths, correlation with a nurse, but no concern about her clinical practice, why are the police being mentioned?
SLINGO: Well, I assumed the police were being considered in order to check whether there had been any offences and, as I said earlier, gross negligence manslaughter would be part of that and would be much more normal for me to encounter.
SKELTON: I appreciate it would be much more normal but there is other offences that occur --
SLINGO: Yes.
SKELTON: -- particularly in multiple cases. Gross negligence does occur, usually it is a single event, the classic anaesthetist not putting in the tube the Adomako case, with which law students are familiar, but multiple deaths: why did you assume it was gross negligence manslaughter and not murder?
SLINGO: So I think I answered that earlier but I am happy to go over it again.
SKELTON: Do.
SLINGO: In my world, murder is not something that is seen very often at all. So very, very common is a range of poor competence clinicians who have sometimes on multiple patients -- so had difficulties with the care. So there are -- I get involved a lot in re-calls of patients, people who have been treated repeatedly by people in a poor way, that isn't necessarily obvious from the clinical data or clinical records even, but which comes to light over the course of looking at outcomes or some other raised concern. So you are absolutely right, clearly murder is one of those issues. It wasn't at the forefront of my mind as a result of this conversation and, if it should have been, then of course it should have been, but it wasn't.
SKELTON: I am going to put it to you that it should have been --
SLINGO: Okay.
SKELTON: -- because you have read the note of Ian Pace, it is mentioning Beverley Allitt, so it's dropped a seed of suggestion that you are dealing with deliberate harm; you have multiple deaths of children; you have no suggestion of incompetence; and you have a clear potential cause of calling the police, somebody wants to call the police. So, in those circumstances, it had to be in your mind that there was a potential serious criminal offence as a possibility?
SLINGO: So I can only do my best with my evidence here and, and I can honestly say it wasn't -- it wasn't I don't think it was even in my mind at that point, it wasn't something that was -- I mean, the idea of somebody killing neonatal -- neonatal patients was not the thrust of that conversation at all and I absolutely understand why everybody would now wonder why not. But it genuinely wasn't. So I -- I can't explain it any better than that, I am terribly sorry, but I have explained why I advised in the way I advised.
SKELTON: Can you explain who was considering calling the police?
SLINGO: Not a specific individual, no.
SKELTON: So was it Sue, or was it someone else?
SLINGO: I -- I wasn't given that information.
SKELTON: Did you ask?
SLINGO: No, I didn't. I took it, I advised people corporately, so I took it as the Trust was wanting some advice or some, some view on what to do next. So I didn't take it as an individual calling me because we are not instructed by individuals.
SKELTON: So just in terms of your curiosity about why the police are being mentioned, because it is highly unusual, isn't it, in the context of neonatal care to be thinking about calling the police in respect of a nurse,
it is a very unusual situation, it is a sort of red-flag conversation?
SLINGO: It is unusual. I think it's, it's -- increasingly people -- we all have open minds to has some care gone to the point where there is a criminal issue. So the increase in criminality, if you like, of poor clinical care is something that I am -- as was and am very familiar with. So the idea of the police being involved in healthcare where there are adverse incidents or issues of concern is not as unusual, as you might think. It's not every day by any stretch. It's becoming more common.
SKELTON: What did you think the phrase "Clinicians are saying it's her" meant?
SLINGO: Yes, I mean, I have written that down as something that Sue has clearly said to me. I -- I didn't seek to interpret that other than this individual is still someone being considered as is she involved in this or not.
SKELTON: The reading to the person coming at it cold --
SLINGO: Yes.
SKELTON: -- looks like they are pointing the finger and saying "She killed those children"?
SLINGO: Okay. I --
SKELTON: Do you see that?
SLINGO: I see it here and now absolutely. I -- I didn't take from that call that they were accusing her of murdering neonatal babies because that's not the advice I would have given had that been my belief at the time or what I had taken on board. That wasn't in the way in which that was put to me at all.
SKELTON: I wonder if you should have asked more questions, in the circumstances?
SLINGO: I am absolutely open to people suggesting that. We only do our best.
SKELTON: Your advice, I think, had you understood it to be that the doctors were accusing a nurse of killing patients, would have been very different, no doubt?
SLINGO: Of course. Of course.
SKELTON: Call the police?
SLINGO: Yes. But this, this whole call, it was a 42-minute call, where we went over a lot of ground that Sue Hodkinson was trying to convey to me cold and I took away from that call -- I did not take away from that call the idea of there is a nurse potentially killing babies in this hospital. That, it simply would not have been my advice if that was what I came away from that call thinking.
SKELTON: Knowing what you now know, I don't know whether you have followed this Inquiry in any detail but there was a lot of evidence being gathered over the preceding year about the deaths as they continued and increased and, certainly within the doctors' minds, by this time of this call, they were suspecting that Lucy Letby was killing babies. Do you feel that you were misled by Sue Hodkinson in this call, about the nature of the concerns about which you were being asked to advise?
SLINGO: So I think there is a couple of things I would like to respond on that. So firstly, although of course natural curiosity means that one follows an Inquiry like this, because I knew I was giving evidence I have not read through all the material and the evidence because I didn't want to put things in my mind that I simply didn't know when I was advising. So I am not all over the detail of who knew what and when. However, I -- I do think that I didn't have all the information that you suggest it was available by the July period in 2016, because it doesn't feature in my note as part of the narrative and the history given by Sue. I think it would be unfair of me to sit here and suggest that she misled me because I don't know, I genuinely don't know. I think she would have to answer that for herself.
SKELTON: Well, if she knew that the Consultants thought Lucy Letby had killed the babies and she didn't tell you that in a conversation in which you were being asked to advise about calling the police, then that would be a serious omission, wouldn't it?
SLINGO: I would be disappointed to learn that, yes. I -- I am trying to be really fair to somebody that I don't know and I know is going to be called to give evidence to account for herself. I can only tell you what I was told and, if I wasn't told everything that was known, then that would be disappointing to find out and that appears to be the case.
MR SKELTON: Thank you. Thank you, my Lady.
LADY JUSTICE THIRLWALL: Thank you, Mr Skelton.
MR BERSHADSKI: I think, my Lady, if there could be a short break now before the next witness is called.
LADY JUSTICE THIRLWALL: Yes, certainly, I think we can infer from that, Ms Slingo, that your evidence has been completed. Thank you very much for coming and you are free to go. We will just take a short break and start again at 3.00.
(2.50 pm)
(A short break)
(3.00 pm)
MS LANGDALE: My Lady, may I call the next witness please, Mr Medland.
LADY JUSTICE THIRLWALL: Do come forward.
MR SIMON MEDLAND (sworn)
LADY JUSTICE THIRLWALL: Do sit down.
MEDLAND: Thank you.
Questions by MS LANGDALE
MS LANGDALE: Mr Medland, you have provided a statement to the Inquiry dated 2 July 2024. Can you confirm that the contents are true and accurate as far as you are concerned?
MEDLAND: Yes, I can.
LANGDALE: You tell us in the statement that you were called to the Bar in 1991, you were appointed then Queen's Counsel in 2011, working from Exchange Chambers from that time in silk; is that correct?
MEDLAND: That's correct.
LANGDALE: You were instructed for our purposes in April 2017 by Mr Stephen Cross, on behalf of the Countess of Chester Hospital. We know from your statement that there was a conversation between yourself and Mr Cross on the telephone and subsequently a number of documents sent to you. Can you tell us, first of all, about the conversation and then we will look at some of the
documents that were sent to you. What do you remember now about the contact or telephone contact from Mr Cross?
MEDLAND: Nothing other than that which I have put in my statement, really. It was a general conversation to talk to me about the impending instructions which he intended to give and a general scene setting. I'm afraid I am unable to assist with anything more detailed than that, above and beyond what I have put in my statement, namely a general conversation. There was concern amongst some of the Consultants about serious occurrences in their part of the hospital and he wanted me to consider those and then report to the board, and he indicated in that conversation that the Consultants were not content with the way the hospital had dealt with the matters that they had raised. And that there was dissatisfaction in the working relationship. As I have termed it in my statement, it was not at all harmonious.
LANGDALE: Had you worked with Mr Cross previously?
MEDLAND: A few times, yes, I had been instructed on behalf of the hospital to attend certain Coroners' Inquests and the like not very many, perhaps half a dozen, I think, and therefore I had been instructed by him before.
LANGDALE: Half a dozen over what period of time?
MEDLAND: Probably a couple of years, something like that.
LANGDALE: You say: "He was instructing me to bring independent common sense and wisdom to bear on the situation in which he stated he had considerable concerns as to what was unfolding in front of him and the hospital but in which there was some tension arising from the various duties of care which he had."
MEDLAND: Yes.
LANGDALE: Would you like to expand on that: what was his concerns?
MEDLAND: Throughout my involvement in this, and certainly subsequently, as the court cases became public news and then the Inquiry was under way, I have reflected many times that the -- there was a series of not always aligned duties of care, which he and others found themselves rather caught in, was my impression. For example, he had a duty of care to the hospital but also to the patients and the staff. The staff had duties of care to each other and the hospital but also the patients. And this internal problem, where the whole thing seemed internalised to me, was one of the features which I felt did not help and certainly he
expressed those views to me that he felt rather pulled, as it were, from pillar to post.
LANGDALE: Did you know Mr Cross personally in any capacity?
MEDLAND: A little. I mean, in the sense that Chester is a small city. His brother had been and possibly still was, at that time, a defence solicitor, who I don't think I ever was instructed by, in North Wales but was certainly a personality there, and I was aware of him. So I had met Mr Cross a few times but --
LANGDALE: In social occasions?
MEDLAND: In social occasions, in the sense that he was someone who helped at the cathedral. I would see him there and around at various events as might occur in that sort of ...
LANGDALE: Would you have characterised him as a personal friend --
MEDLAND: No.
LANGDALE: -- or a colleague with whom you were friends or how would you categorise it?
MEDLAND: A colleague with who I was friends, an acquaintance. For example, we had never been out together privately, we had never been to each other's houses or anything like that, but I knew him and was on first name terms with him.
LANGDALE: So you understood that he felt conflicted by various duties of care. We know -- I will just put it on the screen so people can see. INQ0088716, page 1 is an email and it's an email that identifies: "Please find attached papers as discussed to you from Stephen ..." At the bottom, if we look at the bottom page 1 and then 2, over the page?
MEDLAND: Yes.
LANGDALE: "Please find attached papers ..."
MEDLAND: I think this was the packet I was given this morning -- this afternoon when I arrived.
LANGDALE: That's right, yes. When we asked you in your Rule 9 what material you had received, there was less clarity than this email appears to help us with because we see this was forwarded by Claire Raggett to the organisation Facere Melius, at the top of the page, who were examining events and providing a report to the hospital. So we see at the top this email reflecting with the attachments that may have or appear to have accompanied your email. So if I can take the documents in turn --
MEDLAND: Yes.
LANGDALE: -- those attachments referred to. The first one suggests that you received the Countess of Chester
RCPCH Neonatal Final Confidential Report. We know the RCPCH reported, and if we can have on the screen INQ0009618, page 9, this is the page from the RCPCH report. First of all, do you remember that you had got the Royal College report?
MEDLAND: I'm afraid I couldn't say that I definitely did but plainly I did.
LANGDALE: Okay.
MEDLAND: I just have no recollection of it.
LANGDALE: You say in your statement you thought you had the Jane Hawdon report?
MEDLAND: Yes.
LANGDALE: The Dr Hawdon report. That is not referred to here?
MEDLAND: No.
LANGDALE: Might you have got more information subsequently or do you think you got one batch of information. I appreciate it's a long time ago, you may have confused the two reports or not?
MEDLAND: It is and I'm afraid I couldn't say with any certainty one way or the other, I'm sorry.
LANGDALE: You tell us that in your statement: it's difficult to recall now?
MEDLAND: Yes.
LANGDALE: Obviously, you don't have the records from that time now, but you recall Jane Hawdon's name?
MEDLAND: Yes.
LANGDALE: And you're confident in answering that you did have a "report?" from her. But looking at this page for us, if you can, this is a page in a confidential report from the RCPCH. Do you remember if you saw this page of this report?
MEDLAND: I have to say I'm sorry I don't remember it. But I am certainly not going to say I didn't see it.
LANGDALE: No, fair enough. But if we look at what it says in any event at paragraph 4, about a nurse, an individual nurse?
MEDLAND: Yes.
LANGDALE: "The directors understood there was nothing about her background that was suspicious. Her nursing colleagues were reported to think highly of her and how she responded to emergencies and other difficult situations, especially when the transport team were involved. Apparently no issues of competency or training issues. Very professional and asked relevant questions demonstrating an enthusiasm to learn along with a high level of professionalism." If we go to the next paragraph at the end: "There was no other evidence or history to link Nurse L to the deaths and her colleagues expressed no
concerns about her practice."
MEDLAND: Yes. Well, as I said --
LANGDALE: You don't remember seeing it, in any event?
MEDLAND: -- I have no collection of seeing that, I am quite prepared to accept that I did. Not least because it tends to chime with the ultimate written advice I gave and, if one looks at the next --
LANGDALE: Let me take you to the next one. So that is the first one.
MEDLAND: Okay.
LANGDALE: Let that one go down, if we can.
MEDLAND: Yes.
LANGDALE: So it appears you have seen that and then if we can go, please, to INQ0014378, page 1.
MEDLAND: Yes.
LANGDALE: This is something from Mr Harvey, "Neonatal Services Summary"?
MEDLAND: Yes, yes.
LANGDALE: Let people have a look at page 1, I want to ask you about something at page 3 but to give people a chance to have a look at it.
MEDLAND: Yes.
LANGDALE: We see there "no evidence" at the bottom: "No evidence other than coincidence."
MEDLAND: Yes.
LANGDALE: "Sequence of events. Highlighted at the meeting there was one member of the nursing staff who had been present at more of the cases than any other member. No evidence other than coincidence."
MEDLAND: Yes.
LANGDALE: "Nurse noted to work full time, have the qualification and specialty. More likely to be looking after the sickest infant on the unit. Regularly worked overtime when the acuity was high or the unit was over capacity. No performance issues, no members of staff had complained."
MEDLAND: Yes.
LANGDALE: If we go to the next page, page 2. Reference to two triplets at the top.
MEDLAND: Yes.
LANGDALE: "Exacerbated concerns there being no obvious cause for the babies' collapse and it was alleged that the nurse referred to above was involved in the care of these babies and that unnatural causes had to be considered." We see further down the page an internal review. The third paragraph: "... correlated with the increased demand for higher level of care over the same period."
MEDLAND: Yes. I see that.
LANGDALE: If we go to page 3 at the top, "Consultants" -- sorry, I should have begun at the bottom of page 2 before: "The Consultants explained that their allegation was based on the nurse being on shift on each occasion an infant died, although not necessarily caring for the infant, combined with gut feeling."
MEDLAND: Yes.
LANGDALE: "There was no other evidence or history to link the nurse to the deaths and her colleagues had expressed no concerns about her practice."
MEDLAND: Yes.
LANGDALE: Then we see, at the bottom of that page: "The Trust Director of Corporate and Legal Affairs and Medical Director met with the Coroner on 8 February following publication of the College review. They met again on 15 February. The Deputy Coroner was also in attendance. This followed a receipt of a letter from the Consultant paediatricians in which they asked that we ask the Coroner to undertake a full investigation of all the deaths and unexpected collapses (this latter isn't within the Coroner's remit) between June 2015 and July 2016 because they were not reassured that all the deaths were due to natural causes."
MEDLAND: Yes.
LANGDALE: "This letter, together with Dr Hawdon's report was shared to the Coroner and Deputy and a detailed conversation was had regarding the paediatricians' specific concerns. The paediatricians' letter was shared with the College reviewers and Dr Hawdon, since in that letter the paediatricians highlighted that they felt that the concerns they had expressed were not included in the report."
MEDLAND: No.
LANGDALE: So did you see that at the time, this -- do you remember seeing this?
MEDLAND: Well, again, I do not remember it but it's part of the email that was sent. It was plainly sent to me and I, as it were, must therefore have seen it.
LANGDALE: If we look at page 4 under the summary: "We can demonstrate that we have taken the concerns raised seriously and have been open and transparent with the Coroner, our regulators, parents and the public. However, despite extensive and intensive review, the paediatric Consultants still feel there are questions to be answered and we feel that we need to share the details and discuss it with the police."
MEDLAND: Yes.
LANGDALE: Would you take that, that "we have been open and transparent with the Coroner, our regulators,
parents and the public", as fact, if you had read that?
MEDLAND: If I had read that, which I am prepared to accept that I did, then I would take that as being fact, and it certainly chimed with my understanding of their -- of the hospital's approach, what they thought they had done, how they thought they had behaved. Certainly.
LANGDALE: There is another document, that one can come down, in the ones you were sent INQ0003226, page 1.
MEDLAND: Yes.
LANGDALE: This is a document prepared by Mr Cross, 3 April?
MEDLAND: Yes.
LANGDALE: All chiming with your instruction from the 4th?
MEDLAND: Yes.
LANGDALE: We see this document entitled "Rationale", and it begins with number 1: "In our view, there is no evidence to justify a criminal investigation. However, in the spirit of openness and transparency the matter is being reported to the police having regard to the fact that a number of Consultant paediatricians are not satisfied with the very thorough investigations and reviews undertaken."
MEDLAND: Yes.
LANGDALE: We see repetition at 11, 12 and 13: "The nurse is one of a few who are full time and regularly worked overtime. Highly qualified, tended to look after the sicker babies. No concerns regarding performance, she had not been involved in any other incidents."
MEDLAND: Yes.
LANGDALE: "The Trust has demonstrated that it has taken the concerns raised seriously and has been open and transparent with the Coroner, regulators, parents and the public."
MEDLAND: Yes.
LANGDALE: The last document you are sent, it would appear, is INQ0002926, page 1. This is a timeline not described by the author for you on the document but it appears that this is Ms Hodkinson's timeline that you were also sent, and we see at the bottom of that 8 July, "SPC phone call with Mr Moore, Deputy Coroner", who was updating the Coroner on the 11th. So chiming with what you have been told about the Coroner, on its face?
MEDLAND: Namely that the Coroner, do you mean that the Coroner had looked at such as was referred to him or them and concluded that there was no clear outcome; there were unascertained reasons for death.
LANGDALE: There's also a reference, but I am not going to ask that it goes on the screen, but for those in the room or CPs, at page 5 there is also a reference to a call with a parent as well. I don't need to take you to that but, on its face, reflecting a call to parents that you had been told there is transparency with parents, the public and the Coroner. Did anything within the documents you were sent suggest anything else?
MEDLAND: No.
LANGDALE: You then have a meeting on 4 April with Sir Duncan Nichol, Mr Chambers, Mr Harvey and Mr Cross. If we can go please to INQ0003351, page 1. First of all, can you remember why you were meeting with the Chair of the board, Mr Harvey and Mr Cross first at this point?
MEDLAND: No. My, my only recollection or imagining is that it was in order to equip me the better to speak to the Consultants, I think, which came subsequently, didn't it?
LANGDALE: Do you remember at the beginning if you were asked to do that from the off or were you asked to just advise the board at the outset; did you know?
MEDLAND: What to meet with the Consultants, do you mean?
LANGDALE: Yes, which was it: were you supposed to be advising the board as to what to do or when did it become ...
MEDLAND: Well, I can't -- I cannot now remember whether, whether the hospital said I was to meet with the Consultants or whether it was my idea to do so.
LANGDALE: This meeting might assist with that, if we look at the meeting minutes on 4 April?
MEDLAND: Yes.
LANGDALE: It says at the top, "Mr Chambers outline", so it looks as though he outlined the meeting. Do you remember anything of that now, what he outlined as the purpose of the meeting?
MEDLAND: I am, I'm afraid not, I'm sorry.
LANGDALE: Then says: "Do not use para 1 re no evidence to justify a criminal investigation." Do you know what that meant we have seen that reference in Mr Cross' document rationale document, but?
MEDLAND: Yes, and I think I referred to in my statement because I think I was asked -- was I asked a specific question about this, or am I misremembering.
LANGDALE: No, you may have been. We will have asked I about these handwritten notes, yes, but can you remember now?
MEDLAND: Let me -- if I can just have a moment to remind myself because it sticks in my mind that I was asked a question about this in devising my -- writing my statement.
LANGDALE: If you look at paragraph, on page 4 of your statement, 95. You say: "I do not know what para 1 was nor do I know of which document it was. It was my view, having been instructed by Mr Cross, and hearing his summarised account that I needed to keep an open mind and I certainly never formed any conclusions before meeting the Consultants."
MEDLAND: Yes.
LANGDALE: Is it that you are thinking of?
MEDLAND: It may well be.
LANGDALE: That is where you were asked about it.
MEDLAND: Yes.
LANGDALE: So when you say "Do not use paragraph 1", so?
MEDLAND: Whether that was -- it may have been -- it obviously refers to para 1 of something, a document. Now, whether it was my saying that it was not correct to say that there was no evidence at the time because I hadn't seen the Consultants, I'm afraid I am rather at a loss to know without seeing the surrounding documentation. But it may have been that.
It certainly refers to paragraph 1 of a document.
LANGDALE: We then see further down reference to 13 deaths, five explainable, eight not explained?
MEDLAND: Yes, yes.
LANGDALE: Do you know who said that and what did you understand from that at the time?
MEDLAND: I don't know who said it. That was my understanding of the -- it chimes with my understanding of how the hospital saw the medical outcomes, if I can put it in that rather bland way, that they were faced with. That they understood there to be five explainable deaths and five unexplained.
LANGDALE: Then right thing to report to police?
MEDLAND: Yes.
LANGDALE: Do you know who said that?
MEDLAND: Again, I am afraid not. There appears -- is the letters "IH" on the line below?
LANGDALE: Yes.
MEDLAND: Now, whether that was Mr Harvey who said all those things or some combination of them, I don't know I'm afraid. I'm sorry.
LANGDALE: Then under "Advice", it said: "Any mileage in speaking to the Consultants again?"
MEDLAND: Yes, right.
LANGDALE: May that have been -- you said that might have
been your suggestion?
MEDLAND: Yes.
LANGDALE: Could that have been your suggestion?
MEDLAND: It could have been.
LANGDALE: "No evidence, no lead. Agree we need to get to the bottom of this."
MEDLAND: Yes.
LANGDALE: "If you force us to, same team best outcomes." Doing the best you can, can you help us with what may have been said by you then?
MEDLAND: Rather in line with my answer in respect to the question earlier on, "do not use paragraph 1 re no evidence", I have it in my mind that there was, there was a document somewhere in which somebody had written something along the lines of: if you force us to ... or I was saying that that would be an incorrect impression to give, that the hospital were being forced into acting thus implying that they had taken a view that they ought not to if that rather opaque answers makes any sense to anybody. But what exactly I was referring to, perhaps what I was saying there was that the hospital ought not to be seen to be forced into action which might imply that they didn't want to take action which was not my impression at all, or that that they weren't willing to take action, something along those lines I think is the only explanation I can give to it.
LANGDALE: Indeed when you say it wasn't your impression that they weren't going to be forced, the two documents we have gone to, both from Mr Cross and Mr Harvey say at the end that they are considering going to the police, they want to go to the police?
MEDLAND: Yes, indeed and although the precise date of it is not something that I know very shortly after my report to the board they did call the police in, I'm not entirely sure exactly when but it was shortly thereafter. But this brings me back to the point I made a few minutes ago about the "not always aligned duties of care", the feeling that Mr Cross and I am sure others in the hospital had, that they were -- they didn't quite know what to do for the best because they had some very highly qualified well-informed people who were reporting very serious concerns about outcomes, fatal outcomes, on the unit, and then on the other hand they had a series of highly qualified, well-informed investigators, Royal College and the like, Coroner, who had come in and none of them could find a problem to -- on which you could definitely put your thumb. And of course the pressing question was whether the
problems they might have been training problems, or negligence problems or poor working practice problems or they might have been problems inherent in the infant patients or it might have been a terrible series of crimes, as we subsequently find out it was. And at this stage the hospital, bearing in mind -- my impression of them was that they didn't really know what.
LANGDALE: "Any mileage in speaking to Consultants again?" You suggest that. What were you thinking the purpose of speaking to the Consultants would be or --
MEDLAND: Because I was actually quite surprised at what appeared to be the -- which I hadn't anticipated, appeared to be the considerable antagonism between the hospital and the Consultants which became apparent to me quite quickly once I had become involved in this but I hadn't anticipated it and it was strongly underlined and emphasised when I did actually meet them again. Because they -- they were collectively angry.
LANGDALE: Let's just look at this meeting for a minute. I will take you to the Consultants' meeting.
MEDLAND: Yes.
LANGDALE: But when you say you became quickly aware of the difference --
MEDLAND: Yes.
LANGDALE: -- of opinions, was that in this meeting, this is the first time you sit with the Executive Team, as it were --
MEDLAND: Yes.
LANGDALE: -- and Sir Duncan Nichol. Did you pick it up then in this meeting or in your conversation over the telephone with Mr Cross or when you met the paediatricians, when did you realise?
MEDLAND: So overall in my personal involvement in this was a fairly short period of time, I think about 10 days. I wouldn't say it was necessarily at one point as opposed to another but it was certainly by the time of this, by the time I had spoken to Mr Cross, seen what I was able to see in documentary form and then had the meeting, it was obvious that the Consultants were feeling overlooked and not being taken seriously.
LANGDALE: So you go and meet the Consultants and we are going to go to your minutes on 12 April.
MEDLAND: Yes.
LANGDALE: The Consultants who have given evidence, Dr Jayaram says accept the minutes, and Dr Brearey, in terms of what they state. But it was a long meeting, wasn't it, 90 minutes was the meeting?
MEDLAND: Yes.
LANGDALE: One of the things they took issue with was the
purpose of the meeting and their understanding was different from yours they thought about the purpose of the meeting. Can I ask you just to have a look an email from Dr Jayaram to Mr Harvey --
MEDLAND: Yes.
LANGDALE: -- which you wouldn't have seen at the time but INQ0006136, page 1. You see here Dr Jayaram to Ian Harvey he says at the top: "We are happy with the minutes. However, at the start we had a discussion about our respective understandings of the purpose of the meeting which highlighted a discrepancy. We had been led to believe that the purpose of the meeting was to help the Trust to frame what needed to be said to the police whereas Mr Medland told us that his brief was to discuss whether there was enough in our articulated concerns to make reporting to the police worthwhile."
MEDLAND: Yes.
LANGDALE: Can you remember now what you said about the purpose of the meeting and whether there was a difference between you, as Dr Jayaram explains, because their understanding at this point was you were going to the police and that was the case?
MEDLAND: Yes.
LANGDALE: And it was a question of how it was done whereas you were asking the question --
MEDLAND: Yes.
LANGDALE: -- effectively whether there was enough in the concerns to go to the police, do you see the distinction?
MEDLAND: Yes, I do.
LANGDALE: So what do you say about that? Was there a difference of opinion about that or how did you approach it?
MEDLAND: Well, it is -- it is obvious from the email letter that there was a difference in understanding. I am sure that his record of what I said as to my understanding of why I was there was accurate. I -- I can't I'm afraid shed any light on the Consultants' understanding or where they had got that from. Presumably from their dealings with the hospital, that was their understanding. I -- I don't know why.
LANGDALE: Was your understanding at that meeting we have just gone to with Mr Harvey, Sir Duncan Nichol, Mr Cross and Mr Chambers, was your understanding within that meeting that you were going to look at whether there was enough when you had that meeting with the Consultants, let's go have a look to see if there's enough?
MEDLAND: That was, that was essentially my understanding.
LANGDALE: Do you think that was their understanding too on 4 April that you were going to have that conversation or discussion to see if there was enough in their concerns to make a report to the police worthwhile?
MEDLAND: Essentially, yes, because -- and it goes back to the internal non-aligned duties of care point that I made, the hospital as far as I knew would have been all too keen to go to the police if they could be sure that by doing so that they had every reason to do so. Whereas by the time I became involved and this was obviously months after the first concerns had been raised, the matter had already been looked at by several different people or groups of people and every time it was looked at, it didn't seem to get any clearer. Therefore, the non-aligned duties of care under which Mr Cross, Sir Duncan and the others were working never seemed to get any less difficult to resolve. One way might have been for me to go to speak to the Consultants and that was how I ended up doing so, to crystallise it. Because rather going with the point that I think I have made in my statement to the Inquiry, this wasn't a situation where they were coming with a very particular case and saying to me this is our evidence to justify it or not quite that I could see.
LANGDALE: When you say "they" do you mean the Executives
and --
MEDLAND: No, I mean the Consultants in that and I think part of the problem may be -- may be -- that by the time I became involved there had been so many internal difficulties which had been thrown up by this investigation of human resources nature and problems with colleagues and personnel in that regard that really it had become anything but clear.
LANGDALE: Let's have a look at the minutes of meeting, thank you.
MEDLAND: Yes.
LANGDALE: That can come down. So INQ0003091, page 1.
MEDLAND: Yes.
LANGDALE: So these are your minutes --
MEDLAND: Yes.
LANGDALE: -- of a 90-minute meeting so you have obviously drawn together threads afterwards. We see page 1 there, if people can read those first and then we will go to the next page?
MEDLAND: Yes, thank you. Yes.
LANGDALE: You see the next page: "We all agreed that if there was an identifiable common thread between some of the deaths (cf Beverley Allitt) then this would be powerful prima facie
evidence that there was potentially a crime or series of crimes which had been committed"?
MEDLAND: Yes.
LANGDALE: Do you remember now whether one of the Consultants mentioned the case of Beverley Allitt or you did or how the discussion landed there?
MEDLAND: I can't say who mentioned it. I think that it was just to draw a distinction between the Beverley Allitt case and this which seemed to be relevant at the time. That is to say it was clearer in that case than it seemed at this moment.
LANGDALE: Then we see at paragraph 6, you gave your view: "The police, being strapped for resources in any event, can only sensibly investigate cases where there is at the very least reasonable grounds for suspecting that a criminal offence has been committed. He emphasised this was very different from there being mere suspicion and also very different from where there were questions about hospital procedures and processes as distinct from criminal actions."
MEDLAND: Yes.
LANGDALE: "SM remarked that officially reporting any matters to the police was a condign step which was effectively a public action and would incur adverse publicity and raise matters for the families of the neonates which might be seriously disturbing." Just going back to page 6 and the beginning of that advice. Of course the police do investigate where there is a mere suspicion, don't they? They should and can investigate where suspicions and concerns are brought to them?
MEDLAND: Yes.
LANGDALE: So do you think that was overstating that in this difficult meeting to say they need at the very least reasonable grounds for suspecting a criminal offence has been committed?
MEDLAND: Yes, I do.
LANGDALE: So looking back now, saying a suspicion is enough may have been a better way of summarising that?
MEDLAND: Yes, I think it would have been.
LANGDALE: You comment at the end a condign step, which is effectively a public action and would incur adverse publicity?
MEDLAND: Yes.
LANGDALE: Obviously baby safety is first and foremost, isn't it, and paramount in all of this?
MEDLAND: (Nods)
LANGDALE: So what is it that took you to the "condign step" and "incur adverse publicity", what did you think
the impact of that was set against baby safety generally?
MEDLAND: It was a matter which prayed on the minds of the hospital. It is not I think to be divorced from the not always aligned duties of care point. One of the matters which seemed to concern the hospital considerably was the prospect of starting a criminal investigation which would have impacted on families who had already undertaken the grieving process and what if the bringing in of the police was to give an indication of criminal action and criminal investigation when actually it had been sadly a course of nature or something less than crime, for example bad practice or negligence or something of that nature.
LANGDALE: Was it the Executives who were concerned about that second point, that if it wasn't the case that Letby was responsible for causing deliberate harm there would be adverse publicity and they were worried about that?
MEDLAND: They were worried about it for the reasons that I have stated. I don't wish to imply that they took a -- I had -- nothing gave me the impression that they took a light view of publicity in the sense that they just didn't want nasty headlines. Their concern was directed towards the outcomes for the Families who had already had to deal with the death
of their babies.
LANGDALE: Paragraph 10, you were involved in discussing a broader forensic review and what that might amount to and you record they were not blindly pressing for the matter to be reported but wondered who else might conduct such a review?
MEDLAND: Yes.
LANGDALE: The Coroner, Mr Rheinberg, had effectively declined to do so and in any event a probable conflict of interest was identified. What was the conflict of interest that you understood may have been identified or you identified, I don't know, how was that arrived at?
MEDLAND: I'm afraid to say I can't help. I re-read these when I was compiling my statement and I wasn't entirely sure, frankly, what I was referring to there. But as I recall, the Coroner had declined to conduct an investigation but what the probable conflict of interest was identified, I'm afraid I can't now say, I'm sorry.
LANGDALE: You repeat at paragraph 12 you didn't see as the material, as things stand, gave rise to reasonable grounds for suspecting?
MEDLAND: Yes.
LANGDALE: And I think you agree that that was overstated at the time?
MEDLAND: It was.
LANGDALE: The police would have been and should have been interested with the level of information the Consultants had?
MEDLAND: Yes.
LANGDALE: To be clear, I mean, Dr Brearey told us in his statement they were giving you examples. For example, they were talking about one baby, we know the baby as [Child I], and they explained that she was transferred between hospitals, the Countess of Chester and another hospital on a number of occasions improving at the other hospital and deteriorating rapidly at their hospital. That was one of the examples they gave you, wasn't it?
MEDLAND: It was and another one was the repeated highly unexpected outcomes for Twins, I remember.
LANGDALE: Did they mention rashes as well, was something said to you?
MEDLAND: Did they mention what, sorry?
LANGDALE: Anything said about rashes on babies?
MEDLAND: Yes, I am sure that there was, but ...
LANGDALE: Dr Jayaram describes you at one point saying "now you have piqued my interest". Is that a phrase you would have used, "now you have piqued my interest" when they were telling you, for example, about Baby I [Child I] or details, that they were interesting and important points?
MEDLAND: It might well have been, yes.
LANGDALE: Because you appear at paragraph 14 listening to them, you then say: "What was needed, they should make short notes setting out their best points, those matters which they say most clearly indicate in their minds reasonable grounds for suspecting that a criminal offence has been committed. It would help to crystallise matters and push them forward to a sensible conclusion. It would help everyone to deal with the matter head on in an inclusive, collegiate way."
MEDLAND: Yes. Yes.
LANGDALE: Then at paragraph 16, you thank everyone for their time, emphasise: "... had there had been clear information leading to reasonable grounds for suspecting criminal offence he would have no hesitation advising the hospital it is their public duty to report the matter. He indicated his view the Hospital Trust would agree with this course was cautious of proceeding along that path in the apparent absence of such material given the serious public and irrevocable nature of such a step?
MEDLAND: Yes.
LANGDALE: We know subsequent to this meeting the
Consultants did email each other and put together a document --
MEDLAND: Yes.
LANGDALE: -- of concerns. Indeed it was Dr Brearey who said had they been asked to do that earlier by no one in this pre-session the crystallisation for others, if it hadn't been obvious by what the Consultants had been saying along the way --
MEDLAND: Yes.
LANGDALE: -- may have been clearer?
MEDLAND: Yes.
LANGDALE: Can we please now go to the minutes of the board meeting held on 13 April, that can go down, INQ0003236, page 1. This is the meeting that you attend on 13 April we see the attendees on the front the chairman, Sir Duncan Nichol, Non-Executive Directors?
MEDLAND: Yes.
LANGDALE: Chief Executive, Mr Harvey, and yourself in attendance. If we go over to the page, please, and if we could all have a read of paragraphs 2 and 3, you repeat at paragraph 3: "No evidence of crime but the Consultant view is to go to the police. He suggested an alternative approach would be to approach the police member of the Child
Death Overview Panel although it's possible he may say he is unable to help due to his position. He also suggested the Coroner, Mr Rheinberg, but there would be a conflict of interest." You have expanded upon that earlier because you understood he wasn't inquiring into the deaths?
MEDLAND: Yes.
LANGDALE: You say in the paragraph below: "Mr Medland added that you need to accept that if something is still unanswered or there are still genuine concerns in well-minded people, you should go to the police"?
MEDLAND: Yes.
LANGDALE: On the next page, page 3, penultimate paragraph, you say it may help to sit down with the Consultants, not ignoring their concerns. We are going to do this with you as one team.
MEDLAND: Yes.
LANGDALE: Need to bring the Consultants back to the fold. Here is the action plan and you want to work with them. You might want to have Dr Hawdon be asked what's the forensic review and why the Level 2 cases? You say candidly in your statement, Mr Medland, you were not a clinical negligence barrister or a medico-law
barrister or a family safeguarding law barrister, so that recommendation, what she said wasn't something you scrutinised for yourself or unpacked to see what was required --
MEDLAND: No.
LANGDALE: -- there?
MEDLAND: That's correct.
LANGDALE: And you are suggesting the Consultants and the Execs did that together or thought about that?
MEDLAND: Yes, because they certainly weren't working together was my impression because quite -- quite the contrary.
LANGDALE: You say at paragraph -- page 4, the third paragraph up from the bottom, Mr Chambers asked you about paragraph 14 in the minutes and paragraph 14 was where you had suggested they put their best points together. So Mr Chambers asked you about that?
MEDLAND: Yes.
LANGDALE: "Mr Medland said the Consultants have swirling ideas about potential crime. I said it would be helpful for them to think about what crime they thought had happened, ie, did it always happen at 2am? It is about designing a process to shed light on any issues as you cannot just go to the police with some detail." We know that in the Thematic Review Dr Brearey had identified a pattern of deaths at night?
MEDLAND: Yes.
LANGDALE: It sounds as though you are coming up with 2.00~am. May they have said that to you as well something about that?
MEDLAND: Yes, it may well have been and I am prepared to accept that it was, to be -- to be balanced against the previous inquiries and investigations of a medical nature which had taken place, which never seemed to come to a conclusion that crime as opposed to anything else had occurred. So that was why I thought it would help because the Consultants, obviously brilliant and experienced people, well-intentioned people, they were clearly of a view which was not clearly the view of other people, of similar quality and experience and insight and therefore, my idea that the Consultants put together their own, as it were, best points to put their case clearly was, I hope, of some help.
LANGDALE: If we go to page 5, three paragraphs from the bottom, towards the end of the meeting: "Sir Duncan asked if everyone was comfortable that the Trust explores with Dr Hawdon to take the forensic review forward. Everyone confirmed that they were content with this approach.
"Mrs Hopwood asked would it be 4 or 8 cases? "Mr Medland replied it states Class 2 cases. "Sir Duncan added that it would not be limited as it is not yet known what the forensic review means." So there appears to be general confusion around what that review meant in this meeting, the forensic review?
MEDLAND: There may well have been. It was a very large number of people, I recall, at the meeting. So I think there probably was.
LANGDALE: And then we go over the page, page 6, paragraph 3 below. "Sir Duncan said that one consequence, as LL is expecting to come back to work and what we do say to her about the delays are not for the whole board to discuss but it is important to get it right when explaining the further delay."
MEDLAND: Yes.
LANGDALE: So that's where the meeting left. When you left the meeting, did you know what they were going to do next, what did you think they were going to do next and did you have any further communication on the topic?
MEDLAND: I don't recall any further communication from them. I am aware that they did go to the police fairly shortly afterwards, although I can't put a date on that.
You would know. But they -- they ended up doing that.
LANGDALE: Sorry I turned my back, Mr Medland, sorry.
MEDLAND: Not at all. I was just saying I didn't have any further dealings with them after this. I left the meeting once I had made my report to them and that was, as it were, the last involvement I think I had. Although they did go to the police fairly shortly afterwards.
LANGDALE: They did and we know that Dr Jayaram sent a letter directly to Mr Wenham who gave evidence yesterday. There was further meetings between Executives and Mr Wenham later?
MEDLAND: Right.
MS LANGDALE: Those are my questions, there may be others.
MEDLAND: Thank you.
LADY JUSTICE THIRLWALL: Mr Baker.
Questions by MR BAKER
MR BAKER: Thank you, my Lady. Mr Medland, I ask questions on behalf of the Families of 12 of the babies who were affected. Can I just ask about the circumstances in which you were instructed by Stephen Cross?
MEDLAND: Yes.
BAKER: He called you directly in chambers, is that
your evidence?
MEDLAND: I think so.
BAKER: Is that a common way to receive instructions?
MEDLAND: No, not for me and certainly not then. Normally it would be presumably a telephone call to the clerk in chambers and then a letter from the solicitors. But I think he called direct having spoken to my clerk, I think.
BAKER: Your relationship with him beforehand, it's correct to say, isn't it, you are a very senior Freemason?
MEDLAND: It is.
BAKER: Within his witness statement to the Inquiry, Mr Cross lists some directorships that he holds?
MEDLAND: Right.
BAKER: He's a director of both the Chester Masonic Development Freemasons' Hall (Chester) Limited?
MEDLAND: Yes.
BAKER: And the Masonic Hall, Cheshire View Limited?
MEDLAND: Right
BAKER: Also a trustee of the Cheshire Masonic Benevolent Association?
MEDLAND: Right.
BAKER: So it is clear that he also has connections with the Freemasons as well?
MEDLAND: Yes.
BAKER: Dr Brearey gave evidence yesterday about his concerns about the nature of your instruction in the case?
MEDLAND: Right.
BAKER: And his belief or rumours that he had heard that there were Freemasons on the board of the Countess of Chester and that that connection had led to your instruction?
MEDLAND: Well, there was no Masonic context to my instruction. I mean, if I can try to deal with this. As it happens, Stephen Cross is a Freemason and as it happens, I am a Freemason. We are not members of the same Masonic Lodge. We are not close friends. I have been a guest of his I think once, many years ago at his Lodge and I don't think he's ever been a guest at mine. There is no Masonic context to this to my mind at all. Had there been, I can assure you, and anybody who's concerned with this Inquiry, that I would have been entirely candid about that. To my mind it is of no more impact or relevance than if, for example, we had both had an interest in Crown Green Bowls or church bell ringing, to my mind, but I will happily deal with any concerns in that regard. So over to you.
BAKER: Well, in that case why did he instruct you?
MEDLAND: He instructed me I assume because he thought I would be able to do a good job.
BAKER: Of -- of what? What was the nature of your instructions, what were you being asked to do?
LADY JUSTICE THIRLWALL: We have been through that.
MR BAKER: Well, I can put it a different way.
MEDLAND: I -- I think I have fairly stated the nature and extent of my instructions and just pausing there for a minute. And dealing finally with the point you made rather surprisingly a few moments ago about Freemasons. I am not aware of anybody else on the hospital board, at all who is a member of the Freemasons, either a man or a woman, I think I should say that. Moving back to my instructions, I think I have dealt as fully as I can in my witness statement with what my instructions were.
BAKER: Well, Mr Medland, it is not a surprising thing to put, it was raised by a witness --
MEDLAND: Yes.
BAKER: -- and the Families who I represent are concerned by it?
MEDLAND: Right, I will happily deal with it.
BAKER: It is put for the right reasons.
MEDLAND: No, I am sure it is, I am sure it is.
BAKER: You have no experience in healthcare investigations?
MEDLAND: No.
BAKER: Did you see any issues at all with the Royal College report or the Hawdon report?
MEDLAND: Did I what, sorry?
BAKER: See any issues at all with the structure or scope of the Royal College report or indeed the report by Jane Hawdon?
MEDLAND: Insofar as I understand the question you put, no, I didn't. But I am not quite sure what issues I might have seen with them.
BAKER: Sorry, I beg your pardon. You didn't, when you reviewed the Royal College report --
MEDLAND: Yes.
BAKER: -- feel any concern that it didn't address directly the question of whether there were acts of homicide or suspected acts of homicide or investigate the basis for those?
MEDLAND: At -- at the time, no.
BAKER: Did that surprise you?
MEDLAND: At what point?
BAKER: At any point?
MEDLAND: It certainly surprises me now.
BAKER: Yes.
MEDLAND: Because as I repeatedly stated in my witness statement in general terms, looking at matters then it's very different from looking at matters now after an exhaustive police investigation and a very high profile, very long trial. I can only, say, speak to matters concerning my involvement then rather than now but it certainly surprises me now, if "surprise" is the right word, that such investigations as there had been by qualified people, by the time I became involved, had all rather led to a lack of clarity, not a clear picture.
BAKER: When you were reviewing those reports at the time, I think your position in answering questions from Counsel to the Inquiry a moment ago was that you saw that investigations had been carried out?
MEDLAND: Yes.
BAKER: May have taken some reassurance from the fact that they had not exposed any evidence of deliberate wrongdoing?
MEDLAND: Yes, they had not come to the conclusion that there was clear evidence of crime as opposed to anything else.
BAKER: But when you read them, you must have realised that those reports did not address directly or at all the question of whether or not a crime had been committed?
MEDLAND: Yes, I -- I think I see the point that you are asking about. Prior to the Consultants crystallising their particular best points, as it were, the case that they were pressing, it was all dealt with on a much more diffuse basis, I imagine. And the Consultants were not -- the Royal College, for example, and other people who had investigated the matters were not tasked with putting together a criminal case.
BAKER: Or indeed even investigating crime on the face of it, they were Casenote Reports into causes of death in the case of Jane Hawdon's evidence, and in the RCPCH, effectively a service quality review. So looking at those pieces of evidence when you reviewed the case, what reassurance could you take from those as to whether or not a crime had been committed or not?
MEDLAND: I don't know. I mean, I am not quite sure what -- what you are asking me to speak about. I read the reports such as I could and put them in my mind and built them into my understanding together with the other aspects of my involvement. I was not charged with making a critical analysis of the quality of those reports.
BAKER: Were you possessed of the necessary experience
to make a critical analysis of those reports?
MEDLAND: Arguably not.
BAKER: When you listened to the concerns of the Consultants, what level of proof were you anticipating that they would provide with regard to the question of whether or not police should or should not be called?
MEDLAND: It seemed to me that the potential outcomes of the various investigations would have been to see whether there was, for example, mere bad practice or poor training or poor supervision or some combination of things like that. The difference between those and whether there was in fact a series of very serious crimes which were being committed, as we now know undoubtedly there had been, was really the -- the distinction between the two.
BAKER: The Consultants were quite clear with you that they were concerned that criminal acts had taken place?
MEDLAND: I'm sorry, that they ...?
BAKER: That they were concerned?
MEDLAND: Yes.
BAKER: It may be the microphones.
MEDLAND: Not at all.
BAKER: They were concerned that criminal acts may have taken place --
MEDLAND: Yes.
BAKER: -- and that the police needed to be called?
MEDLAND: Indeed and that they felt, I think, that they had been drawing had been saying that for some months.
BAKER: Yes.
MEDLAND: And had not been listened to from their point of view.
BAKER: Did you have the skills or experience to weigh up and understand the basis for their concerns which must have been founded in their significant collective medical experience?
MEDLAND: Yes, they were not the only processors of significant medical experience that I encountered in this process. I have freely conceded that I had no specialist knowledge of medical law or hospital law or anything like that but I felt I was in a good position to judge their concerns, especially if they were, as it were, reduced into a clear set of their best points.
BAKER: But how are you in a position to arbitrate between these two groups of people? On the one hand the Consultants, on the other hand Stephen Cross, Duncan Nichol, Ian Harvey, Tony Chambers? Yes, are these the two sides of the dispute?
MEDLAND: Well, I am not entirely sure I would agree with that as being a characterisation of the two sides at all and neither was I charged with arbitrating
between those people. I was invited in because by that stage there was obviously a very significant set of concerns which had been looked at many times by many different people and had always ended up in the same point; namely, aside from the Consultants' view we can't be clear that a crime has been committed, to summarise it. Those are my words, not theirs so I was not charged with arbitrating between them and I think I had sufficient abilities to understand if there was clear evidence of a crime. Now as it happens, as it happens, it has been manifestly proved that on the basis of the information I was given -- on the basis of the information I was given I got it very badly wrong.
BAKER: Yes.
MEDLAND: On the basis of the information I had, as we all now know.
BAKER: But on reflection, the answer to the question: should the police be called?, is about understanding whether an investigatory threshold has been overcome?
MEDLAND: Yes.
BAKER: Now, in criminal practice, you will have no doubt been asked at various times to make a decision as to whether somebody should be prosecuted or whether a case should go to trial based upon evidence and that is a very different exercise from triggering an investigation because it requires a whole different level of evidence in order to be overcome?
MEDLAND: Yes.
BAKER: The answer was the only way in which the question could be determined: is there enough evidence of a crime or has a crime been committed?, is by bringing to bear the forensic powers of the police force in investigating crime, isn't it? It can't possibly be determined absolutely on any of the evidence that could be cobbled together within the hospital?
MEDLAND: Well, I'm not sure I like the sound of the phrase "cobbled together", that wasn't --
BAKER: Putting that to one side --
MEDLAND: That wasn't my impression of how things were being done. I am not, I think, taking a pedantic point in respect of the question which you raised because I understand why you do. The only time a decision is made finally as to whether a crime has been committed or not is when a trial is held and the jury says so. The investigatory process is different, the investigatory process at the beginning will decide whether there is any evidence, some evidence, sufficient evidence. Then there are decisions as to whether to charge, which is a two-fold test. With respect, I am
not entirely sure I agree that the only people who could have decided at that stage would have been the police because the Consultants themselves, as we now know, once it was crystallised had assembled a very clear picture to justify that but the police had not been called in by then and were shortly thereafter called in.
BAKER: Yes, and commenced an investigation --
MEDLAND: Yes.
BAKER: -- that revealed further evidence --
MEDLAND: Correct.
BAKER: -- that led to a trial and led to a conviction?
MEDLAND: Correct.
BAKER: Finally on a slightly different topic, you spoke about not well-aligned duties of care.
MEDLAND: Not always aligned.
BAKER: Not always aligned duties of care?
MEDLAND: Yes.
BAKER: Again without wanting to be pedantic, rather than duties of care, is the correct categorisation priorities that were not necessarily aligned in the same direction?
MEDLAND: No. I -- I don't agree with that. I was trying to think of how best I could describe at this hearing that point which I have described as "not always
aligned duties of care" and that was the way which I found best described what I am trying to describe and I am not prepared to change that to priorities.
BAKER: They all owed the same duty to the patients in the hospital, the primary duty was always patient safety; do you agree?
MEDLAND: I am sure that that must be right.
BAKER: But the argument or the not well-aligned positions, if I call it that --
MEDLAND: You may; I said "not always aligned".
BAKER: Not always aligned, was about a conflict between the need to call the police, one group saying: "We need to call the police we think a crime has been committed" and another group saying or worrying about the impact upon the reputation of the Trust in doing that?
MEDLAND: Those were some of the matters that were of concern together also with the issues of personnel, human resources, the general reputation of the hospital, the thought which was vocalised to me severally, that if the police were brought in when they ought not to be, how on earth are we going to justify that to the parents of babies? Which I have already spoken about.
BAKER: Yes, I mean the counterpoint to that is if the police aren't called in and this person is a criminal,
she will harm more babies?
MEDLAND: That -- that is certainly one possibility.
BAKER: Yes.
MEDLAND: Yes.
BAKER: I think the language, and it may be a phrase that you used, is that "once the police are called, the toothpaste is out of the tube", which is a part of your note?
MEDLAND: Yes.
BAKER: Was that an underlying priority for the Executives of the Trust, that once the police are called the cat is out of the bag when it comes to publicity?
MEDLAND: Well, I sought perhaps inadequately earlier to make the point, I hope fairly, that concerns about publicity and the hospital were not of a superficial nature, they were not just concerned about bad headlines because they didn't want them; they were concerned about what might underlie the headlines. So it wasn't a selfish concern, so far as I could make out at all. Their concerns -- I think I have stated them in my witness statement and in answers to questions to Counsel to the Inquiry and you, I think I have stated them several times now, the list of them, it -- it may not be everything that they said, but -- but those were a series of not always aligned duties of care which they had to their staff, to the patients, to the hospital, to the doctors, they didn't always run in perfect alignment.
BAKER: Do you think that the question of reputational harm is overstated in this context against when balanced against the risk to patient safety?
MEDLAND: Who has in what sense overstated and by whom?
BAKER: Well, doesn't reputation or isn't reputational harm inferior to risks that come in relation to patient safety?
MEDLAND: Yes, I would have thought so.
MR BAKER: Excuse me a moment. Thank you, my Lady, I have no more questions.
LADY JUSTICE THIRLWALL: Thank you, Mr Baker.
MEDLAND: Thank you.
MS LANGDALE: No further questions, my Lady.
LADY JUSTICE THIRLWALL: No, and I have no questions. Thank you very much Mr Medland, you are free to go.
MEDLAND: Thank you. Thank you.
LADY JUSTICE THIRLWALL: So that concludes the evidence --
MS LANGDALE: Until Monday.
LADY JUSTICE THIRLWALL: -- for today so we will reconvene at 10 o'clock on Monday morning.
(4.08 pm) (The Inquiry adjourned until Monday, 25 November 2024 at 10.00 am)
Witness: Alison Kelly: Former Director of Nursing
LADY JUSTICE THIRLWALL: Good morning. Mr De La Poer.
MR DE LA POER: My Lady, our witness today is Ms Alison Kelly. I wonder if she could come forward, please.
MS ALISON KELLY (sworn)
LADY JUSTICE THIRLWALL: Do sit down, Ms Kelly. Yes.
Questions by MR DE LA POER
MR DE LA POER: Please could you state your full name?
KELLY: Alison Kelly.
DE LA POER: Ms Kelly, is it right that you gave to the Inquiry a witness statement dated 13 August of this year?
KELLY: I did.
DE LA POER: Is the content of that witness statement true to the best of your knowledge and belief?
KELLY: It is.
DE LA POER: At the time with which the Inquiry is concerned, you were the Director of Nursing and Quality; is that right?
KELLY: Apologies, before we start, may I say
something, before we get into the formalities? I would like to express my condolences to all the Families and I am really sorry for all the distress that Families have -- have experienced over the last few years and are currently experiencing as we sit here today. I didn't get everything right at the time. However, the decisions I made were done with the best intentions. I do really appreciate having the opportunity to be part of this Inquiry and to share my reflections and to contribute to recommendations going forward. Thank you.
DE LA POER: At the time with which this Inquiry is concerned, were you the Director of Nursing and Quality?
KELLY: I was.
DE LA POER: In that role, were you an Executive Director of the Trust?
KELLY: Yes.
DE LA POER: We will just deal with how you came to be in that role. Did you qualify as a nurse in 1991?
KELLY: Yes, as a Registered Nurse.
DE LA POER: Did you then work as a nurse in adult care until 2007?
KELLY: Yes.
DE LA POER: In 2007, did you take on a management role, namely Divisional Head Nurse?
KELLY: Yes.
DE LA POER: This is not at the Countess but at a different hospital?
KELLY: Yes.
DE LA POER: The following year, were you promoted at that hospital to Deputy Chief Nurse?
KELLY: Yes, I was.
DE LA POER: In 2013, did you undertake the aspiring Director of Nursing programme facilitated by the NHS Academy?
KELLY: Yes.
DE LA POER: We will come to the Countess in a moment. But just before we get to the detail of that, in 2014, whilst at the Countess of Chester, were you identified as being in the top 50 national nurse leaders by the Nursing Times?
KELLY: Yes.
DE LA POER: So let's look at the Countess of Chester. You joined as Director of Nursing and Quality in 2013; is that right?
KELLY: That's correct.
DE LA POER: It was your first role as an Executive Director?
KELLY: It was.
DE LA POER: Your key responsibilities included -- you have given a long list in your statement but I will pick some
of them out -- providing strong leadership to the nursing workforce?
KELLY: Yes.
DE LA POER: Ensuring nursing standards were maintained?
KELLY: Yes.
DE LA POER: Also as part of your role, were you the Executive Lead for Safeguarding Children?
KELLY: Yes.
DE LA POER: In that position, did you chair the Trust's Safeguarding Strategy Board?
KELLY: Yes.
DE LA POER: So just to move past the period that we are focused upon, to complete your CV, in October 2018 to April 2019, did you act as the Deputy Chief Executive Officer for the Trust?
KELLY: I did.
DE LA POER: Did you also take on the role of Visiting Professor in Healthcare Leadership at the University of Chester between 2019 and 2021?
KELLY: I did.
DE LA POER: In 2021, did you leave the Trust to take up a position with Northern Care Alliance?
KELLY: I did.
DE LA POER: Now, we have heard on the subject of Northern Care Alliance that Mr Chambers went to work there in 2018. Was there any connection between the two of you at Northern Care Alliance?
KELLY: No, none at all.
DE LA POER: The first topic we are going to deal with, Ms Kelly, is safeguarding. As you have just told us, you were the Executive Lead for Safeguarding; is that right?
KELLY: I was.
DE LA POER: What you say in your witness statement, you don't need to turn it up but I can take you to it, but I will just quote: "The increase in mortality was never viewed as a safeguarding matter." That is the assertion you make in your statement; is that correct?
KELLY: That's correct, at the time, yes.
DE LA POER: Does that cover the full period that the Inquiry will be looking at all the way through to when the police were notified?
KELLY: Yes.
DE LA POER: As you might imagine, we are going to look at the detail of particular meetings in due course. At this stage I would just like to establish some fairly high level propositions. You had a meeting on 11 May of 2016 which included
Dr Brearey; is that right?
KELLY: That's correct, yes.
DE LA POER: He attended that meeting in his capacity as a Consultant paediatrician and the lead for the neonatal unit; is that right?
KELLY: That's correct.
DE LA POER: He was concerned about the increase in neonatal mortality; is that right?
KELLY: That's correct.
DE LA POER: Among the things said by Dr Brearey at that meeting was that he had a concern that Letby may be the cause of that increase; is that correct?
KELLY: We discussed at length the detail of the Thematic Review that he had undertaken with a number of colleagues including external stakeholders in addition to Eirian Powell's points that she had brought to that meeting. He never at that meeting talked about deliberate harm but he was worried about the increase in mortality.
DE LA POER: So we are just going to focus upon my question which didn't include the phrase "deliberate harm". It was that he was concerned that the increase in neonatal mortality may be due to Letby?
KELLY: May be due to Letby, yes.
DE LA POER: If it is due to her, there are only two
possibilities, do you agree? One, that she is doing so inadvertently, potentially through incompetence; or two, she is doing so deliberately?
KELLY: Yes.
DE LA POER: So although -- and we can come to the detail -- it may not have been said out loud, Dr Brearey was raising with you the possibility that Letby may be deliberately harming babies; is that fair?
KELLY: I would push back on that and say there was never any clarity in him articulating his true concerns at that time.
DE LA POER: No. But we have established that he -- what he has articulated to you is he is concerned Letby may be the cause and you have accepted that that can only be in one of two ways?
KELLY: Yes.
DE LA POER: So it must be the case, surely, that what he was saying is that Letby may -- he was raising the possibility that Letby may be deliberately harming babies?
KELLY: May be, yes.
DE LA POER: Of course as to the issue of inadvertent or incompetent harm, you had very strong reassurance, didn't you, in that meeting from Eirian Powell and Anne Murphy that incompetence was unlikely?
KELLY: Yes.
DE LA POER: Because they were telling you what a good nurse she was?
KELLY: Yes.
DE LA POER: So on that basis if Dr Brearey was correct in his concern, or may be, if anything, does that not increase the fact the possibility that it is deliberate?
KELLY: From his perspective there was a possibility that that was deliberate. But as we were talking through the information that we had to hand at that meeting, including detailed analysis of cases which pointed to some clinical issues, we were open at that meeting to what the causes could be. From a perspective -- from a nursing perspective, that could have been a competency issue.
DE LA POER: You were in a unique position that day in that meeting, weren't you, because you were the Executive Lead for Safeguarding?
KELLY: Yes.
DE LA POER: The only safeguarding role person in the meeting?
KELLY: Yes.
DE LA POER: Was that an extremely important duty that you had that day?
KELLY: Yes.
DE LA POER: Did that duty trump or should be treated as a priority over any duty that you had to the staff?
KELLY: At that time, it -- it wasn't clear to me that this was a safeguarding issue.
DE LA POER: My question is: was your duty to safeguarding your primary duty?
KELLY: At that time as the lead, yes.
DE LA POER: You have told us it didn't even occur to you to treat it as a safeguarding issue; is that right?
KELLY: That's correct.
DE LA POER: Do you accept that you should have thought about it in those terms on 11 May?
KELLY: I have reflected a lot about my safeguarding role in all of this case and reflecting back, maybe I should have done, yes.
DE LA POER: Now, within safeguarding, where there is a concern that somebody may be causing harm, in this case to babies, is it ever appropriate as an action plan just to wait and see if the harm is caused again from a safeguarding perspective?
KELLY: From a safeguarding perspective, no, that wouldn't be appropriate. However, I had assurance at that meeting from my senior nursing team that there were no concerns with that individual at that time.
DE LA POER: They had no concerns that she might
incompetently be causing harm, that is what they were telling you?
KELLY: Yes.
DE LA POER: Now, we are talking about safeguarding, which is about deliberate harm. Your strategy from that meeting was to wait and see if harm was caused again, wasn't it?
KELLY: I think we all agreed at that meeting that there was nothing clear -- clearly articulated at that meeting because there were clinical concerns in terms of outcomes and practice versus what I was hearing from my senior team, which was we had no competency issues. So we all felt by the end of that meeting that we could review the situation in a number of weeks' time. And everybody -- as far as I'm aware, everybody left that meeting feeling happy with those actions.
DE LA POER: Had you thought about what was being said to you as a safeguarding concern, would you have viewed it as appropriate just to wait to see if harm was caused again?
KELLY: If it was being viewed and we had had a collaborative conversation at that time about safeguarding, then actions may have been different. But we didn't have a safeguarding conversation because it was more about clinical outcomes and practice
and potential competency issues.
DE LA POER: So if you had thought to raise it as a safeguarding issue to say this may be a safeguarding concern, if you had said that at the meeting, you would have expected there to have been a discussion based upon that?
KELLY: Yes.
DE LA POER: If in those circumstances you had said to Dr Brearey: do you think she might be causing harm deliberately and he had said yes, what would you have done?
KELLY: We -- I probably would have took different action but that conversation never took place.
DE LA POER: Now, had you treated it as a safeguarding issue, would you have spoken to the named doctor, Dr Isaac, immediately following that meeting?
KELLY: I would have probably gone to my safeguarding team, as in the nursing team first, Dr Isaac was based on the unit. So I probably would have gone to my corporate nursing team first.
DE LA POER: Isn't this a matter for the named doctor?
KELLY: It -- it is but the first place I would have gone would have been my team, which are the safeguarding team.
DE LA POER: At that stage, would there have been
a discussion about whether Letby should be placed under formal supervision or even suspended or moved to deal with less sick babies? Is that the sort of discussion that would have happened had you treated it as a safeguarding concern?
KELLY: Potentially. Potentially if it had been discussed as a safeguarding issue at that time.
DE LA POER: And a referral to the LADO so that they knew what was going on would have happened?
KELLY: Yes, that would have been part of the process.
DE LA POER: Through that, the police would have been notified as part of the multi-agency response, wouldn't they?
KELLY: Potentially, yes.
DE LA POER: Well, is there any potential about it?
KELLY: Part of the process is the police, yes.
DE LA POER: Yes. Now, do you accept that it was your responsibility as lead for safeguarding to ensure that proper consideration was given in that meeting to safeguarding?
KELLY: Looking back, and reflecting on that meeting, there should have been a safeguarding conversation. But it never came up and I never approached it as a safeguarding issue. We talked about in detail the clinical reviews that had been undertaken as part of the Thematic Review; that had pointed to some clinical deficiencies at unit level. There was a comprehensive action plan that provided training to meet competencies of not just nurses but doctors as well and there was also a conversation about Letby herself, about her competencies as a nurse practitioner which I took from Eirian to give me some assurance that there was nothing to be concerned about.
DE LA POER: There was no concern she was doing it inadvertently?
KELLY: No. We didn't have that actual conversation.
DE LA POER: But that asking about somebody's competence can only reassure you that they are not doing it incompetently?
KELLY: Not doing it deliberately, yes.
DE LA POER: Now, you say it never came up. I would like you to just deal directly, please, with this. Did you have a responsibility to bring it up because you were the Executive lead?
KELLY: On reflection, yes, as a lead at that time. But I wasn't at that meeting thinking about safeguarding at that time.
DE LA POER: I am going to move to another opportunity. At the end of June, so again we are going to look in more detail at the timeline, but when you were notified about
the deaths of O and P, you heard about the concerns of the Consultants wanting Letby off the ward, and where the police was being talked about and you also had a meeting with Dr Brearey and Dr Jayaram along with your fellow Executives in which they talked about air embolism, at that stage you were having presented to you a safeguarding issue, weren't you?
KELLY: There was never any -- in June there was never any clarity and there was certainly -- again, nobody was treating this as a safeguarding issue.
DE LA POER: Can I just --
KELLY: There was no -- sorry.
DE LA POER: No, no, I cut across you, you finish your answer, please?
KELLY: There was no articulation of the actual issues, nobody had seen her do anything. There was terms used like "gut feeling" and "drawer of doom" which didn't pinpoint any particular issues to do with Letby. So on the basis of that, I didn't have any facts or evidence that I could have based my decisions on.
DE LA POER: You just needed the possibility of deliberate harm to trigger the thought process "this is a safeguarding issue", didn't you?
KELLY: Yes, in looking back on that, yes.
DE LA POER: Yes, that is all that safeguarding is; it is
not complicated, is it?
KELLY: No.
DE LA POER: If somebody says: I think X is causing deliberate harm to Y, that is immediately safeguarding, isn't it?
KELLY: It is and in the cold light of day now it's easy to look back on that but when we were dealing with issues that were being raised that were really not being clearly articulated it just didn't feel like a safeguarding concern to me.
DE LA POER: What is the first and most obvious step you do with a member of staff if they pose a risk to patients?
KELLY: You remove them from the clinical area.
DE LA POER: What did the Consultants say they wanted to happen to Letby?
KELLY: They did want her removing from the clinical area but we had no basis to do that, no evidence to do that.
DE LA POER: Well, you had information from a series of experts in the field that they were concerned that she may be deliberately causing harm; that's correct isn't it?
KELLY: Concerns, yes, but they never actually articulated what that was.
DE LA POER: Well, as I say, we are going to go into the
detail of exactly what was said but they told you that there were more babies who had died than had been expected, didn't they?
KELLY: My understanding at the time was that there was no unexpected or unnatural deaths at that time.
DE LA POER: Well, no. My question was about the total number: that there was an unexpected number of babies who had died; that the mortality rate had increased?
KELLY: The mortality rate had increased, yes.
DE LA POER: But it hadn't been expected, that increase?
KELLY: From what the doctors were saying, that is correct.
DE LA POER: Yes, so that's -- that's them giving you an expert opinion, isn't it?
KELLY: Yes.
DE LA POER: They told you as was recorded in the Thematic Review that there were sudden and unexpected deteriorations so far as many of those babies were concerned, didn't they?
KELLY: That was in that report, yes.
DE LA POER: That is what they were telling you in June?
KELLY: There were lots of other factors though from the Thematic Review.
DE LA POER: Did they tell you that in June?
KELLY: Can you just be --
DE LA POER: That there were sudden and unexpected deteriorations in many of the babies?
KELLY: Which part of June are we talking about?
DE LA POER: Well, we will take an example 29 June the meeting that Dr Brearey and Dr Jayaram were at?
KELLY: Okay in the bigger meeting.
DE LA POER: Yes.
KELLY: The 29th June. Yes, I think they did say that at that meeting.
DE LA POER: And that was them offering an expert opinion, wasn't it?
KELLY: Yes.
DE LA POER: And they told you that there had been a pattern that these deaths, six out of nine of them, had occurred at night and that that pattern had stopped when Letby was moved to days, didn't they?
KELLY: They did say that, yes.
DE LA POER: So that is a further piece of information that is relevant to weigh in the balance, isn't it?
KELLY: Yes.
DE LA POER: Because that is what you would expect to happen, if she was responsible for the harm?
KELLY: If she was responsible for the harm, yes.
DE LA POER: Yes. Well, at the moment you are not acting as judge, jury and executioner; you are just identifying
whether there is a basis for concern and that is something to add into the mix, isn't it?
KELLY: Yes.
DE LA POER: You were told that the babies, some of them, had not responded to resuscitation as had been expected?
KELLY: Yes.
DE LA POER: That is another expert opinion?
KELLY: Yes.
DE LA POER: Were you told about the unexplained rashes?
KELLY: No.
DE LA POER: So you have there, we have just been through, four expressions of expert opinion plus a fact which is consistent with the concerns that you are being told about?
KELLY: Yes.
DE LA POER: That is an adequate basis for action, isn't it?
KELLY: Yes. But we were balancing that with the nursing view of her practice and of how highly she was thought of on the unit as well.
DE LA POER: Which is irrelevant, is it not, to the issue of whether she is doing this deliberately?
KELLY: Well, we needed to get -- we needed to get more facts, we needed to pull things together to see what the fuller picture was at the time.
DE LA POER: In June, the possibility was made express that she was causing harm deliberately, wasn't it?
KELLY: That's what the medical staff said, yes.
DE LA POER: Yes. So you have got to confront that possibility, don't you?
KELLY: Yes.
DE LA POER: So the fact that she was a highly competent nurse, do you agree, is irrelevant to that question?
KELLY: Yes.
DE LA POER: Now, do you think in fact you did treat it as irrelevant or do you think that you relied heavily on that, even though it was irrelevant?
KELLY: I think at the time there was lots of different factors that we were trying to pull together and aside to the term "deliberate harm" which was the first time that we had heard that time in June '16, there were lots of other elements that we needed to consider, particularly out of the Thematic Review which was around the clinical reviews that had been done of the care. So there was some care omissions with those babies as well.
DE LA POER: It was a safeguarding issue to be confronted, wasn't it?
KELLY: Looking back, yes.
DE LA POER: Well, and you did not treat it as such at the time?
KELLY: Not at the time, no, and neither did anybody else.
DE LA POER: Well, nobody else was the Lead for Safeguarding, were they?
KELLY: I know, but I rely -- I take my duties very, very seriously and the structure, as you would expect, with -- with other elements of a director's portfolio relies on the structures beneath them to be able to report upwards and even though I had -- was part of those meetings in May 16, I was still relying on the teams from the unit upwards to bring any safeguarding concerns to my attention and nobody did.
DE LA POER: But it is part of your role to listen to what people are saying to you and to think: gosh, that sounds an awful lot like a safeguarding concern, even if they haven't not used the S word; isn't that right?
KELLY: It is my responsibility. Yes, but there was also designated safeguarding doctors and nurses connected to that unit that didn't bring any concerns to me.
DE LA POER: Well, did they know about it in June of 2016?
KELLY: I don't know.
DE LA POER: Did you ask them?
KELLY: No.
DE LA POER: Well, how can you rely upon the fact that they haven't come to you if you don't even know if they know?
KELLY: Because -- well, they were, they were on the unit at the time, so I would expect the clinicians to talk to each other there were designated doctors that were holding a role for safeguarding.
DE LA POER: Did they ever say they had spoken to the designated or named doctor?
KELLY: The clinicians didn't, no, not to my knowledge.
DE LA POER: So wasn't the obligation on you to flush that issue out by saying: have you spoken to the named doctor or even going to speak to the named doctor yourself, isn't that your obligation?
KELLY: At the time if we would have been discussing it as a safeguarding role, yes, that would have been my role. But I was also relying on others within the structures beneath me to also raise those concerns.
DE LA POER: Do you accept you should have been discussing it as part of your safeguarding role?
KELLY: On reflection, yes, because but at the time we were talking about clinical outcomes for babies and it was more around a rise in mortality as opposed to an actual safeguarding case. I know that sounds
difficult to -- to comprehend because we now know much more about what happened compared to what we were dealing with at the time.
DE LA POER: You knew at the time that the Consultants thought she was murdering babies; that's -- that was their central message to you, wasn't it?
KELLY: In June they talked about deliberate harm, yes.
DE LA POER: Yes. And -- and deliberate harm to a human being who is now dead is murder, isn't it?
KELLY: Yes.
DE LA POER: So you knew that that was their central concern and therefore you don't need hindsight or what we know now, do you; that is a safeguarding issue to be confronted, do you agree?
KELLY: Yes, at the time. But it wasn't -- it wasn't at the time.
DE LA POER: Now, at no stage during 2016 or 2017 did you speak to the named doctor for safeguarding, is that right, about this issue?
KELLY: About this issue, no, not that I can recall.
DE LA POER: At no stage during 2016 and 2017 did you raise this matter with the hospital Safeguarding Strategy Board, did you?
KELLY: I recall -- I think on one of the agendas
there was a discussion about the cluster of three deaths that happened in 2015 --
DE LA POER: Yes?
KELLY: -- I think it was. It wouldn't be a forum where we would talk about an individual member of staff, so it wasn't discussed at the safeguarding meeting.
DE LA POER: You wouldn't say "there is a major safeguarding concern which is currently being dealt with", you wouldn't even tell the board that that was happening?
KELLY: We -- we would talk about that but as I say, we were not considering it as a safeguarding issue at that time.
DE LA POER: Now, the Local Children's Safeguarding Board, we are just going to bring up three documents here, 7 July, if we bring up INQ0004320, and we are going to go to page -- we are just going to bring that up, please. This is one of your notes, Ms Kelly, it is 7 July. Just take a moment to look at it. If we look a third of the way down on the right-hand side we can see "safeguarding referral" in your handwriting; is that right?
KELLY: That's correct.
DE LA POER: So it does appear that on 7 July 2016 you had
in mind to make a referral to the LADO?
KELLY: I can't recall the actual conversation about that. That was with CCG and specialist commissioning colleagues. I have written it there. I don't know whether it was consideration that we talked about in the meeting, I don't recall myself being given an action to leave that meeting and go and do that referral.
DE LA POER: It's not for them to give you an action; it is for you to decide as safeguarding lead whether you need to make a referral, isn't it?
KELLY: Yes, but some of the people that were in that meeting were also leads for safeguarding as well so I'm not sure what the conversation was entirely.
DE LA POER: Was this you telling NHS England that you were going to make a safeguarding referral?
KELLY: I don't recall.
DE LA POER: Do you agree that's what it looks like?
KELLY: I have written notes, yes, bullet points of things that were discussed in that meeting but the context, I'm not sure of.
DE LA POER: Were you seeking to reassure NHS England that you were responding to this appropriately?
KELLY: We were really clear about the concerns that we had in raised mortality and I have written there "Thematic Review". I honestly can't remember the safeguarding conversation.
DE LA POER: Well, you say that you were really clear. Did you tell NHS England that in the two weeks before the Consultants had come to you and said that they believed that a member of staff may be deliberately harming babies?
KELLY: I don't recall that, no.
DE LA POER: Well, there's no indication whatsoever in your notes that you raised that?
KELLY: No.
DE LA POER: Should you have told NHS England --
KELLY: I think -- sorry.
DE LA POER: Should you have told NHS England in that meeting?
KELLY: Again I have reflected on the information that we were giving to our regulators at the time and I think it was a really fine balance between trying to really understand what the cause for the raised mortality was, versus whether an individual was actually doing deliberate harm. And trying to balance the two was -- was quite tricky at the time in terms of communication.
DE LA POER: Where is the balance in saying: we are giving active consideration to, among other things, whether deliberate harm has been caused, which was the truth?
KELLY: Yes, I -- I could have said that, I can't recall --
DE LA POER: Why didn't you?
KELLY: -- the conversation. I don't know.
DE LA POER: Well, were you trying to withhold that deliberately from --
KELLY: No. I have, I -- as I said in my opening statement there were -- on reflection there were actions that I didn't get right but the actions I did take at that time were done with good intention. I was not withholding anything from anybody at that time.
DE LA POER: Now, making a safeguarding referral is a formal act, isn't it?
KELLY: It is.
DE LA POER: It's not having a chat on the phone, it's filling out a form and formally placing something before the safeguarding board?
KELLY: Yes.
DE LA POER: And you understand that that's what the phrase "safeguarding referral" imports?
KELLY: Yes.
DE LA POER: You didn't make a safeguarding referral, did you, at that time?
KELLY: No.
DE LA POER: You did have a telephone conversation, INQ0106930, page 125. This is I think a continuation of this note in terms of the action points. So we can see here again your note Mortality Reviews, it is a call with Gill Frame and she connected with the Local Children's Safeguarding Board?
KELLY: Yes, she was the chair at the time.
DE LA POER: Yes. So it appears that you had a telephone conversation at some point shortly after this meeting. You didn't make a referral. You appear to have noted "doing the right things: advised of actions being taken", I think. "A review next week, police action may be required." You don't appear to record telling Ms Frame that you were investigating whether or not a member of staff had caused deliberate harm?
KELLY: This meeting was part of a communications plan cascade and I had responsibility for informing a number of -- of external agencies including the Local Children's Safeguarding Board. This was at a time when we were trying to gather as much information as possible to understand what exactly was going on. So at this time, I didn't talk about a member of staff. Again, we were trying to balance what we were
trying to action within the organisation versus thinking of the welfare of an individual and that -- that was difficult because we needed to really get to the bottom of what was going on. So hence the communication plan but making sure that Gill Frame knew what we were doing but I didn't talk about an individual at that meeting because we were still gathering information.
DE LA POER: She didn't know that you were conducting an investigation into whether an individual may have caused deliberate harm?
KELLY: She -- we talked about an individual, we talked about an investigation that we were doing across the board but I didn't talk about an individual, no.
DE LA POER: Because one of the things that you were doing at this time as a hospital was looking at the staffing rota to look to see whether Letby's name was associated with the deaths?
KELLY: That was just a very small part of what we were doing internally, but yes.
DE LA POER: It was part of your investigation.
KELLY: It was part --
DE LA POER: Why not tell Ms Frame that that's what you were doing?
KELLY: I think it was difficult at the time because we needed to be really sure of what was going on and there was still not clarity on that and the rota review was only one -- like I said, one small part of a much bigger piece of work that we were doing to try and understand the rise in mortality.
DE LA POER: Why did you need to be sure? In a safeguarding context you only need possibility before it is a safeguarding issue, don't you?
KELLY: Yes. But at the time nobody, including myself, was looking at it through a safeguarding lens.
DE LA POER: So why were you telling the Safeguarding Board anything if this wasn't safeguarding?
KELLY: Because we were making sure that all our external partners, which were part of that communications plan, understood that we were looking at a rise in mortality and that coincided with the downgrading of the unit and a number of other actions that we took. So we all had a responsibility to make sure that all stakeholders knew what we were doing.
DE LA POER: Did you deliberately hold that from --
KELLY: No.
DE LA POER: -- Ms Frame?
KELLY: No.
DE LA POER: Can you suggest any other reason why you
didn't tell her?
KELLY: Because we were gathering information at the time and I didn't think it was appropriate to share that when we didn't have a full picture.
DE LA POER: You have mentioned some harm to the individual. Why would there have been any consequence to Letby if you had told the Safeguarding Board that you were investigating a concern that an individual may be implicated?
KELLY: Can you repeat that, sorry?
DE LA POER: Yes. You have suggested in an earlier answer that one of the balances you were doing was -- operating at that time was to protect the member of staff from any harm?
KELLY: It was more around her welfare really. So just making sure that we were trying to get the balance between understanding what was going on in mortality versus the care for our staff and the duty of care to our staff.
DE LA POER: What has the member of staff's welfare got to do with you truthfully telling the safeguarding board that you are investigating whether an individual may be responsible for some of the deaths?
KELLY: It just didn't feel the right time to do that because we just needed to get a fuller picture.
DE LA POER: Well, you have mentioned it. Can we just be clear: is welfare any part of your thinking as to why you did not tell the safeguarding board what you were in fact doing?
KELLY: I think we were just trying to balance the two.
DE LA POER: So does it follow from that, "yes"?
KELLY: Yes.
DE LA POER: Just consider that for a moment. How does it impact in any way on the welfare of that person if you truthfully tell the safeguarding board that you are -- one of the things you are investigating is whether an individual is responsible?
KELLY: It probably doesn't have any impact on that individual but I would just like to re-emphasise there was no deliberate withholding of information at that time. We were just trying to get the bigger picture.
DE LA POER: You did submit a referral to the Local Children's Safeguarding Board on 29 March 2018, didn't you?
KELLY: Yes.
DE LA POER: You did so after you had been contacted by the LADO; is that right?
KELLY: Yes, we had a conversation.
DE LA POER: Yes. The LADO have learned of the police
investigation and phoned you up to ask why has there been no safeguarding referral?
KELLY: Yes.
DE LA POER: So that was not something that you thought to do yourself, but you had to be told that it was necessary; is that right?
KELLY: I think at the time, as I mentioned earlier, I wasn't looking at this through a safeguarding lens and LADO referrals usually in practice come alongside a HR investigation and the two are done together, and because of the way that concerns were raised, an HR investigation never actually took place. So it -- it didn't -- I didn't think at the time that a LADO referral was required to be done. I do accept, and there is an email to evidence that, that it was much, much later than it should have been.
DE LA POER: INQ0013064. This is the referral that you submitted. Now, firstly, is it extremely important to provide full and accurate information in a referral to the LADO?
KELLY: Yes.
DE LA POER: Is it capable, the quality of the information you provide, capable of determining whether the LADO says: well, this is something that I am going to formally accept and investigate, or whether they say: this doesn't seem to me to be quite appropriate?
KELLY: Yes, they would do that.
DE LA POER: Yes. So extremely important to be full and accurate?
KELLY: Yes.
DE LA POER: Let's look at page --
KELLY: I do recall -- sorry, I do recall having a conversation I think before I submitted this with the lead at the local authority.
DE LA POER: Well, let's have a look and see what you put in, reminding ourselves that this is some nine months or so after the police have begun their investigation. Page 2, please. You start the special chronology at 27 June, concerns raised formally by the paediatricians. In fact, concerns about Letby had been raised with you in March of 2016, hadn't they?
KELLY: We had the Thematic Review, there is iterations of that from February through to May but no mention of deliberate harm was in that document.
DE LA POER: Were concerns --
KELLY: So I took my chronology from that weekend in June.
DE LA POER: Were concerns about Lucy Letby first raised
with you in March?
KELLY: Yes.
DE LA POER: So why did you not say that? Why did you give a later date?
KELLY: I just took it in terms of the chronology for me in terms of deliberate harm, that is where my chronology started.
DE LA POER: Now, what you go on to say is: monitoring undertaken of the unit, 27th -- that's reference to 27 June, it is the second line. In fact, the monitoring of the unit all took place before 27 June, didn't it? That's the period from 11 May through to the end of June?
KELLY: I think that's referring to the actual monitoring that we were then taking as an Executive Team of how the unit was being operated at that time, not monitoring from the conversation that we had in May.
DE LA POER: "Individual named at the time Lucy Letby as allegedly being on duty a number of times when incidents had taken place." I mean "allegedly". I mean, she was on duty, wasn't she; there wasn't any doubt about that?
KELLY: She was on duty, yes.
DE LA POER: So why have you used the word "allegedly"?
KELLY: I can't -- I can't comment on why I put that
in.
DE LA POER: "No evidence to suggest this was a contributing factor to increased mortality". Now, I am not going to go through the list again of all of the expert opinions that you had received but you did have evidence, didn't you, in June of 2016?
KELLY: Only on the say-so of paediatricians. We had no actual evidence as in nobody could see her do anything. There was broadbrush statements. There was no evidence provided to us at that time.
DE LA POER: That is evidence, isn't it? If a person exercising their professional judgment says "this death should not have happened" and you have no basis whatsoever to suggest that they are wrong about that because they are the expert on the subject, that's evidence, isn't it?
KELLY: But when you look at the clinical reviews that were undertaken and if you look at the Thematic Review there were very senior clinicians as part of that Review Team. There were care concerns as well. So there was a much broader picture and it wasn't very clear at the time.
DE LA POER: But you are focusing here on whether there is evidence. The plain fact of it was that you did have evidence, you just didn't treat it in that way; is that
fair?
KELLY: I wouldn't agree with that.
DE LA POER: So you don't think that the expert opinion offered in those four areas amounts to evidence?
KELLY: I think we needed to look at everything in the round in terms of the clinical outcomes as well as looking at one individual.
DE LA POER: But the fact that there are other things as well doesn't answer the point, does it? Was there evidence and what I am inviting you to consider is whether the expert opinion of the paediatricians was evidence?
KELLY: You could, you could say that. But when you have babies that have had postmortems and various reviews that were undertaken in very close detail that gave other options of the contributing factors to their death, then I -- I didn't take the hearsay of Consultants as evidence at that time.
DE LA POER: It may not be proof but it is information which suggests that they may be telling the truth, isn't it?
KELLY: Information to suggest that, yes.
DE LA POER: Yes. And that's just another name for evidence, isn't it?
KELLY: At the time I didn't take that as evidence.
DE LA POER: Now, you had by March 2018 seen the document that the Consultants had prepared for the police, hadn't you?
KELLY: No, I never saw that.
DE LA POER: You never saw that?
KELLY: No.
DE LA POER: Were you aware that they had sent one?
KELLY: Yes, I was, but it was never shared as far as mine were to the Executive Team.
DE LA POER: So as you were preparing this referral, did it occur to you to think to say: well, I wonder if I should go and have a look at that document that the Consultants have prepared so that I can put forward the concerns that they have in the most persuasive way that I can?
KELLY: That -- at the time, that would have been a good idea. But I didn't do that.
DE LA POER: Well, is that because at this time you had a feeling of hostility towards the Consultants and that you did not think the police investigation was going anywhere?
KELLY: That's not true.
DE LA POER: Because this is a safeguarding referral, it's important, isn't it, to state their concerns at their highest?
KELLY: Yes.
DE LA POER: This isn't determinative of whether there are any consequences to anyone; it's just important that everybody understands the worst case scenario?
KELLY: Yes.
DE LA POER: Let's have a look and see what you say about the College review --
KELLY: Could I --
DE LA POER: The 29 June: "External review commissioned. No definitive conclusions could be drawn from the Royal College review." Do you think that that was a misleading statement for you to make?
KELLY: I think the external review came out with a number of different recommendations that were very wide, varying at the time. I don't -- I don't see that as being misleading.
DE LA POER: Well, we will consider it from this perspective: you were told in terms by the Royal College at the end of their review that they had not investigated whether Letby had done it; isn't that correct?
KELLY: I can't recall that but I think that might have been said, yes.
DE LA POER: So telling the safeguarders that a report that
did not investigate Letby was inconclusive is misleading, isn't it?
KELLY: I think it's just language that was used by me in that -- in that referral. It wasn't miss, I didn't feel at the time it was misleading.
DE LA POER: Well, it might be read by a reader, do you agree, as suggesting, well, somebody has looked into it and they couldn't find anything?
KELLY: I think when the College review was undertaken they chose to interview Letby.
DE LA POER: I am here talking about what the reader of this --
KELLY: Oh, the reader of this, sorry.
DE LA POER: The reader of this, that what you said may be read as suggesting that the Royal College had investigated it and had not reached any definitive conclusion on the point?
KELLY: You -- you could read that from there but I would have assumed if it wasn't clear, the LADO could have called me and to clarify.
DE LA POER: Well, is the problem --
KELLY: I suppose I have just done that in a bullet point list, it may have needed more detail.
DE LA POER: The problem is that it may be perfectly clear to what -- to the LADO what you are saying it is exactly
what I have suggested that you have commissioned the Royal College to investigate the concerns about Letby, that they had done so and their conclusions were not conclusive?
KELLY: You could deduce that from that, yes, but maybe I should have put more detail into that --
DE LA POER: Well --
KELLY: -- section.
DE LA POER: In fact, the Royal College recommended that Dr Hawdon, as it turned out to be, conduct a Casenote Review?
KELLY: Yes.
DE LA POER: By this stage you knew that Dr Hawdon had recommended a local forensic review in relation to four babies?
KELLY: Yes.
DE LA POER: Because she was concerned about each of those four babies?
KELLY: That a further review was required, yes.
DE LA POER: Yes, because she was concerned about those four babies?
KELLY: Yes.
DE LA POER: You don't mention that here?
KELLY: No. And -- and looking at that referral it -- it obviously did need more detail.
DE LA POER: You don't say anything about the fact that following Dr Hawdon, the network intervened through Dr Subhedar and he said he actually thought there were seven babies?
KELLY: Yes, he did have further comments to make.
DE LA POER: The Consultants then built on that and said they thought there were eight babies. All of that fell out of the Royal College review, didn't it?
KELLY: Yes. But there were lots of other elements to that review.
DE LA POER: Now, if we go over the page, we will see that you say that she hasn't undertaken any clinical duties or be permitted to go on to the neonatal unit. Presumably that's to reassure the safeguarders that nobody has been exposed to risk of harm?
KELLY: Yes.
DE LA POER: Yes. You don't say anything about the fact that she's been going to Alder Hey --
KELLY: I was not aware of that.
DE LA POER: -- by March 2018?
KELLY: There was something that was brought to my attention about Alder Hey and myself and Sue Hodkinson the HR Director found out about it and it was stopped.
DE LA POER: That was in the summer of 2017.
KELLY: I don't recall the date.
DE LA POER: Well, you can take it from me that that was before March 2018.
KELLY: Okay.
DE LA POER: If you just think about the chronology. I am sure you will see that that must be right?
KELLY: (Nods)
DE LA POER: Was that something that you should have told the safeguarding panel about so that they could be aware of it and potentially investigate it?
KELLY: If that chronology is correct then there would have been perhaps more detail required on that, yes.
DE LA POER: I would just like you to respond to a characterisation of this document, for your comment. Do you think that this is a misleading and highly defensive document?
KELLY: I would not say it's defensive or misleading. I think it lacked detail and on reflection I should have put more detail in there. I did have a phone call with the LADO at the same time that this was going in.
DE LA POER: This is the one time that in this whole chronology we have you acting expressly in your role as the Executive with lead responsibility for safeguarding, isn't it?
KELLY: Yes.
DE LA POER: Do you think on that occasion you discharged that obligation adequately?
KELLY: Knowing what we know now compared to what we knew then, I don't think I did fulfil that role. However, as I mentioned before myself and others did not look at this as a safeguarding issue. It was about clinical outcomes, a raise in mortality and concerns raised by clinicians about an individual and we needed to get more information.
DE LA POER: I am going to move to the second part of my questioning which is Speak Out Safely and Freedom to Speak Up. In addition to being the Executive Lead for Safeguarding, you were a designated officer for Speak Out Safely; is that right?
KELLY: I was one of a few people, yes.
DE LA POER: INQ0014171. As that's coming up, can you confirm that you sat on the Speak Out Safely committee?
KELLY: I did.
DE LA POER: So you were one of seven people identified at the hospital, four members of staff as being someone to speak to if they had concerns?
KELLY: That's correct.
DE LA POER: And your role as a designated officer included ensuring that there were no recriminations for good faith reports of matters of concern; is that right?
KELLY: That's correct.
DE LA POER: If we look at page 2, we can see that it deals at the second paragraph under the heading "Raising Concerns": "By implication this policy is concerned with the possibility that a member or members of staff are not delivering the standard of patient care expected of them." So again this is about people raising the possibility that something might not be right?
KELLY: Yes.
DE LA POER: We can see the language used just to take an example, "all concerns", so we are talking here about people saying "I have a concern", that is the appropriate language to use in this context; is that right?
KELLY: Yes.
DE LA POER: Now, if we look at page 9, we can see here: "Consideration of referral to the Local Authority Designated Officer ... If there is a concern raised or an allegation made about a person who works with children, whether a professional staff member, foster carer or volunteer that they may have: behaved in a way that has harmed a child of may have harmed a child; possibly committed a criminal offence against or related to a child; or behaved towards a child or children in the way it indicates she/he is unsuitable to work with children, then the process outlined below should be followed." We can see that that process includes liaison with the LADO, do you see?
KELLY: Yes.
DE LA POER: Now, that is exactly what the Consultants said to you in late June of 2016, wasn't it? That they were concerned that she may have behaved in a way that harmed a child, possibly committed a criminal offence, may be unsuitable to work with children?
KELLY: Yes.
DE LA POER: And that should have triggered an immediate contact with the LADO, shouldn't it?
KELLY: Yes.
DE LA POER: You didn't do that. Why did you not follow this policy?
KELLY: I -- I don't know why I didn't follow this policy. It -- it was under the safeguarding banner for me and I have explained why I didn't consider it to be safeguarding at the time.
DE LA POER: But this is a separate responsibility that you have for safeguarding?
KELLY: But this was part of -- I was one of many
others in the organisation that held this role. We did talk about the neonatal unit concerns at meetings. I don't know why the LADO element was never discussed.
DE LA POER: Was that because you just weren't taking these concerns seriously?
KELLY: That's not true. We absolutely were taking the concerns seriously.
DE LA POER: Was it -- was it because you thought you would lose control if an external body was notified?
KELLY: No.
DE LA POER: So you have mentioned that it was discussed at meetings. We are going to just whip through some of them now. INQ0015537, page 4. Bottom right-hand corner, third bullet from the bottom: "Consider SOS process re: meeting." Do you see that?
KELLY: Yes.
DE LA POER: Speak Out Safely process. So it would appear that consideration was being given at a meeting which I think is recorded as having you, Ian Harvey and Eirian Powell at; is that right?
KELLY: Yes, notes at the top.
DE LA POER: Neither Ian Harvey nor Eirian Powell, were they Speak Out Safely designated officers?
KELLY: No.
DE LA POER: So you were the one who had that knowledge and information in this meeting?
KELLY: Yes.
DE LA POER: This was an action for you to go and look at the Speak Out Safely process?
KELLY: Yes, I think we did talk about consideration of that.
DE LA POER: Well, you have talked about it but this is an action, isn't it --
KELLY: Yes.
DE LA POER: -- for you to go and have a look at the policy?
KELLY: It doesn't actually say "policy" there but I think it was about more of a conversation with the other designated leads for Speak Out Safely at the time.
DE LA POER: If you had gone away and given serious thought to the Speak Out Safely process, wouldn't that have led you to realising that the LADO needs to be contacted?
KELLY: I think at the time Speak Out Safely, the processes around that weren't fully embedded in the organisation. But I do recognise that that note there is about consideration of that process at that time --
DE LA POER: It --
KELLY: -- and that the LADO was never a consideration
in those meetings.
DE LA POER: Is there any note that you have seen between there and September 2016, so in other words the next two or three months, where you actually sat down and considered the Speak Out Safely process?
KELLY: We had Speak Out Safely meetings with various members and I do recall that neonatal unit was discussed. I can't recall -- do you have the meeting note?
DE LA POER: We are going to look at it.
KELLY: Okay.
DE LA POER: You can take it from me not at any point during 2016?
KELLY: 16, okay.
DE LA POER: So this is a note for yourself to sit down and work something out. You are, if I may say so, a good maker of notes, you write reflections for yourself and so on, don't you?
KELLY: (Nods)
DE LA POER: Is that just something that got forgotten?
KELLY: Possibly. Yes. There was lots going on at that time. You can see by those notes there were lots of things to consider.
DE LA POER: Well, that's an important one, isn't it, in terms of priorities, do you agree?
KELLY: Yes, yes.
DE LA POER: You are the only person in that meeting who's going to be able to do that, aren't you, as a designated officer?
KELLY: Yes, in that role, yes.
DE LA POER: Yes. So let's come forward to 8 September, INQ0015537, we are going to go to page 19. So this is an Execs' meeting on 8 September and we can see again, bottom right-hand corner, penultimate bullet: "SOS process IH [Ian Harvey] to discuss with Stephen Brearey as he initially raised concerns would be consistent of other cases." So it appears that we are no further forward other than an agreement in September that Mr Harvey is going to speak to Dr Brearey about it. Now, why does it need a conversation? If a concern has been raised that fits within the policy, it should be treated within the policy, shouldn't it?
KELLY: Yes.
DE LA POER: So it doesn't require the consent or permission of the person raising the concern, no conversation is necessary, is it?
KELLY: I think the conversation at that time was to gain clarity from the doctors of their actual concerns.
Most of the -- as I say, the Speak Out Safely process wasn't fully embedded, it was in a transition period into Freedom to Speak Up processes. Previous issues would have been raised in writing in an email, in a phone call, but recognised that because there were so many actions being undertaken at that time, formalising the doctors' concerns under Speak Out Safely didn't happen.
DE LA POER: Well, in the end of June they had said "we are worried that she may be murdering babies", that was the import. They may not have used the word "murder" but deliberate harm to babies who are dead. At that moment that should immediately have been logged, shouldn't it, under the Speak Out Safely policy?
KELLY: On reflection, looking back, yes, in practice.
DE LA POER: Well, do you need any of the hindsight? At the time you had enough information to know to do that didn't you?
KELLY: We did have information to enact the policy at the time. However, I think we were a little bit bewildered at some of the things that were being said and it -- it took a while to kind of get that straight in our minds really to get actions under way and there was so much going on in a very short space of time. But I accept that formalising those concerns
through the Speak Out Safely process didn't happen in a timely way.
DE LA POER: It's extremely important for the protection of the individual for it to be managed properly, isn't it?
KELLY: Yes.
DE LA POER: It gives them reassurance that they have the protections of the policy; that's right, isn't it?
KELLY: Yes.
DE LA POER: It means that they have the practical barrier of being able to say: you can't mistreat me or put pressure on me as a result of me having raised this in good faith?
KELLY: That's correct.
DE LA POER: That is a key part of, it isn't it?
KELLY: Yes.
DE LA POER: It empowers people?
KELLY: Yes.
DE LA POER: It ensures that people don't just get silenced, doesn't it?
KELLY: Yes.
DE LA POER: 21 September, INQ0002976. So if we go to the bottom, the next page down we will see that Ms Appleton-Cairns at the top of this: "As part of this we were going to ask Ian to speak to Stephen Brearey and ask him to formally voice his
concerns under Speak Out Safely." So that is what she is saying. In fact, no formality is required, is it, under the policy; people just have to raise concerns?
KELLY: Yes.
DE LA POER: So if we then go to the top of the page we will see your and Sue Hodkinson's response. "I will check with Ian" says Ms Hodkinson and you say you are unsure. So several months have passed, you are being asked a direct question about it. Still unsure.
KELLY: Yes.
DE LA POER: What was the problem of just writing it down on the list and having a meeting about it?
KELLY: I -- I can't recall why that didn't happen. It -- it was discussed at future meetings. I can't -- I can't recall why that didn't happen.
DE LA POER: So if we then come to the grievance investigation report, and I have the reference for the September meeting, if you would like to have a look at it which took place two days before that; would that be help to you?
KELLY: Yes please.
DE LA POER: INQ0098689. Bearing in mind this email rather tends to suggest it hasn't been talked about, because two days later you are still not certain what's going on but we can bring it up. So we just move through this and we are really looking for what isn't there but that's the first page, that is the second page, third page, fourth page. Now, I am sure everyone's got the reference and people can go away and check it and make sure I haven't missed anything, but perhaps you will take it from me for now that it's just not mentioned in that meeting?
KELLY: No, I do see that I wasn't at that meeting either.
DE LA POER: Even so, it hasn't even been put on the agenda. So we can take that down. So let's move forward to 22 November, staying with Speak Out Safely. INQ0002879, page 222. What you are going to see now is the investigation report from Dr Green. This is the final version of that report and it has this addition, among others, after it had been sent to Lucy Sementa and then sent back, so that is the evidence we have. So this is something that wasn't in the first draft, it is in the second and final draft. "In response to how the Trust have dealt with this I conclude that the Trust have considered the concerns of the Consultants in line with both the disciplinary
and Speak Out Safely policies." That is a finding of fact that Dr Green makes. In fact, I am sure we won't need to go to it, you hadn't talked to him about the Speak Out Safely policy?
KELLY: No, not that I recall.
DE LA POER: If you had, you would have said to him: we haven't dealt with it under the Speak Out Safely policy, that is what you would have said to him?
KELLY: I -- I am unsure as to what Sue Hodkinson would have said to him because she also took a key part in that process.
DE LA POER: You knew for a fact it hadn't been dealt with under the Speak Out Safely policy, didn't you?
KELLY: If the timings of those meetings -- are you referring to the meeting we have just looked through?
DE LA POER: Yes, it is not registered on the spreadsheet that was kept as a running spreadsheet, it does not appear in the minutes of any meeting and we can see in September there was a discussion about whether, how it was going to be treated so that --
KELLY: Yes, I -- I don't, I don't know why Dr Green wrote that if he was not aware of the process.
DE LA POER: Well, presumably you read it at some point after the grievance process?
KELLY: Who, myself?
DE LA POER: Yes, Dr Green's report.
KELLY: It was quite some time after that we received the report from what I can recollect.
DE LA POER: Well, did you ever correct that fact?
KELLY: No.
DE LA POER: Well, should you have corrected it bearing in mind that it is false?
KELLY: At the time yes, but I don't recall seeing the report until much, much later on.
DE LA POER: I mean, it's false in a way that makes the Executives look better than in fact is true, isn't it?
KELLY: Can you rephrase that sorry?
DE LA POER: I am so sorry, could you just repeat that answer?
KELLY: I said can you repeat your question, sorry.
DE LA POER: I beg your pardon, that was entirely my fault. May I apologise?
KELLY: It's okay.
DE LA POER: It was false in a way that made the Executives look better than was in fact true; do you agree?
KELLY: No, no, I don't agree.
DE LA POER: It makes it look like the policy has been applied as it should have been when in fact the policy wasn't applied?
KELLY: I don't understand why Dr Green put that in.
He was a very credible manager, so I can't understand why he would have put something in there if it hadn't actually happened.
DE LA POER: So my question, wherever it's come from, is it is false in a way that makes the Executives look better than was in fact the case; do you agree?
KELLY: You could say that, but that was not the intention.
DE LA POER: INQ0003158, page 3. This is the grievance determination. Presumably that was something you saw very shortly after it was published?
KELLY: I can't remember the actual time, but I do recall seeing it. Yes.
DE LA POER: Second paragraph: "In response to how the Trust have dealt with this I conclude that the Trust have considered the concerns the Consultants in line with both the disciplinary and Speak Out Safely policies." Practically a copy and paste, I think one or two words are slightly reordered. So this is what Annette Weatherley is saying in her formal resolution of the grievance, it is the same false statement. Did you ever correct it?
KELLY: Me personally, no. But I don't know what conversations Annette Weatherley and Chris Green will have had and I don't know where that's come from in terms of it not being followed.
DE LA POER: You are in a position to know it's false because you are on the committee, you haven't discussed it and in September you weren't even sure what was being done with it. Wherever it's come from, you must know at that point that it's not true; isn't that right?
KELLY: As I say, I don't recall even querying that at the time.
DE LA POER: No, but at the time you would have known it was untrue; is that right?
KELLY: In terms of timescales chronology then yes, because we hadn't had a conversation at the Speak Out Safely meeting but I still don't understand why that was actually put in there when it wasn't correct.
DE LA POER: Then we come to the meeting on 26 January with the paediatricians which I think you attended; is that right?
KELLY: I think I did, yes.
DE LA POER: INQ0003523, page 2. Mr Chambers telling the Consultants, at the top, "stated the Speak Out Safely process has been professionally managed". That was a false statement, was it not, at the time it was made?
KELLY: I think because it had been talked about so
many times, I think there was an impression that it was being dealt with under the Speak Out Safely policy. But what we weren't very good at doing was making sure that it was discussed at the meetings and minuted and actions taken. It -- it wasn't something that we dismissed, it just didn't seem to formalise. So -- and I think that statement from Mr Chambers, he probably thought that it was being dealt with.
DE LA POER: I am sure --
KELLY: But it wasn't -- it wasn't to mislead anybody.
DE LA POER: If he read Annette Weatherley's report, that's where he would have got it from. But the difference is Mr Chambers didn't sit on the committee; you did?
KELLY: No.
DE LA POER: So you will have known that that wasn't true, wouldn't you?
KELLY: I didn't challenge Mr Chambers at that meeting about that comment. But other members of the Executive Team were also there as well who were also Speak Out Safely leads.
DE LA POER: Let's focus upon you. You will have known on 26 January that that was not a true statement, do you agree?
KELLY: In terms of what we didn't talk about at the
meeting, yes.
DE LA POER: So knowing at the time that it was not a true statement, should you have challenged it?
KELLY: At that meeting, yes. But I think we were all under the impression it was being dealt with but informally.
DE LA POER: But that is not what he is saying. He is saying it is professionally managed. He is praising how it's been managed, isn't he?
KELLY: I think that is the way he was articulating it at the time, yes.
DE LA POER: You knew that that wasn't true, didn't you?
KELLY: I at the time probably didn't take that on board in terms of the terminology that was used.
DE LA POER: Well --
KELLY: There was a lot discussed at that meeting.
DE LA POER: Let's move to where it was first discussed INQ0098375, page 3. This is a meeting on 20 February 2017. We can see here that you say: "We need to consider whether the concerns raised by the paediatricians in the NNU need to be formally logged." So going into that meeting, you must have known that there was no formal record of their concerns as far as Speak Out Safely; do you agree?
KELLY: I do agree. I think we talked about it a lot but actually didn't pin it down to actually documenting it.
DE LA POER: Well, this is the first meeting, Speak Out Safely, where it is being talked about?
KELLY: Yes.
DE LA POER: "After discussion it was agreed that unless we receive any further comments we should monitor the situation through normal routes; it is discussed at QSPEC, and if anything arises it can be brought back here." So that is the committee deciding not to formally record the concerns of the Consultants; is that right?
KELLY: I think this is really difficult because there were so many things going on that it didn't kind of fit into a -- a box, a particular one policy. It kind of span over a number of different policies. So I think the feeling was at the time that there were so many other actions being taken it -- it probably didn't need to be discussed at this meeting as well as everywhere else and in reflection I -- I think we should have just put it on the list as per policy.
DE LA POER: Because that would then have given an auditable protection --
KELLY: Yes.
DE LA POER: -- for the Consultants, it would have been able for them to say when under pressure: my concern is being dealt with formally, you need to make sure there are no recriminations?
KELLY: To formalise that process at that time would have been helpful, yes.
DE LA POER: It's extremely important, isn't it?
KELLY: Yes.
DE LA POER: Why was the committee depriving the Consultants of that protection?
KELLY: There was no intention at that time to be targeting the paediatricians for not logging that formally. I think it just got lost in the mêlée of all the actions that were being taken at the time. It certainly wasn't done with any poor intention or malice. It was that there was so much going on and there were lots of discussions with the paediatricians at that time anyway.
DE LA POER: One of the discussions shortly before the meeting, before this meeting, was 26 January where they were told they were going to be expected to apologise?
KELLY: That was an outcome of the grievance, I believe.
DE LA POER: Yes. So there was pressure on them to do that, wasn't there?
KELLY: There wasn't pressure. There was just a recommendation that came out of the grievance that that was one of the actions that was required based on an independent chair.
DE LA POER: When knowing whether to respond to that, wasn't it important that they had all been notified that the concerns they had raised were under the Speak Out Safely?
KELLY: It -- it would have been supportive of them if it had been formalised, yes.
DE LA POER: Presumably it would have shown that the formal committee with responsibility for that was going to protect them if necessary?
KELLY: They would have been treated like any other member of staff in raising concerns and I am unsure as to why it never got formally registered.
DE LA POER: Well, let's see. Just eight or so days after -- we perhaps don't need to bring it up -- do you recall the letter written by Ian Harvey to Dr Jayaram and Dr Brearey telling them to engage in mediation as a potential way to avoid a referral to the GMC?
KELLY: Do you have that on the screen, sorry?
DE LA POER: INQ0003119. Do we need to go down a page? The final large paragraph: "I think that this gesture would go a long way to
protect you from a possible referral to the GMC from other parties ... "
KELLY: I was not copied into that email. I can't really comment on that, so I'm not sure as to why that's been written.
DE LA POER: Well --
KELLY: Certainly my understanding is that there was lots of communications between the Executives, Ian Harvey and the doctors. I'm unsure as to the context of a GMC referral.
DE LA POER: Isn't that exactly the sort of situation where a Consultant needs to know that their concerns have been managed formally and have been recorded as such?
KELLY: For -- for anybody that -- that raises concerns everybody would be treated the same and yes, to formalise that process would have been helpful.
DE LA POER: Absolutely, because --
KELLY: But I am unsure as to the context of that email because I wasn't copied in.
DE LA POER: INQ0003344, this is a meeting on 16 March. Again we are just looking at what's happening to the Consultants around the time that the Speak Out Safely committee decided not to record their concerns. Now, you are recorded as being present at the top. Do you see your initials?
KELLY: Yes.
DE LA POER: Go to page 3. And we are looking for a reference to Speak Out -- forgive me, it says: "Sue meeting Ravi."
KELLY: I can't see any reference on there.
DE LA POER: You can't see.
LADY JUSTICE THIRLWALL: What page are we on?
MR DE LA POER: On page 3. We can see that there is a reference to from Tony Chambers in the middle: "Part of me says ring police and GMC." Do you see that that right in the centre?
KELLY: Okay, yes.
DE LA POER: So again there seems to be, just focusing on that for a moment, that what Tony Chambers is raising at this meeting in front of you is the possibility of contacting the GMC.
KELLY: What -- sorry, what date was this meeting again?
DE LA POER: 16 March 2017.
KELLY: I -- I don't know why that was said. I do know from a GMC reference perspective it was something that Letby's parents had referred to in meetings previously.
DE LA POER: So this is the time when all that pressure is coming down on the Consultants about possible referral to their regulator. I'd just like you to reflect on whether there was any connection between that and the decision of the committee that you sat on not to formally record their concerns?
KELLY: I -- I don't understand the context of the GMC referral piece in there. I don't know whether that was referring to Letby's parents because I know they were very keen that they may go down that route. I am not making any connection with that and the lack of documentation on Speak Out Safely process, I think it was -- there were so many actions being undertaken at that time I just think it fell by the wayside in terms of formalising their concerns. It was certainly nothing to do with causing them detriment or -- or additional pressure at that time. There was lots of discussion and lots of communication with clinicians and we were listening to what they were saying.
DE LA POER: So we then come forward to 24 April. INQ0098434 and these, you will recall, Ms Kelly, is where the committee gets itself into a disagreement about its own minutes and so if we go over the page under "Review of Minutes": "Members did not recall agreeing not to formally log the concerns raised by the paediatricians about
NNU." Somebody is querying how it could be logged as nothing had been received in writing and also been logged elsewhere internal/external. It goes on to say: "[Mr Harvey] had had a conversation with one of the Consultants who had requested it to be logged." So can you just help us with -- in fact I should probably show you the next set of minutes because -- INQ0098376, which is the minutes for the same meeting which does not have that sentence in. Do you see that it goes straight to Ms Cooper's: "How could it be logged as nothing?" Now, the --
KELLY: I don't recall, I don't recall.
DE LA POER: Well, the explanation for that is that we see on the meeting on 6 June INQ0098458 and we can see that there is a discussion, the reviews of minutes that Mr Cross has picked up, where it states: "Members did not recall agreeing not to formally log the concerns". That appears to hold the explanation for why the committee then went back and amended its own minutes from the previous meeting?
KELLY: (Nods)
DE LA POER: Of course at this stage 6 June the police were now involved. So putting the question at its broadest: is this the committee trying to rewrite the past now it knows the police is involved?
KELLY: No, not at all. I think there was some confusion as to logging it as -- as those notes articulate. And I think it was a genuine oversight that we didn't remember what we had agreed and the notes had been amended but there was nothing to say that anything suspicious was done around those notes. As I say, there was, there was lots of discussions with, open conversations with clinicians around listening to their concerns. I think there was just some confusion in that group.
DE LA POER: Well, just for the record, we don't need to go back to it, but at that April meeting it was agreed for the first time to record the Consultants' concerns, we don't need to look at it, but by the time of this meeting that was then logged. I would like to conclude my questioning about Speak Out Safely by giving you an opportunity to reflect on some of the evidence that the Inquiry has received. You deal with it in part in your witness statement because you comment upon Dr Isaac's letter to you, which
was written on 7 February of 2017 but never sent and everybody agrees that you never --
KELLY: No, I didn't receive that.
DE LA POER: -- received that and she drafted that letter to you as the Executive Lead for Safeguarding and she didn't send it. Now, do you agree that of all the people in a Trust, people with safeguarding concerns must feel absolutely free to raise them?
KELLY: Yes.
DE LA POER: And that a safeguarder, somebody with a formal safeguarding role, must be able to feel utterly unconstrained to speak about concerns; do you agree?
KELLY: Yes.
DE LA POER: So this is perhaps a moment at which safeguarding and Speak Out Safely come together?
KELLY: (Nods)
DE LA POER: I asked Dr Isaac why she didn't send that letter and she said this: "Because I was waiting for the neonatal report, I was waiting. There was a culture of fear as well." So what Dr Isaac appears to have been saying there was -- one of the reason or part of the reason why she did not send you that letter raising a safeguard concern was because she was afraid. I would just like you to reflect, please, upon that evidence and provide us with your comment bearing in mind that you were the lead for safeguarding and you were also a champion of Speak Out Safely and yet it would appear certainly on Dr Isaac's evidence she did not feel she could speak to you?
KELLY: So I heard that evidence and I was really upset and disappointed by that response because she was a safeguarding lead that came to my safeguarding meetings, who contributed to a number of pieces of work. I had a very open-door policy as an Executive and a safeguarding lead. Nobody else has ever come to me to say they feared coming to raise any concerns with me. I wish she had come to see me face to face. I would not -- I would have thought it highly unusual for her to come -- to send a letter to me when she was part of the safeguarding team who were based working closely with the clinicians. So I really don't understand how she got that impression. And it was quite upsetting really because I thought we had worked really closely together as a safeguarding team and to suddenly say that she felt afraid of coming to speak to me I thought was very out of the blue; very, very sad to hear.
DE LA POER: This, as I made clear, in my questions, is an opportunity for your reflection, so I would just like you to consider the possibility that by February 2017, you had somehow created the impression that you were someone to be feared and that there could be adverse consequences to people if they spoke out to you. So I would just like you to reflect upon that and comment upon it.
KELLY: I am just very upset by that because that is not in my nature, to provide that impression to staff of all levels whether they are a Consultant, whether they are a healthcare assistant, and throughout my career, I have been held up to be a credible leader, to listen, to support, to take action. So to suggest that of me, I think I would disagree, and it's not something that is in me as a nurse, as a senior leader, as an Executive and for somebody to gain that impression of me is very upsetting.
DE LA POER: Do you think there's any possibility that things had become so acrimonious, doctors v nurses with you backing the nurses that a culture of fear had developed?
KELLY: I wouldn't say a culture of fear. I think there were challenges with the relationships. I think the trust had broken down and I think on reflection we
could have done more to support the clinicians certainly in a pastoral perspective and to understand their perspective in a bit more detail. But it was a really challenging time. We were dealing with multiple reviews, understanding what on earth was going on, listening to both sides. I can -- I can reassure the Inquiry I did not take sides. We listened to everybody and took and -- and listened to those individuals and took their perspectives. So it was -- it was trying to look at everything in the round and I would not say it was a culture of fear at all. There was lots of engagement. It was just tense at times which is why we gained advice from external agencies and the police eventually.
MR DE LA POER: My Lady, would that be a convenient moment?
LADY JUSTICE THIRLWALL: Yes, thank you. We will take a 15-minute break and start again at 10 to 12.
(11.34 am)
(A short break)
(11.50 am)
LADY JUSTICE THIRLWALL: Yes, Mr De La Poer.
MR DE LA POER: Ms Kelly, topic 3, the Care Quality Commission. On 15 February of 2016, you were sent the draft of
the Thematic Review; is that correct?
KELLY: That's correct.
DE LA POER: That draft had been requested by Mr Harvey from Dr Brearey?
KELLY: Yes.
DE LA POER: You could see that from the email chain?
KELLY: Yes.
DE LA POER: That request was expressed to be by reference to the CQC visit that was to happen in the coming days of that week; is that correct?
KELLY: Yes.
DE LA POER: Did you read the Thematic Review on 15 February?
KELLY: I can't be certain I read it actually on the 15th, no.
DE LA POER: Did you read it in preparation for your meeting with the CQC on the 17th?
KELLY: I don't recall, no.
DE LA POER: Bearing in mind it had been requested by Mr Harvey for that purpose, and forwarded on to you, should you have read it in preparation for your meeting with the CQC?
KELLY: My understanding at the time was that report was a draft report that Mr Harvey had requested from Dr Brearey and I think from the content of the email at the time, it wasn't a completed report. I think Dr Brearey had mentioned that there was further work to be done in feedback from others so we took that as a draft report.
DE LA POER: Should you have mentioned it to the CQC?
KELLY: I don't think so at that time because we had only just received it, we hadn't a chance to digest it and in actual fact it wasn't the full report.
DE LA POER: But the one thing that is wasn't going to change was the fact that there had been an increase in neonatal mortality. Whatever else the report said, that central fact would remain, wouldn't it?
KELLY: When we received that report, it wasn't clear that there had been an increase in mortality. There were incidents that had been reviewed at the Serious Incident Panel, not all cases ended up being reported. So we didn't have a clear picture when the CQC landed to do their inspection at that time.
DE LA POER: So the Thematic Review deals with 10 cases?
KELLY: Yes.
DE LA POER: Why was that not sufficient for you to see that there had been an increase in mortality?
KELLY: As I say, I don't recall reading in detail that report as it came through from -- as it was forwarded from Mr Harvey.
But because we knew that there was going to be a follow-up report so I didn't really digest it in detail at that time.
DE LA POER: I mean, being candid, did you go into that meeting with the CQC not realising there had been an increase in the mortality?
KELLY: I -- I generally had not realised at that time, no.
DE LA POER: Even though, opening the Thematic Review that you were sent, that would be immediately apparent from having opened it?
KELLY: I can't recall when I opened that report but what I did know from the covering email was that it wasn't the final report it was a draft.
DE LA POER: So I will just return to my question. You seem to accept that you didn't realise there was an increase in neonatal mortality. Should you have realised that before the CQC came?
KELLY: In terms of systems and processes and governance, and the review that the doctors had undertaken as part of the Thematic Review potentially yes, but we didn't have any clear clarity at that time.
DE LA POER: But you don't need any of that, you just need to open up page 1 of the Thematic Review and see that is what's stated, don't you, that there had been
an increase?
KELLY: There had been an increase but there was lots of explanations for that. So I don't know why that wasn't discussed with the CQC at that time, I don't recall that being part of my interview.
DE LA POER: An explanation for why it wasn't discussed is because you hadn't opened the report?
KELLY: I can't recall when I opened the report.
DE LA POER: Well, is it a possibility that you hadn't opened it by the 17th --
KELLY: Potentially, yes, when you get 150 or 200 emails a day, I might not have opened it in time to have my interview with the CQC.
DE LA POER: But this was a report that had been flagged within the email chain as being specifically relevant to the CQC visit, hadn't it?
KELLY: Dr Harvey had -- had emailed Dr Brearey about that, yes.
DE LA POER: Yes, so all of that will have been apparent to you?
KELLY: Yes, I think he just forwarded the report on to me once he's received it from Dr Brearey.
DE LA POER: Was Mr Harvey in the habit of sending you reports that he didn't want you to read?
KELLY: No.
DE LA POER: So you knew it was for you relevant to the CQC, you knew that Mr Harvey wanted you to read it?
KELLY: I think at the time it was just Dr Harvey wanted to be prepared for the CQC visit because I think that we knew earlier in the year that there had been some work being undertaken by the clinicians to include external stakeholders. So it was a prompt from Dr Harvey to Dr Brearey to say: is there anything that -- that can be shared which is the draft information at that time, just in case there was any conversation with the CQC.
DE LA POER: Well, did you have an increase in mortality in any other area in the hospital to report to the CQC at that time?
KELLY: I wouldn't have been involved in the detail. The mortality per se in terms of portfolio came under Dr Harvey. So I wasn't aware of other mortality issues.
DE LA POER: So this would be the only one that you had been told about?
KELLY: From that draft report, yes.
DE LA POER: Yes. Were you deliberately concealing that information from the CQC?
KELLY: Absolutely not.
DE LA POER: We received evidence from Ms Childs, who was the chair, that she would typically ask: "is there anything else that you think I should be aware of or should know or that you are worried about?", and that she would have asked: "what are the serious concerns or risks you have around patient safety? Where are you most concerned and what are you doing to mitigate it?" That is what she said she would have said. Do you have any reason to think that she didn't say that to you in your meeting?
KELLY: I -- I don't recollect that but she -- she may have said that.
DE LA POER: I mean, if she had said that and you had read the report, you did have something to tell her about, didn't you?
KELLY: I don't recall at what point I read that report because it was a draft report so I think we needed to understand what the bigger picture was before we shared anything with the CQC so I -- I can't recall that.
DE LA POER: What is wrong with telling the CQC: we have had an increase in mortality and we are in the process of investigating it?
KELLY: Yes, we may have said that. I'm not sure.
DE LA POER: Well, did you say that?
KELLY: I -- I -- I don't recall saying that, no.
DE LA POER: Bearing in mind that was something you knew,
should you have said it or you could have known if you had read the report?
KELLY: If I would have digested the report I would have said that we had a very open relationship with the CQC.
DE LA POER: So does it follow that if you had digested the report you would have said it, the fact you didn't say it must mean that you didn't read it?
KELLY: I -- I may have read it. I don't recall because it was a number of different reports for that one topic and that was a draft report.
DE LA POER: We move forward to 26 June. INQ -- 29 June, my mistake. INQ0015537, we are going to page 5. We will just recall as that document comes up the 29 June, [Child O] had died on 23 June, [Child P] on the 24th. We are going to come to all of that detail in a moment but we know that Dr Brearey spoke to you before the weekend and we know that by the 27th there were a number of meetings that were taking place so this is two days after those meetings and this appears to be first thing in the morning, your notes: "Call from TC [Tony Chambers] to defer CQC comms in light of NNU concerns raised." So is that a record of Mr Chambers calling you to say that the CQC comms should be deferred?
KELLY: Yes, that was in relation to the report being made public.
DE LA POER: Well, just help us with the phrase "CQC comms"?
KELLY: Communication cascade as a report was being finalised.
DE LA POER: Yes, so that is not a reference to what the Trust is going to -- press release the Trust is going to release --
KELLY: No.
DE LA POER: -- in light of the report?
KELLY: It was -- it was an automated cascade, when an organisation's report was completed, that would automatically go out through the communication channels at CQC.
DE LA POER: "No issues identified by CQC." Does that mean that you had some prior notice to what the report was going to say?
KELLY: Yes, we will have had a draft report that we would have had to scrutinise before the final one was released.
DE LA POER: Yes, and so you will have seen there from that that that the CQC didn't say anything about the increase in neonatal mortality?
KELLY: No.
DE LA POER: "Need to understand all issues but would not be good timing for Trust or CQC to present 'good' in light of current concerns". Now, in due course, did the Trust present "good"; in other words did the Trust draw attention to the fact that the CQC had rated them "good" in this report?
KELLY: Yes.
DE LA POER: So Mr Chambers appears to be saying or you are noting that that wouldn't be a good thing because there were those concerns?
KELLY: I think because the concerns had only just been raised in terms of deliberate harm, we didn't fully understand what was going on. So we needed to manage the communications well in light of CQC report coming out that would rate us as "good".
DE LA POER: So were you party to the approval of any communication after the CQC report which drew attention to the fact that the CQC had rated the Trust as "good"?
KELLY: I don't recall being part of, it would have been discussed at an Executive meeting but directly I wouldn't have been part of comms.
DE LA POER: So somebody else writes it, the form of words comes to the Executive, you tweak it if necessary and out it goes to the public?
KELLY: Potentially that would have happened, yes.
DE LA POER: Was that an opportunity really to say: we really ought not to be talking about the fact that we are "good" in circumstances in which we know that we may have a problem?
KELLY: We weren't fully clear at that time what the problem was and the CQC had had lots of information prior to their visit as well as being on site and had concluded that we were "good" as an overall rating. I think the timing of when the concerns were raised was -- was quite tricky because we needed to make sure that we weren't giving any false assurances to anybody and that we needed to really understand what was going on, so that's why that communication took place.
DE LA POER: Bearing in mind what you and the other Executives knew at the time, whatever the CQC said about you for the reasons that you have identified in this note, you shouldn't have been encouraging people to think that, should you, until you got to the bottom of the issues?
KELLY: Sorry, could you repeat that?
DE LA POER: Of course -- well, let's just have a look at the note, "need to understand all issues but would not be good timing for Trust", so it is not just CQC but for Trust "or CQC to present 'good' in light of the concerns".
So forget what the CQC there, let's just read it without: "... would not be good timing for Trust to present 'good' in light of current concerns." I think what you have told us is the Trust did go on to draw attention to the fact that CQC had rated them "good" despite the fact you appear to be having a conversation with the Chief Executive here about the fact that that wouldn't be a good idea?
KELLY: I think at the time, because those concerns that in terms of significant harm or deliberate harm had only just been highlighted, we absolutely needed to get to the bottom of what was going on in terms of actions being taken, reviews being undertaken, et cetera, so that we could clearly communicate outwardly after that what we were doing and that's what we did in terms of our communication plan which came at the beginning of July.
DE LA POER: Call to Bridget Lees, she is somebody who works at CQC?
KELLY: Yes.
DE LA POER: "High level reasons expressed." Is that a euphemism for saying you did not tell her about the concerns of the Consultants?
KELLY: Sorry, repeat that?
DE LA POER: "High level reasons expressed." Is that a euphemism for saying you did not tell her about the concerns of the Consultants?
KELLY: We said there was a -- there was an increase in mortality at that time. But again we needed to understand before we could communicate more widely what we were dealing with because we didn't know.
DE LA POER: Well, you had known that over a number of days, because this is 29 June, so the concerns first reached you on 24 June, following two deaths, by that time you had had a proper understanding of what the concerns were, didn't you?
KELLY: Again, paediatricians were not clearly articulating to us what the problem was. This is where on the -- on that, just before that weekend, Karen Rees had raised concerns with me around her communication with Dr Brearey.
DE LA POER: They had clearly articulated that the problem was Letby, hadn't they?
KELLY: Without any evidence and without any facts that were brought forward.
DE LA POER: Well, we have been through the evidence point and we are not going to repeat all of that, but I had understood you to accept that in fact what you had been given was evidence?
KELLY: I think it was just really difficult at the time to -- to recognise what was being -- what was being accused -- what was being allegated -- alleged, sorry. But what in the context of the CQC, what we needed to be really clear about was a full action plan of understanding what was going on. And that was taking into consideration the release of the report for the organisation.
DE LA POER: In terms of this action plan they need to understand what concerns you are investigating in order to be able to make sense of your action plan, don't they?
KELLY: Yes.
DE LA POER: Well, let's -- you see that effectively what's being said is that the process is automated so presumably the report is going to be released, come what may?
KELLY: Yes.
DE LA POER: And you go on to say you need to talk to Ann Ford, which is what you did the following day; is that right?
KELLY: Yes.
DE LA POER: We can see your email as a way of looking at matters in the way you discuss, INQ0017411. So we don't need to go through all of the detail of this. We can deal with it in this way: you don't in that email to Ann Ford say anything about the fact the Consultants are concerned about a particular member of staff, do you?
KELLY: No.
DE LA POER: That was one of the reasons for you acting as you did, the fact that they had raised those concerns?
KELLY: We just needed to make sure that we had clarity of the issues in order to have a clear communication plan to our regulators --
DE LA POER: Can I just --
KELLY: At that time --
DE LA POER: Ask you to focus on my question. The concerns of the Consultants was part of the reason for why you acted as you did?
KELLY: In which respect?
DE LA POER: Well, in terms of the action plan you developed.
KELLY: Yes, there were a number of actions that were being taken on the back of their concerns.
DE LA POER: So if we now look at how you framed it in the email, the third paragraph begins: for this reason ... So you set out what the problem is and then you say for this reason we are doing X, Y and Z. But in fact you have not fully articulated the
reason, have you, in the previous paragraph because you haven't explained that part of the reason why you are acting as you are is because of the concerns of the Consultants, do you agree?
KELLY: Because the mortality rate had been raised as a problem, we felt we needed to get a wider view of what was going on as opposed to directing it through Letby.
DE LA POER: Please just focus on what I am asking you. You give a list of events or pieces of information, the increase in deaths, in-depth review, didn't identify cause, theme for this increase and then you say "for this reason ..." But what you have skipped out there is the fact that this whole reaction, the extent of it, is being generated from the fact that the Consultants are saying: "we are concerned about Letby". Isn't that the true picture?
KELLY: We -- as -- I think we just needed to understand and get some factual evidence --
DE LA POER: Is --
KELLY: -- and I know we have talked about the evidence before.
DE LA POER: I am sorry to cut across you but just focus on my question. Isn't that the true reason for why you did all of those list of actions?
KELLY: Because of increased mortality, yes.
DE LA POER: Because of the concerns of the Consultants about it?
KELLY: The Consultants did raise that, yes.
DE LA POER: Yes, and you have just missed that part out when you say "for this reason"?
KELLY: I think that's because we needed -- we weren't sure about what was going on. So I think I would have been criticised for misleading by putting more information in as opposed to leaving things out. So we just needed to get absolute clarity of what was going on.
DE LA POER: Were you deliberately trying to hide from the CQC what was in fact driving this whole review?
KELLY: No.
DE LA POER: Now, you assert in this email that the Thematic Review had been sent to the CQC, I will just draw your attention to it, it is under the context, it is the last sentence: "However, the reviews have failed to identify any cause or common theme for this increase (these reviews were submitted as part of our recent CQC inspection data pack)."
KELLY: Yes, I --
DE LA POER: Can I just ask the question?
KELLY: Sorry.
DE LA POER: Upon what did you base that assertion?
KELLY: So I have reflected on that email and actually the timing and the chronology is wrong. So in preparation for the CQC visit, there would have been a huge amount of data provided, probably from the previous year to support the inspection, and what I have written there is I thought that the Thematic Review would have been shared but actually we didn't get it until February, so it is an error.
DE LA POER: Wasn't it necessary for you to check before you made an assertion that they had a document, that it had in fact been sent to them?
KELLY: I should have checked but I had an operational team that was dealing with that, so I wasn't that close to the detail at that time.
DE LA POER: Did they write this email?
KELLY: No.
DE LA POER: So could you have asked them: can we just check that the CQC have actually had the Thematic Review?
KELLY: I could have asked at the time, yes.
DE LA POER: Should you have asked them before you made that assertion?
KELLY: Possibly. I -- I felt that I was writing to the CQC in the full knowledge that I thought they had it and obviously they hadn't had it.
DE LA POER: That factual inaccuracy has the effect of making the Trust appear more transparent than in fact it was, do you agree?
KELLY: I -- I disagree. It was an error, the chronology was wrong.
DE LA POER: No. We have established it is an error. The effect of the error is to make the Trust appear that it has been more transparent than in fact it has been; do you agree?
KELLY: There was -- no, I don't agree. There was, there was no intention to mislead the CQC at that time.
DE LA POER: I didn't say anything about intention. The effect of it.
KELLY: The effect of it may give that impression that we were doing that yes, but that wasn't what was happening at that time.
DE LA POER: I am going to move forward to 17 February 2017, the engagement meeting. INQ0014405. Let's just have a look what's said to the CQC. This is a meeting that you attended: "Key risk areas: neonatal services. [Mr Harvey] explained that following publication this month ... the
parents of children that were contactable were informed and the report had been shared with them and key stakeholders. The Coroner has been involved and there are plans to discuss the report further with the paediatricians. Plans for staff include attending Alder Hey to help maintain competencies." So let's just have a look at that. Firstly the plans for staff include attending Alder Hey, is that a reference to how Letby's competency was going to be maintained?
KELLY: I -- I don't recall that was anything to do with Letby, no. I think there was a conversation with Eirian Powell as the unit manager about how we could make sure that skills were being maintained by staff on the unit as we had downgraded the unit and they were worried that they were going to be deskilled. So I think Eirian was -- had plans in place to make sure there was ...
DE LA POER: "There are lessons to be learned around transport processes and in the incident reporting system." Now, do you think that what the CQC were being told there was a misleading characterisation of in fact what was going on at the Trust at that time?
KELLY: I don't think any of that is misleading in
that there were genuine transport issues across the systems where babies were being transferred far too many times and transferred to other hospitals.
DE LA POER: I am not suggesting that shouldn't be mentioned. What about the fact that Dr Hawdon had reported that there were four babies that required further forensic investigation?
KELLY: Again, as mentioned before, and I have reflected on this, it may have been helpful to share more with our regulators at the time but we -- it was a really complex set of circumstances that we were trying to get answers to lots of questions and certainly at that time nothing was leading down a route to somebody deliberately harming babies.
DE LA POER: What -- well --
KELLY: But we perhaps should have shared a bit more information at that time, but we were still gathering the information internally.
DE LA POER: A Consultant neonatologist had been instructed to look at a number of cases and had come back and said that there were four that required further investigation. We don't see any hint of that being communicated to the CQC, do we?
KELLY: Not at that time, no.
DE LA POER: Should the CQC have been told that fact?
KELLY: I think it's because we were again still very unclear and what we know from the Royal College report was that -- and further with the Hawdon report that there was significant care issues but again we were pulling together all the strands of the information to try and get a picture ourselves before we shared that with our regulators.
DE LA POER: There was nothing inappropriate about saying that a Consultant neonatologist had recommended more investigation for four babies, was there?
KELLY: We could -- we could have said that but we didn't have any answers at the time so ...
DE LA POER: Well, you haven't had the answer. According to you, you haven't had the answer at any point in this process but you are telling them what you are doing but you haven't revealed that fact, have you?
KELLY: Not in that meeting, but that wasn't done with any -- any ill intention.
DE LA POER: Well --
KELLY: It was a high level meeting.
DE LA POER: Let's have a look and see what was on the Executives's minds three days earlier, INQ0003379. So this is the Executive Directors Group meeting and we can see right or just a couple of lines below the centre, do you see the word "firmer position"?
KELLY: Whereabouts are you looking, sorry?
DE LA POER: It is highlighted on your screen.
KELLY: Oh.
DE LA POER: So this is a record of the fact that the Consultants were saying --
KELLY: Sorry, can I just read a little bit above that email?
DE LA POER: Of course you can.
KELLY: Note, sorry. (Pause) Okay.
DE LA POER: So at this meeting what was being discussed by the Executives was the Consultants were -- had adopted a firmer position in light of all the reports that had been done to that date and they were asserting "not natural causes", that is the natural reading of this note, do you agree?
KELLY: Yes.
DE LA POER: So that's what you are talking about three days before going into the CQC and there is not a hint of that given to the CQC, is there?
KELLY: I think at that time we -- it was becoming more and more apparent that there were significant care issues and I know at the time the paediatricians challenged the recommendations of the Royal College
report.
DE LA POER: Significant --
KELLY: And the fact that all those -- all those babies -- well, the majority of those babies had postmortems as well, so it was -- it was becoming clearer that there was more care issues than there were deliberate harm issues. I'm not sure the terminology "firmer position" -- I'm not sure what that is actually alluding to.
DE LA POER: Well, it would be to suggest that they have moved from a position of saying: this may not be natural causes, to: this is not natural causes. So in other words, their position is firmer that would be?
KELLY: But that wasn't reflected in the reports that we were receiving --
DE LA POER: But that --
KELLY: -- at the time.
DE LA POER: But that is what the expert Consultant body are telling you their position is. Now, you have said that it's becoming clearer that it's care issues. We are going to come to have a look at the Royal College report in due course, but whether it's care issues or deliberate harm you needed to tell the CQC, didn't you, what was going on in your Trust? And that didn't happen, did it?
KELLY: We, we did tell the CQC but we didn't give them that level of detail because we didn't know ourselves at that time. We needed to pull all of those elements together to be able to articulate what was actually going on and it was a complex picture and in reflection, perhaps more information should have been shared at that time, there was an opportunity in that engagement meeting. But we didn't fully understand or we needed further review by from the recommendations of -- of Dr Hawdon, we needed to understand what the outcomes of that were going to be so that we could have fuller details to share in the CQC.
DE LA POER: I mean, do you agree in terms of an overview here because we are seeing this emerging time and time again that consistently what other external bodies are being told is everything but the Consultants' concerns, do you think that's a fair characterisation of the period up until the end of May -- end of April 2017?
KELLY: I think we were really clear in the communication plan in July 16 that we told all of our regulators about an increase in mortality.
DE LA POER: Can I just ask you to focus upon my question. Do you agree that what is happening to all of these external bodies is you are telling them everything apart
from the Consultant concerns; that that is the one piece of information that is consistently missing from all of these communications?
KELLY: I think looking back then we should have perhaps mentioned that as well at the time. However, we were really keen to fully understand what was going on. But perhaps those Consultant concerns should have been mentioned in the beginning.
DE LA POER: Being really keen to fully understand what is going on is the absolute opposite of the correct approach to a safeguarding issue; do you agree?
KELLY: Excuse me, say that again, sorry?
DE LA POER: Finding out absolutely everything that is going on is the opposite of the approach you should take in a safeguarding situation, do you agree?
KELLY: Yes. But as I mentioned earlier, we -- I -- were not considering this as a safeguarding concern. We were thinking of it as a mortality issue that we needed to get to the bottom of and to the information that was coming to light it was more about clinical outcomes as opposed to an individual.
DE LA POER: The information coming to light -- and this is my last question on this topic -- just before the CQC meeting was your Consultant body were asserting, it would seem in terms, that they did not think these deaths were natural. That was information coming to light three days before the CQC meeting, wasn't it?
KELLY: In that note that's what that implies. However, despite all the work that we were doing around trying to get to the bottom of the increasing mortality, our clinician colleagues were not accepting that some of those were -- some of those deaths had been the outcome of sub optimal care.
DE LA POER: Well, they were right about that, weren't they?
KELLY: Yes, but we didn't have any proof at that time but that was about unnatural causes.
DE LA POER: You don't --
KELLY: My understanding at the time was that there were no babies that were expected to die and it's not until we had experts from outside the organisation to do a more thorough investigation that we started to find out some of the clinical issues that were happening on the unit.
DE LA POER: Number 1 in the Thematic Review which we are turning to now as published on 2 March was that there were sudden and unexpected deteriorations in babies who died?
KELLY: Yes, that is in the report.
DE LA POER: Well, let's have a look at that topic 4, March to May 2016. On 17 March, you were sent a copy of the Thematic Review; is that right?
KELLY: Yes, am I able to see the email?
DE LA POER: Yes. In fact, we will go to the email first, INQ0003089. In fact it is the 21st but it is -- the first information is the 17th, that is my mistake. So if we go to page 2. We can see that 17 March, Ms Powell is saying she wants to arrange a meeting to discuss how to move forward, she tells you in terms that there has been an increase in mortality. Although they are small numbers, it is quite a big increase, isn't it?
KELLY: Yes.
DE LA POER: And that a commonality was that a particular nurse was on duty either leading up to or during this and a reference to when Letby started and a doctor was also identified as a common theme, however not as many as the nurse, and she goes on to say that nothing obvious has been identified and therefore they want some input from you. You respond four days later to say: could you see the report.
KELLY: (Nods)
DE LA POER: With the plan being for a meeting to follow.
KELLY: Yes.
DE LA POER: Within less than an hour, as we go over the page, Ms Powell sends you the Thematic Review?
KELLY: Yes.
DE LA POER: Now, did you consider that Thematic Review when you were sent it?
KELLY: I think I did at the time, yes.
DE LA POER: Because I mean you specifically asked to see it.
KELLY: Yes.
DE LA POER: And so did you then go and have a look at the appendix 1 to look at what was being said about Letby?
KELLY: I think when I received that, I recognised that Ian Harvey and I needed to discuss that at our next one to one.
DE LA POER: I am so sorry, can I just ask you to focus on my question. When you received it, did you go to appendix 1?
KELLY: No, I don't recall doing that, no, at the time.
DE LA POER: Well, you had been told by Eirian Powell on the 17th that there was a commonality and there attached to the report set out exactly what that commonality was. Why didn't you look at it?
KELLY: I think in the overarching email even though there had been quite a bit of work undertaken there was
nothing in that email that was drawing my attention to something really serious or urgent. So in terms of --
DE LA POER: Can I just ask you to pause there. You have just been told that eight babies have died against an expectation of two or three; is that not in and of itself extremely serious?
KELLY: It is serious but the tone of the email from Eirian to meet and understand her report didn't give me a sense of urgency.
DE LA POER: Well, do you think bearing in mind her next fact was to draw attention to the fact that discussed at a local level was the association of a member of staff that that was immediately something that you should pay close attention to?
KELLY: Yes, at the time, because she drew my attention to it in that email.
DE LA POER: You should have paid close attention to it from the very start, shouldn't you?
KELLY: Yes, and I am not -- I am not making excuses, but this will have been one email in amongst hundreds of emails that I would have received and I would not be able to open every attachment for every email that I would have received.
DE LA POER: This is -- this is your job, isn't it?
KELLY: It is my job, yes.
DE LA POER: It's a very important and serious job, do you agree?
KELLY: My job as a Director of Nursing?
DE LA POER: Yes.
KELLY: Yes.
DE LA POER: It's a well-paid job?
KELLY: Yes.
DE LA POER: You had enough information in that email of the 17th to see that there was something serious to be investigated, do you agree?
KELLY: Yes.
DE LA POER: You then went to the trouble of asking for the report so that you could get some more information but do we understand that from your reference to the fact you get a lot of emails and can't open every attachment that you didn't actually open it, is that why you told us that?
KELLY: I am just putting context into --
DE LA POER: Well --
KELLY: -- workload at the time.
DE LA POER: Well, did you open the email -- the attachment?
KELLY: I did, but I can't recall when I did.
DE LA POER: Does that rather tend to suggest that you did
not take it seriously enough?
KELLY: I did take it seriously because I needed to discuss that with Mr Harvey, which we then had a follow-up one-to-one where we I think discussed the report.
DE LA POER: Whether or not you treated it seriously my question was: did you treat it seriously enough?
KELLY: I think with the overarching email as I mentioned earlier, there wasn't anything that was telling me you need to open that attachment and have a look in terms of urgent action required.
DE LA POER: Because you don't from this thread appear to have even acknowledged Ms Powell having sent you the email because some 24 days later, she has to follow up. Do you see that?
KELLY: Is that the -- oh 14 April. And -- and that was obviously not a full final report because the medical team details were not included.
DE LA POER: It was presented to you as the full final report, there was no indication that it wasn't. Eirian Powell chose to update it but at the time that you received it on 21 March, you had no reason to think that it was other than the final version and for 24 days, it would appear nothing happened. Is that a fair description of what --
KELLY: I don't recall why there was such a time delay. Again, lots of things going on in the organisation at the time and the context of a Director of Nursing's workload is -- is huge.
DE LA POER: Was it your responsibility -- I'm sorry, I cut across you. You finish your answer please?
KELLY: So there will be many emails that would be requiring me to open attachments over that period of time.
DE LA POER: Was it your responsibility to ensure that there was a faster response than in fact you gave in this situation?
KELLY: I -- I recognise there could have been a faster response.
DE LA POER: To put it bluntly, were you too slow to acknowledge and act upon these concerns?
KELLY: I think at the time, and I have reflected on this, because it does feel that it's a big delay, it -- it could have been looked at in a much more timely way.
DE LA POER: Again just focus on my question. Were you too slow?
KELLY: I don't think I was, to be honest. I think if -- if somebody's got something so urgent they want me to see then why not come to my office or why not phone me up?
DE LA POER: Well --
KELLY: So unfortunately with emails everything gets lost in hundreds of emails that everybody gets every day. However, there's a number of weeks there that that hadn't been addressed that Eirian, nor Dr Brearey, came to seek out Ian Harvey or I.
DE LA POER: Rather than pointing at what other people might have done, which is for them to answer, should you have been more attentive to this than you were?
KELLY: Looking back now, maybe I should have been, yes.
DE LA POER: So you get a prompt on 14 April, which includes the medical team and that's the document, as the Inquiry understands it, that has names in red?
KELLY: Yes.
DE LA POER: Yes. INQ0003277. Now, do you agree that anybody who even opens the first -- that attachment and looks at the first page would immediately see that a person's name is in red?
KELLY: Yes.
DE LA POER: You can't fail to notice that. It jumps out off the page, doesn't it?
KELLY: Yes.
DE LA POER: Now, that was sent to you on the 14th. On the 28th, so 14 days later, your secretary arranged a meeting for 4 May?
KELLY: Yes.
DE LA POER: So that is 14 days after you received this where you have been chased as you said you would expect if it was urgent, and nothing appears to happen to bring this to a head; is that a fair summary of those 14 days?
KELLY: There had been a time delay and I don't know with not having access to my diary why that took so long to start having a meeting.
DE LA POER: Well, would anything other than ordinary hospital business be what you would discern from that diary?
KELLY: Yes.
DE LA POER: There would be other things potentially?
KELLY: There would be lots of things going on across the hospital.
DE LA POER: That weren't ordinary hospital business?
KELLY: I don't understand, sorry.
DE LA POER: Well, you have got a job to do and it's a busy job?
KELLY: Yes.
DE LA POER: I am just trying to understand what you think your diary, how that would shed light on why, over a 14-day period it would appear that there hasn't been a response to a chasing email sending you a document
with somebody's name in red and it's really what you are anticipating that diary might have revealed that would be capable of explaining that 14 days?
KELLY: I have not had access to my diary for this Inquiry so I am not able to comment on that. However, I think you will -- I am sure you will be coming to subsequent emails. What I hadn't appreciated at the time, because I didn't have time to open the appendix for the staffing, was the text that was in red because the previous reports that were being sent to Ian Harvey and I had no red text in it at all and were not raising any concerns about any issues.
DE LA POER: This one that was sent to you on 14 April did have red text?
KELLY: It did, yes.
DE LA POER: Yes, and nothing happened for 14 days, it would appear?
KELLY: No, and from that perspective I can only imagine that I didn't have time to open the appendix for the staffing.
DE LA POER: So just the whole thread starts with Eirian Powell saying she wants your help, that the context is too many dead babies and that a member of staff has been identified. She then sends you the report, 24 days go by, she
then sends you another document with Letby's name in red and your position is you didn't click on the attachment on 14 April just to see what it was all about?
KELLY: I think there was the report and then there was a staffing document and embedded in the report, I think if I have got the right version because there were a number of versions, I think there were 16 embedded documents. I would not have had time to look at all of those.
DE LA POER: On 14 April there was one document, as we understand it, it was this one. It requires five seconds to click on it, on an issue that had gone cold since March.
KELLY: And I believe there was doctors highlighted in red in that report as well.
DE LA POER: But you wouldn't have known that, you tell us, because you didn't click on it?
KELLY: No, probably not at the time no, I don't recall that.
DE LA POER: Was it an unacceptable failing on your part bearing in mind what you had been told in the thread which you just had to scroll down to see the context that you did not open this document at the time?
KELLY: I can't recall when I opened the document. But if it was something so urgent, knowing the busy
portfolio that a Director of Nursing has, I'm not sure why others did not approach me directly or Ian Harvey to say: we absolutely need a meeting, like this afternoon. People have done that before, they have come to stand at my office and say: we have got a serious concern, I need to speak to you. So having this buried in an inbox, it is not a good excuse but I can honestly say I can't remember at what point I opened that document.
DE LA POER: 4 May, Dr Brearey emails you when it appears the meeting can't go ahead at its scheduled time INQ0003138. Scroll down, please. He tells you in terms: "There is a nurse on the unit who has been present for quite a few deaths and other arrests. Eirian has sensibly put her on day shifts at the moment but can't do this indefinitely. It would be very helpful to meet before she is due to go back on night shifts. there is some pressure regarding staffing levels with this at the moment." So Dr Brearey is telling you, in terms, that there is a particular nurse who is associated for quite a few deaths; is that right?
KELLY: That's -- yes, that's what he is saying to me.
DE LA POER: That is exactly you were told by Eirian Powell in March?
KELLY: That email though does not strike me as having an urgent issue. In fact, it refers to staffing and it feels like there is a staffing issue as opposed to any issue with that individual's practice.
DE LA POER: Ms Kelly, it's very important that you just focus upon my question. My question was: that was the same information that you had been given in March by Eirian Powell, I didn't ask you anything about the tone of this email, so just please focus. We have got a lot to get through. Can you answer my question, please?
KELLY: That, yes, that was a topic that was in that report in March.
DE LA POER: Let's go over the page. Your reply, not to Dr Brearey, but this is forwarding it would appear it on to Karen Rees, copying in Sian Williams. "Aah!! Please can you look at this with Anne M/Eirian -- if there is a staff trend here and we have already changed her shift patterns because of this, then this is potentially very serious!! I will check the report they sent through. I did not notice there was a staff trend!!" Now, firstly, you had been told about the trend by Eirian Powell, hadn't you, in March?
KELLY: Yes, as part of that original report.
DE LA POER: And if you had clicked upon the report, you would have seen it was sent to you in April, the trend was there marked in red, wouldn't you?
KELLY: Yes, and I don't recall seeing that report in red.
DE LA POER: So when you say "I did not notice", was that you concealing the fact that you had not looked?
KELLY: Absolutely -- I don't recall seeing the version with the red text at that -- I don't know what time I opened that document, but I hadn't obviously taken that in because I wouldn't have written that email and when I did, I was quite concerned.
DE LA POER: Yes, but I'm just asking you to focus on the language. "I did not notice" suggests that you opened it and didn't see it?
KELLY: The staffing attachment?
DE LA POER: Yes.
KELLY: Yes.
DE LA POER: But in fact you tell us you don't think you opened it.
KELLY: I don't recall. I don't recall seeing that.
DE LA POER: So a truthful way of expressing that was: I hadn't looked at the attachment until now?
KELLY: I can't be certain when I looked at that.
DE LA POER: And we can see here that you then do open that attachment: "Please see attached ... Lucy Letby highlighted in red!! I have not noticed this when I first reviewed." But if what you are telling us is right, you hadn't in fact reviewed it?
KELLY: I can't be certain.
DE LA POER: Well, in which case that would be a lie, wouldn't it? If you hadn't -- I mean, if you hadn't reviewed it and you were writing, "I have not noticed this when I first reviewed", you would be lying, wouldn't you?
KELLY: I don't lie.
DE LA POER: Okay. Well --
KELLY: There's the report and there's an attachment to the report. I have probably looked at the report and not fully appreciated the elements in red which were in the staffing element.
DE LA POER: Well, we have already established that if you had clicked on the staffing trend, which has the red name in, you would immediately see the name in red. You can't miss it.
KELLY: No.
DE LA POER: So I am just trying to understand why it is that you are telling your subordinates that you had
reviewed that document but not noticed it.
KELLY: Probably the first part of the Thematic Review.
DE LA POER: But you are talking here about the document where Letby's name is in red.
KELLY: I just -- I don't recall. I just don't recall.
DE LA POER: Is it possible that you were seeking to conceal the fact that you had not paid adequate attention to this by claiming to have reviewed a document that you had not reviewed?
KELLY: I wasn't -- I wasn't concealing anything. I think, and again it's not an excuse, but the workload of an Executive Director in a 600-bedded hospital is huge and there will be documents that I will have opened and not fully taken consideration of.
DE LA POER: Can we just be clear --
KELLY: I did not, I did not realise the text in red.
DE LA POER: You have spoken in general terms. This document, which you have agreed anybody opening it could immediately see that Letby's name in red, that doesn't fall into the category that you are talking about, does it, when you make that generalised assertion; that some documents you may have opened and not looked at in detail?
KELLY: I -- I don't recall.
DE LA POER: And you then sent a message to Mr Harvey, INQ0003087. We can see that at the top unfortunately the date doesn't appear reproduced on it, but we can say it's some time after 4 May: "Please see Steve's comments below which alarmed me!! Since receiving this I have asked Karen Rees to liaise with Eirian regarding this particular nurse (Eirian's further review is attached for info), I am currently reassured that there are no issues but I think it's worthy of wider review hence our planned meeting." Now, wasn't it a little premature to reach the conclusion that there were no issues?
KELLY: I'm unsure as to what Eirian and Karen had fed back to me.
DE LA POER: Well, you hadn't heard from Dr Brearey about -- and he was the person who had the concerns?
KELLY: Again, you know, I would expect Dr Brearey to have come to see me personally if he had had a significant issue with a nurse on the unit.
DE LA POER: And does the fact that a person has not come to see you personally mean that there are no issues?
KELLY: No, not necessarily. But an email trail being used as a way of escalation isn't sometimes effective as
it can be just because of the volume that you receive. And also the way in which it's articulated in the email, this didn't raise any concerns to me at that time.
DE LA POER: So let's go back to where I started about this email. Was it premature for you to be saying that you were reassured that there are no concerns -- or no issues, forgive me?
KELLY: There will have been a reason why I wrote that. So I'm assuming that I was already told that there were no issues with that particular individual.
DE LA POER: But that was before you had even heard what Dr Brearey had to say about it and he was the one who had pushed for the meeting in the email below. Shouldn't you have heard from Dr Brearey before you reached that conclusion?
KELLY: Possibly, yes.
DE LA POER: And really what it comes to is do you think there's a possibility that you went into the meeting on 11 May close-minded?
KELLY: No.
DE LA POER: Let's have a look, INQ0015537, page 3. We have already covered this meeting of 11 May. I just want to ask you a question about one of the notes that you made, bottom left-hand corner: "No hard evidence."
I'm just wondering whether even at this stage things had become a little adversarial, do you have any comment upon that?
KELLY: No, not adversarial. I think we felt at the time there was still a view that nobody had seen anything, there had been no results provided to us, there was nothing that suggested that there was anything sinister going on and when --
DE LA POER: Can I just pause you there. We've been through it. Nothing that suggested nothing sinister was going on. More babies had died was something that may indicate that something sinister was going on, do you agree?
KELLY: I would push back on that because on the Thematic Review what is really clear on there is that there were significant care issues, there were competency issues. So that was starting to build a picture of, of what we were trying to understand around the reasons for our increased mortality. No -- so when I mean "no hard evidence" there was no physical evidence or anything that anybody could show us that was a problem.
DE LA POER: I'm just wondering if you are setting the bar too high at that point if you are requiring hard
evidence at this stage to respond to a risk?
KELLY: I think that was done in, in -- also in the context of babies had had postmortems, there were outcomes that were -- that the Coroner was satisfied with. There were a number of different things that were going on, but still the clinicians were finding it very difficult to -- to give us examples of what was actually being done to harm babies as opposed to an association with one individual.
DE LA POER: If there really was a murderer on your unit, why would the clinicians necessarily have seen or heard anything because such a person is going to act in a covert way, aren't they?
KELLY: Yes, but, when you have things reported to you as in "we have a gut feeling", "I have a drawer of doom" information that can't be shared, it -- it doesn't give you confidence that we are getting the information that we need.
DE LA POER: You have mentioned the drawer of doom. You were the -- an Executive Director. If that was troubling you, did you ever say to Dr Brearey: I need to see in your drawer of doom?
KELLY: Not personally, no.
DE LA POER: No, and you had the authority to do that, didn't you?
KELLY: I could have done, yes, in conjunction with the Medical Director.
DE LA POER: So I am just wondering how troubled at the time you were about this drawer of doom because if you were taking it seriously presumably you would have said, "I want to see what's in that drawer."
KELLY: Yes, at the time. But again I was relying at that time with Karen Rees who was our -- my Head of Nursing who had had detailed conversations with Dr Brearey about that.
DE LA POER: But she didn't have the authority to do what you as an Executive had the authority to do?
KELLY: No, but I discharged my duty through my -- through my leadership team. So I would have expected her to have done that as well. I could have done it, but I can't do all actions.
DE LA POER: Well, if, if a nurse manager says to a doctor, "I want to see the material you have got" and the doctor says no, all that that nurse manager can do is come up to the very top of the hospital, the Executives and say, "I can't get access to it." At that point, isn't it over to the Executives and in particular you as her line manager to say, "Well, if there's a drawer which has all this evidence in I want
to see it."
KELLY: Yes, and, and I had a conversation with Ian Harvey on that, on the Monday afterwards, and I believe that the clinicians on that Friday evening went home and that's when Karen raised her concerns with me.
DE LA POER: Did you say to Dr Brearey, "I need to see what's in that evidence drawer."
KELLY: No, not directly.
DE LA POER: Why didn't you do that?
KELLY: It was a very random thing to have shared and I am not quite sure what I thought at the time because I didn't know whether that was a figure of speech or whether it actually was a drawer with documents in it that wasn't being shared. So that's why I needed to speak to Mr Harvey, which we did on the Monday, and I was satisfied with Karen's response to me about her discussion with Dr Brearey at that time.
DE LA POER: You see, the drawer of doom is used as a way of discrediting the doctors, isn't it, that they are talking in this ridiculous language that they won't share. That's where this sits in this piece, isn't it?
KELLY: I just thought it was a very odd thing to say. It's nothing you would think a Consultant would say and when they were challenged they wouldn't share any
information which, which again troubled me a bit.
DE LA POER: Why didn't you say, if they weren't being forthcoming, "I understand you have paperwork that supports this. Bring it to me."
KELLY: Yes, I should have done that the week after.
DE LA POER: Well, and is that -- the reason that you didn't because you just weren't taking this seriously enough?
KELLY: I absolutely was taking it seriously.
DE LA POER: What other explanation do you have for why you did not request written evidence which you understood was being said existed?
KELLY: On that Friday, I think we were all a little bit bewildered really in terms of trying to get our heads round what had actually been said. There were actions put in place by Karen Rees that were fed back to me and felt that was proportionate and appropriate at the time and that I would discuss that with Ian Harvey on the Monday morning.
DE LA POER: Well, did Ian Harvey tell you that you shouldn't ask for the contents of --
KELLY: I don't recall the detail because we needed to then go to the meeting where we spoke to Dr Jayaram and Dr Brearey later on that day. I can't recall having a conversation about shall we speak to Dr Brearey about
it. But he was made aware.
DE LA POER: Did you think he was lying, Dr Brearey, when he said that he had evidence in his drawer?
KELLY: I -- I didn't know what to think. I didn't know what to think. It just seemed a very unusual thing to say.
DE LA POER: And he having said that he had written evidence, was it an unusual thing that you never asked to see it?
KELLY: I -- I don't know. I -- like I say, at the time I didn't know whether it was actually a physical drawer or whether it was a figure of speech and Karen Rees I know had had detailed conversations about that and he refused to give any detail over. So it -- it was a very odd situation and a very odd set of circumstances that we needed to reflect on over the weekend and then have a conversation on the Monday.
MR DE LA POER: My Lady, I am about to change topic. I wonder if we could break at this stage and could I ask for a shorter than normal lunch break so as to ensure that we make the maximum use of today, please.
LADY JUSTICE THIRLWALL: Yes. Will 40 minutes be sufficient?
MR DE LA POER: Yes, I hope so.
LADY JUSTICE THIRLWALL: So that means coming back at 25 to 2. So we will take a break now.
(12.55 pm)
(The luncheon adjournment)
(1.35 pm)
LADY JUSTICE THIRLWALL: Yes.
MR DE LA POER: Ms Kelly, we are going to resume by looking at the period immediately following the deaths of [Child O] and [Child P]. Now, we know that [Child P] died at 4 o'clock on 24 June of 2016. You were spoken to about the neonatal unit at some point on 24 June; is that right?
KELLY: That's correct.
DE LA POER: It's your position as you set out in your statement that you believe that was after the death of [Child P]?
KELLY: I think so, yes.
DE LA POER: We don't need to go into the reasons but how confident are you that it was after 4 o'clock?
KELLY: I am not that confident. I know it was late on a Friday afternoon, but I can't be certain of the time.
DE LA POER: Whenever it was, the first you knew about problems on the 24th was from Karen Rees; is that right?
KELLY: That's correct.
DE LA POER: She told you that two Consultants suggested to
her that Letby was intentionally harming babies?
KELLY: Yes.
DE LA POER: And that allegation was being made in the context of at least one very recent death that you were told about; is that right?
KELLY: Yes.
DE LA POER: Because you were at least told about the death of [Child O], whether or not you were told about the death of [Child P] at that stage?
KELLY: I think so, yes.
DE LA POER: So the context here is that you had left things on 11 May with a "watch and wait" approach and that you needed to be notified if there were any sudden unexpected deteriorations. You are then told a death has occurred and that two Consultants, the clinical lead for the paediatric department and the neonatal unit lead were both saying, in terms, that Letby may be responsible for that death; is that right?
KELLY: Yes.
DE LA POER: So this required immediate action, did it, from you?
KELLY: Which period of time are we talking about?
DE LA POER: When Karen Rees told you?
KELLY: Oh, Karen Rees spoke to me.
DE LA POER: That is what we are focused on, we have
explained what the context was?
KELLY: Friday evening.
DE LA POER: Here at that moment, at the very least [Child O] may have been murdered by Letby is what you were being told?
KELLY: I am not certain when I was told about Baby O [Child O] in terms of the time of death but what I do know is on that Friday afternoon, Karen Rees did come to speak to me very concerned about what she had been told from the doctors.
DE LA POER: Which was that they were concerned that Letby was intentionally harming babies?
KELLY: Yes.
DE LA POER: That was in the context, the trigger for them saying that was a death the day before?
KELLY: Yes.
DE LA POER: So again just focusing on my question, what was being said to you was that two Consultants were concerned that Letby may have murdered [Child O], isn't that what you were being told?
KELLY: Yes. But not in those terms. Not directly. That was the problem. There was no clear articulation of the facts and how that was -- how they were coming to that conclusion.
DE LA POER: But that was the conclusion you were being
told that they had reached?
KELLY: From their perspective, yes.
DE LA POER: Yes, and so that requires immediate action from you, do you agree?
KELLY: Yes.
DE LA POER: What immediate action, which is to say what you did immediately being told that information, did you take?
KELLY: Karen Rees and I had a conversation, I can't remember the sequencing but I think she -- she had been back to the unit to find out what the plan was for the weekend in terms of staffing.
DE LA POER: Just pause there. You finished your conversation with Karen Rees. Who, if anybody, did you pick up the phone to speak to, or did you go out of your office to speak to, to action, to act upon this concern?
KELLY: Personally I didn't do anything after I spoke to Karen because as I mentioned before my duties are discharged to my team, I -- I have Karen Rees held in very high regard. She was going to do a set of actions and I was happy with that.
DE LA POER: This is a concern of the highest degree of magnitude, isn't it?
KELLY: It will -- there were concerns being raised, yes.
DE LA POER: No, listen to my question please. This is a concern of the highest degree of magnitude, wasn't it?
KELLY: It was a serious concern, yes.
DE LA POER: You don't accept the characterisation "highest degree of magnitude"; very, very serious?
KELLY: It -- it was very serious but Karen having spoken to me I felt we were doing the right things that evening.
DE LA POER: Well, and did you discover that Letby was due to work?
KELLY: No, I was unaware of that.
DE LA POER: Did you ask Karen Rees to find out if Letby was due to work?
KELLY: No, I didn't at the time.
DE LA POER: You have just been told that Letby may be responsible for a murder the previous day and that was the sincere view of two very senior Consultants. Why was your first step not to find out if she was working the next day?
KELLY: Because I know that Karen had had a conversation with the unit and I had made an assumption that everything was okay, I had some assurance from Karen that there was no issues with the team over the weekend. She put some additional resource
in place. So I was satisfied with the actions that she had taken that evening.
DE LA POER: What additional resource could be put in place if Letby had been determined to murder over the weekend?
KELLY: There was additional supervision provided for the whole of the neonatal unit, but there had already been some assurances from -- it wasn't Eirian, actually, it was Yvonne Griffiths I think that was on duty, that they didn't have any concerns about staff over the weekend.
LADY JUSTICE THIRLWALL: Did that include Letby?
KELLY: Yes, collectively.
MR DE LA POER: So the nursing staff saying they are not worried about Letby working over the weekend, the doctors saying they are because they think she may have just killed a baby.
KELLY: But.
DE LA POER: Should you have taken further steps at that time?
KELLY: I have reflected a lot about that and it was just a very, very difficult time.
DE LA POER: Well --
KELLY: But at the time I felt I had taken appropriate action with Karen Rees, because we were still not getting any information from the Consultants about how
they thought Letby was a risk.
DE LA POER: I think we have established that you made no effort yourself to go and find out why these two senior doctors thought that a member of staff may have murdered a baby in the previous 24 hours?
KELLY: Not at that time, no.
DE LA POER: Well, you don't take any step to ensure that Letby can't harm any more babies; you don't take any step yourself to speak to anybody about it; and you don't take any step to get to the bottom from the horse's mouth, from the Consultants themselves, why they thought what they thought. Doesn't that just indicate that you just didn't take this seriously enough?
KELLY: I was taking it seriously, but as a director you do not do every single action that's required of you. You have a team to do that. I was satisfied with Karen Rees' approach, we had a conversation, we had a further conversation later that evening because that's when Dr Brearey and Karen Rees had a conversation on the telephone and I was satisfied by the actions that were being taken over the weekend, I recognise I didn't ask the specific question: is Letby working tomorrow? I had that assurance from Karen that staffing had been reviewed and everyone was satisfied.
Yes, on reflection, I -- I -- I could have done something differently and maybe that was a missed opportunity.
DE LA POER: Everybody being satisfied: did every single person who was satisfied know exactly what it was that Dr Brearey and Dr Jayaram were concerned about?
KELLY: When I say that, I'm talking about Karen Rees and her conversation, which I don't know the detail of, with Yvonne Griffiths on the unit that evening.
DE LA POER: This is exactly the sort of situation, isn't it, that calls for an Executive Director to be involved directly and personally, isn't it?
KELLY: What we know now compared to what we knew then you could say that, yes. But we don't have capacity as Executives to do every single action and I -- I relied on one my most senior nurses to understand what was going on.
DE LA POER: What was more pressing than the suggestion by two Consultants that a member of staff may just have committed murder?
KELLY: I just felt I needed some concrete evidence because it just felt like when Karen came to speak to me, it just felt like they were being quite blasé about the statements that they made. And, you know, it was a very difficult thing to hear. So maybe I didn't, I didn't process it as -- as I should have done at the time.
DE LA POER: Is it as simple as the fact you just didn't believe them?
KELLY: I didn't not believe them; I wanted some evidence.
DE LA POER: Well, why did you need -- why did you need evidence to become directly and personally involved yourself, wouldn't that allow you to gather evidence there and then and find out if there really was a risk to those babies the next day?
KELLY: But when -- when clinicians say: I need you to take that nurse off the unit and they don't give you any rationale or any -- any concrete evidence, I have said that before, about why, then it's quite -- that's quite difficult to manage and I know we have had a conversation earlier on about evidence. But I think it was just really, really difficult and, you know, looking back I perhaps could have done something differently but at that time myself and Karen Rees I felt we were taking the right action.
DE LA POER: But that action did not include taking steps to protect babies if Letby posed a risk; do you accept that?
KELLY: What I didn't ask or didn't clarify was
whether she was on duty the day after and I should have done.
DE LA POER: So my question again, just focusing on my question is: your actions did not include keeping babies safe from Letby if she posed a risk?
KELLY: That -- that is difficult to hear. But I -- maybe I should have done something differently at that time, yes.
DE LA POER: You then received another call from Karen Rees at home?
KELLY: Yes.
DE LA POER: Telling you that Dr Brearey had repeated his request for Letby to be suspended?
KELLY: Yes.
DE LA POER: Do you agree that was an opportunity for you to contact Dr Brearey directly to find out what was going on instead of operating through an intermediary?
KELLY: I believe in Karen Rees' evidence that Dr Brearey didn't believe that Karen had contacted me, so when she spoke to me she said: don't be surprised if Dr Brearey gives you a call and that call didn't materialise.
DE LA POER: Didn't there come a point in the evening where you should have called him?
KELLY: Again, I think the assurances that Karen gave
me, it felt like a number of actions were being put in place. Again, persistently asking what, what evidence have you got? What is the rationale for this? Have you seen her doing anything? A number of questions I think and there was -- there was no -- it felt one way there was no information coming back.
DE LA POER: But the person you are asking is not the person with the answers. The person with the answers is Dr Jayaram or Dr Brearey. Just for the final time on this topic, why not just pick up the phone to them and say: this is your Executive Director, the safeguarding lead, phoning you. You want somebody off the ward, you think that she may have committed murder, tell me about it?
KELLY: Yes, on reflection I -- I perhaps should have done something differently.
DE LA POER: On the 26 June, which was a Sunday, Dr Brearey invited to you a meeting with the senior paediatricians where all of these matters could be told to you directly; that's right, isn't it?
KELLY: It is, yes.
DE LA POER: You didn't go to that meeting, did you?
KELLY: No. Neither Ian Harvey or I attended that meeting and I don't know why because we have not had access to our diaries as part of this Inquiry.
DE LA POER: Can you conceive of anything more significant that was going on in the hospital at that time to prevent you from going to a meeting where the Consultants would have explained to you why they thought Letby was murdering babies?
KELLY: I can't comment on what else was going on in the hospital at that time and I can't comment on what was in my diary at that time. However, I do know that we knew that we would gain feedback from that meeting and myself and Ian Harvey were due to meet Dr Jayaram after that meeting in the charity Babygrow meeting which is what took place.
DE LA POER: I think that took place at 10 am, in fact it was before that meeting?
KELLY: Right.
DE LA POER: In which Dr Jayaram said was it was very worrying and you say in your statement you felt a significant shift in gravity. That is all before the Consultant meeting at midday. But you just didn't go to that meeting?
KELLY: And I don't know --
DE LA POER: For some reason you can't give us?
KELLY: I don't know why, I haven't got access to that information.
DE LA POER: I mean, would you agree it would have to be a pretty extraordinary thing that you would have to go to not to prioritise going to that meeting to hear what they had to say?
KELLY: I can't comment. I honestly can't comment because I don't know what else was in my diary. There was lots of competing priorities across the organisation and I understand what you are saying, but I am not able to articulate the detail any longer any more.
DE LA POER: Again, if we just track back, what we have understood that you didn't do anything immediately being told Karen Rees, other than to send her back into find out more. You didn't phone Dr Brearey later that day. You didn't turn up to the meeting on Monday the 27th. I mean one potential explanation for all of that is you just weren't taking this seriously enough?
KELLY: That's not true. I take every part of my role very seriously but, I can't -- I can't comment on the context that was happening at the time.
DE LA POER: There was then a meeting on the evening of 27 June, which you and Ian Harvey went to, together with some nursing managers. Do you recall the meeting that I am talking about?
KELLY: Are we able to get that up? Is there any notes?
DE LA POER: Yes, INQ0015537, this is the action plan
meeting, I am sure you recall it?
KELLY: Okay.
DE LA POER: Do you remember the one I am referring to?
KELLY: Yes, I do.
DE LA POER: Well. we can bring up the action plan and page 4 is the notes that you made of it. Nobody at that meeting held a concern themselves, did they?
KELLY: No, not directly no.
DE LA POER: Nobody who held a concern was invited to that meeting, were they?
KELLY: I think what was quite tricky at the time was trying to get everybody in the room at the same time with knowing that Consultants have clinical commitments. So that was an immediate meeting that myself, Ian and Eirian Powell had and I think with the intention that myself and Ian Harvey followed up with the Consultants afterwards, I just think we couldn't get everybody in the same meeting.
DE LA POER: Were any Consultants actually invited to that meeting?
KELLY: I'm not sure, but I think we were due to meet them afterwards.
DE LA POER: Because the Inquiry hasn't seen any evidence I don't believe?
KELLY: I haven't seen any.
DE LA POER: No, I am sure you haven't and yet without having anybody present at that meeting who actually held a concern or could articulate what their concern, an action plan was created. Do you accept now that formulating an action plan without either you or Ian Harvey having heard from the Consultants yourselves was not an appropriate approach?
KELLY: It -- it would have been beneficial to have them there but I'm not sure why they weren't there, I can't comment on the diary request.
DE LA POER: Were they being excluded from this so that the plan could be developed without reference to them?
KELLY: No.
DE LA POER: When we look at the action plan, did any of these actions that were identified address the risk in the short term, in the immediate term, that the Consultants had identified?
KELLY: No. But I think there were a number of actions that we could have which we did take forward --
DE LA POER: Well, Letby was still --
KELLY: -- to support the Consultants' concerns.
DE LA POER: Well, the one action that could be taken to address the Consultants' concerns that just a few days earlier Letby had committed murder would have been to stop Letby from working that week. You see this is the
27th which is the Monday and she was rostered to work that week before she went on holiday?
KELLY: Right. I was under the impression that she wasn't in work but I have since found out by information for this Inquiry that she actually was at work.
DE LA POER: Well, had anybody told you in terms: she is not at work?
KELLY: I don't recall that, no.
DE LA POER: Well, isn't the most important step you need to take before do you a list of things -- a list for things some time in the future is to find out what does the shift pattern say so that we can see if she is going to pose a risk this week.
KELLY: Yes, and -- and Eirian should have shared that information at the time.
DE LA POER: I'm sorry, who should have shared that information?
KELLY: Eirian Powell knowing the shift, knowing the shift rota.
DE LA POER: Well, shouldn't you have asked?
KELLY: Yes, I should have asked but I made an assumption that she -- she wasn't in work as a run-up to annual leave.
DE LA POER: What did you base that assumption on?
KELLY: I'm not sure. I didn't ask the question.
DE LA POER: Do you think that as at this meeting you had lost sight of the importance of maintaining patient safety that week?
KELLY: No, because there's a whole host of actions there --
DE LA POER: But --
KELLY: -- that we are trying to glean what was going on.
DE LA POER: But none of those actions are addressing the risk that the Consultants have identified for you, which is that she might have killed and might kill again.
KELLY: I suppose we found it quite -- we found it quite difficult to kind of comprehend, really. You know, as a Director of Nursing, in that organisation I was over nearly 1,000 nurses and midwives. The last thing on my mind is that one of my nurses is -- is deliberately harming children or babies or adults.
DE LA POER: It's not unheard of, is it?
KELLY: It's not unheard of but I have to say that was not in the forefront of my mind.
DE LA POER: No, but you certainly weren't sitting there on 27 June thinking: that has never ever happened before?
KELLY: No.
DE LA POER: Here you have extremely credible, knowledgeable expert people telling you that that is
what they think the risk is and you don't even appear to be talking about how you might address that risk?
KELLY: I think at the time I was relying on my senior nursing team to give me assurances on Letby, particularly Eirian Powell, who knew her the best. I -- I would not know individual nurses on an individual basis. So I -- I made an assumption that everything was okay on the unit and I didn't ask those questions.
DE LA POER: Well, how would Eirian Powell know if Letby was murdering anybody?
KELLY: She wouldn't have known. But she would have raised concerns should she have had any concerns about her as an individual and her practice. The practice bit is really important because you automatically go to competency, not murder.
DE LA POER: But that is not what we are dealing with, is it? At this stage, if we focus on 27 June you were dealing with murder, that's what was being suggested, and Ms Powell couldn't give you any reassurance about that, could she?
KELLY: But when you say suggestions of murder, suggestions from clinicians who could still not articulate why they thought that. And that was -- that was quite frustrating and maybe it's because I wanted
clear answers as to why they were so concerned.
DE LA POER: Is this meeting an example of where the situation had degenerated into doctors versus nurses?
KELLY: Sorry, say that again?
DE LA POER: Is this meeting an example of where the situation has degenerated into doctors versus nurses?
KELLY: No, not at all and throughout this process we were really keen to hear a nurse's perspective and a doctor's perspective and actually patient safety was absolutely paramount. This was a team that before all of this worked really well together and it's unfortunate that because of the events that we are now talking about it, it -- it became divisive between the nurses and the doctors and that's -- that's not conducive to good working.
DE LA POER: It is important that you understand that if you are going to say that patient safety is paramount that I am going to need to ask you for how patient safety was paramount bearing in mind that this meeting did not address the risk that had been communicated to you?
KELLY: I -- yes, I made an assumption that Eirian Powell was -- was managing the risk at a unit level.
DE LA POER: I am going to move to my sixth topic which is
the involvement of the police. INQ0047571. This is, as we will see, a series of emails on 29 June. So we are going two days forward and here you say that you discussed in that first sentence at the bottom with Sian Williams, your deputy, the police. Now, we are going to come back to Ms Williams in due course, so this is at an earlier stage, before her involvement with the review. So there is a discussion about the police and what Mr Harvey says is: "My own feeling the police have been raised, I think we will have to." The context for all of this is Dr Saladi's email, which you will remember, in which he says: I think we need to report ourselves to the police?
KELLY: Yes.
DE LA POER: So you have discussed it with Ms Williams, Mr Harvey has said in terms I think we will have to, and you have replied: "Thanks, yes, I would agree re the police." So the position seems to be although that time is plainly wrong, 7.31 in the morning, for reasons I can't explain to you, out of sequence, but it would seem that early in the morning on the 29th, your position is the police need to be involved; is that right?
KELLY: It is but I -- I don't recall the specific conversation which Sian Williams, my deputy, at the time.
DE LA POER: Well, we will not trouble ourselves about that. So that's where we start on the morning of the 29th. We can then see that there was a meeting with the paediatricians and the Executives, INQ0003371, also on the same day. We will go, please, to page 3. I am just going to draw your attention to two parts, firstly, of these minutes and then of minutes the following day. We can see a note towards the top. There is a discussion about Commission review, then police, or police and consequences, balance needed. So that appears to be a discussion that's going on at that time about the police. We can also see, just diverting for a moment as it's on screen, "Nurse cannot be excluded". Do you know why it was being said on the 29th that Letby couldn't be excluded?
KELLY: No, I can't recall that.
DE LA POER: I mean, of all the people present in the room as her line manager whether ultimately she was excluded would sit with you; is that right?
KELLY: It would, yes.
DE LA POER: Does it seem likely that you are saying to this meeting "nurse cannot be excluded"?
KELLY: I may have done but I can't recall it doesn't say who -- who actually said that in those notes.
DE LA POER: No, but it's unlikely that others at the meeting would be asserting in terms she couldn't be excluded?
KELLY: Not necessarily because as an Executive Team we work really cohesively and so we -- we freely spoke about each other's portfolios so, I mean, you would directly think that would be attributed to me, but I'm not sure.
DE LA POER: We will go over to the meeting the following day. We are staying with this idea of the police, so just we can see there INQ0003362, this is a meeting on 30 June. Sir Duncan Nichol attends this meeting and we will just track through what's said at that meeting. Page 4, and what Mr Chambers says right in the middle: "TC [I'm not sure what the symbol indicates but] nurse removed, would death stop?"
LADY JUSTICE THIRLWALL: It says "if".
MR DE LA POER: "If nurse removed would death stop", and Dr Brearey replies "risk would be reduced". Then we will go over the page. Just to see, we can
see and it's not the only time but this is our example that at one point in this meeting Mr Cross at the top "outline of police action". Then just finally to complete these notes before I ask you about what was said across these two meetings: "Test hypothesis: yes, no, police." So firstly I -- just if we can take that down -- want to ask you about what you recall Mr Cross said at the time of these two meetings about the police?
KELLY: I think we had a general discussion about, about the police. I think throughout it all we were trying to be open-minded. We did refer to Stephen Cross because he had knowledge of the police from his previous roles and I think there was a conversation around -- although I can't be absolutely accurate, I think there was a conversation around what we would need to consider if we phoned the police. But the level of detail I can't recall.
DE LA POER: Well, other witnesses have told us about him saying things like "blue and white tape", "neonatal unit a crime scene", that sort of thing. Do you have any recollection of him saying anything like that?
KELLY: I'm not sure about the words "crime scene". I think it was more around how would we manage a police investigation in terms of messaging to families,
messaging to the local community and in particular also around families that were going to be using the neonatal unit in the future. So I think there was a wider -- from what I recall, a broader conversation around -- you know, we would need to be really sure about phoning the police because we need to consider our patients, our staff, a number of different elements. I can't remember those terms that you have shared though.
DE LA POER: Why, if you call the police, would it necessarily need to be the case that your patients would ever find out about it if you are just contacting the police to ask them: can you give us some advice in this situation?
KELLY: In terms of advice?
DE LA POER: Yes.
KELLY: That could have -- that could have happened. I thought you meant a wider investigation which obviously comms would need to be involved.
DE LA POER: At this stage you are discussing calling the police?
KELLY: Yes.
DE LA POER: The criteria that you have identified about concerns that might arise in the mind of current patients or future patients, that will only happen if the investigation reaches a stage where it needs to be made public?
KELLY: Yes.
DE LA POER: If it reaches that stage, it's pretty serious, isn't it?
KELLY: Yes.
DE LA POER: Presumably if it had reached that stage everybody would be entitled to know about the fact that there was an active police investigation?
KELLY: Yes.
DE LA POER: So do any of those factors really bear on the decision about whether you should be picking up the phone and speaking to a suitable police officer to say: this is what's happening here?
KELLY: I think at the time we felt that we needed to get much more information internally so that we knew how we would articulate these concerns to the police. You know, on reflection maybe we could have gone to the police then but it actually didn't feel -- it didn't feel the right thing to do at that time because we felt we needed more information so that we could articulate clearly to the police what the problem was and at that time we weren't clear, it was complex.
DE LA POER: You say it didn't feel like the right thing to do. That may be because it wasn't the right thing to do
or it may be your sense of what was right was miscalibrated, do you think that your --
KELLY: No, I think we had a general conversation about the fact that we needed to know we all personally needed to understand what was actually going on in our organisation so that we could then clearly articulate to the police what the problem was because at that time we didn't really have a sense of what was going on. So it was a collective decision, it wasn't any one of us made a decision not to go to the police at that time. It was a general discussion at the Executive meeting around we needed to find more information out first before we considered the police.
DE LA POER: So by 5 July, Ms Appleton-Cairns was speaking to Mr Ian Pace of DAC Beachcroft and she is recorded as saying that there were no malicious issues and what Ms Appleton-Cairns has said when asked about that is that she had assurances from you and Ian Harvey that there was nothing malicious and that she had been told that you had been through every case. Were you saying around the 5 July that there were no malicious issues?
KELLY: I don't recall that because we hadn't gathered all our information.
DE LA POER: Quite, it would be quite -- I mean, if that is
what you said --
KELLY: I don't recall.
DE LA POER: -- it would not -- it would not represent a sound statement of the position, would it?
KELLY: No, no.
DE LA POER: Now, Ms Williams, your deputy, was commissioned as part of the review process that was taken out specially to conduct a staffing analysis?
KELLY: Yes.
DE LA POER: She has told us that she and Ms Fogarty, who did it together, reached the conclusion that the police should be called because of the association that they had identified of Letby. That's what Ms Williams' evidence was and Ms Fogarty gave evidence supportive of that. What Ms Williams said is that she spoke to you among other people about the fact that she thought the police should be called after she had done her review so not on 29 June as we have seen there, but after she had done her review. Did she tell you that the police should be called?
KELLY: I can't recall the detail of that conversation. I know that they did a detailed analysis, her and Julie Fogarty. I'm not sure of when that was escalated in terms of the concerns.
DE LA POER: What was the conclusion of that analysis?
KELLY: That piece of work was part of a wider internal investigation and I believe that that did show that Letby was present but not directly caring for babies at that time.
DE LA POER: So it confirmed that the information you had before that was accurate?
KELLY: But I think also just to add to that, there were also doctors named in that analysis as well.
DE LA POER: Well, you were -- the name of Letby raised before, Ms Williams has conducted that piece of work and confirmed independently of Ms Powell and Dr Brearey that their information is sound in terms of the basic facts and she herself is concerned, she tells us, about it. Is it your position that you just didn't realise that she thought the police needed to be called or that she may have said that to you and you have forgotten?
KELLY: I really can't remember that conversation. But I think again that staffing analysis was about an association of individuals with incidents which formed part of a bigger piece of work which we needed to get, we needed to collate so that we were able to articulate to the police when we went to the police. I can't recall the details of Sian Williams's conversation with me about that, I have to be honest.
DE LA POER: It would be a strange state of affairs, do you agree that if she told you that she thinks the police should be called, if you had forgotten her saying that?
KELLY: Yes, I mean, in -- there was so much going on at that time. Lots of people were doing different sets of actions, this was when we had our internal incident review process. She -- she may have raised that concern about the police but I think we were looking at information in the round but I don't recall the detail of that conversation.
DE LA POER: That staffing analysis never gets referred to again, does it?
KELLY: Sorry?
DE LA POER: That staffing analysis which demonstrated the association with Letby and led to Ms Williams being concerned, it never gets referred to again once it's carried out, does it?
KELLY: I am not certain about that.
DE LA POER: Well, let's just cast your mind back. Did you tell anyone in all of the organisations and all the conversations that you had with external bodies, did you ever say one of the things we did was a staffing analysis and that staffing analysis demonstrated that Letby did have a strong association with a number of these babies?
KELLY: I don't think that level of detail was shared
at the time, no, but in the CQC list I think I wrote we were doing a staffing analysis.
DE LA POER: That you were doing or had done? I mean, on 30 June you said you were going to do it. But you never told the CQC after you had done it what the outcome of it was?
KELLY: I don't recall that.
DE LA POER: Well, we have looked at the 17 February when you are telling them about what the position is then, you didn't say at any point: we did a staffing analysis as part of our internal review and it demonstrated the association of Letby?
KELLY: I think, yes, association with Letby but I think that was just one part of a bigger jigsaw, if you like, that there was lots of other things going on at the same time, so we needed to get a full picture. It was complex, it was unclear, the staffing element was one -- just one part of it and we needed to pull all that together to get an idea of what was going on.
DE LA POER: Why was it complex?
KELLY: We had different reviews that were going to be commissioned, we had to downgrade the unit which operationally was challenging because that wasn't just about the Countess, that was about our partners across
the system. The clinical criterias being drawn up. There were a number of different things that were happening in that time and the staffing analysis and the association with Letby was one part of that. So that's -- that's a reason why we didn't communicate fully with our regulators at the time because we needed to understand what was actually going on, in the absence of any clear evidence, again, from our clinicians.
DE LA POER: I would like to just ask to you consider this explanation so that you can comment upon it: you commissioned a staffing analysis, it demonstrated the very thing that Dr Brearey had told you he had found when he and Ms Powell had gone through it, you didn't like the fact that that was a piece of evidence which supported the allegation and so you just didn't refer to it again?
KELLY: That is absolutely untrue. I did not feel that at the time. I think the word "association" is a really interesting one because there was association with doctors, there was association with some care issues which were already articulated in the Thematic Review, competency issues on the unit. So we couldn't just hone in on one element. It needed to have a multi-factorial approach.
DE LA POER: We are going to come back to what you say about doctors being indicated by that analysis. We are going to move to my seventh topic, which is the NMC, which will give us an opportunity to do that. Now, you sent an email to the NMC on 4 June asking for some -- an opportunity to speak to their ELS service, that led to a conversation which led to an email being sent following the conversation, summarising what happened, and you went through that email and just marked up any changes?
KELLY: Yes.
DE LA POER: We don't need to go through it all again but I can bring it up on screen, if you need me to, but I am sure you will be able to take it from me that among the things that you said to the NMC was that there was no evidence?
KELLY: At that time there was no evidence.
DE LA POER: Well, we are not going to go through all of that again. We will move through to the email of 31 August, INQ0002964. This is an email that you have been chased for an update, we can see was sent on 23 August by Mr Newman and seven days later you provide that update. It's just one part of this: "As previously mentioned, we undertook a thorough internal review [in that first paragraph]. Nothing significant was identified within this." So far as this is concerned, that's misleading, isn't it, that nothing of significance was identified with your internal review?
KELLY: At that time that was my perception, was nothing significant was identified that would lead me to think that further action was required. I was asking Tony Newman for further advice, giving an update on what we were doing, which we had agreed in the previous communication. I don't -- I wasn't meaning to mislead anybody.
DE LA POER: Well, let me invite you to consider this. Within that internal review, there had been the staffing analysis done that had confirmed the Letby association, that's one thing. We have been over that. But also Dr Gibbs together with Ms Martyn had conducted a review of the cases referred out and had identified six cases which they were concerned about. Now, both of those are relevant to the development of the potential concerns about Letby, but you are not reporting those to the NMC, instead you are suggesting that nothing of significance came out of it. Why is that?
KELLY: Again I think it's terminology in the email
because below that is: "Following discussions with the board and on receiving views from our clinicians, a step ... taken to take LL on non-clinical duties". So again, removing the risk but still in a fact-finding position. So at that time, it felt that was the right thing to say but I -- you know, it wasn't purposely misleading.
DE LA POER: But it isn't accurate, is it?
KELLY: It's probably ambiguous.
DE LA POER: Well, "nothing" -- the word "nothing" is not capable of ambiguity, is it?
KELLY: Significant. Depends how you define "significant".
DE LA POER: Well, you had commissioned Dr Gibbs as part of the Executives to look at cases. If he had found none of concern to him, that would be nothing of significance. If he has found six which are of concern to him, is that not something of significance?
KELLY: From a clinical perspective but we were still unclear as to what was going on. So further information needed to be gleaned from those further cases from Dr Gibbs and Anne Martyn's review.
DE LA POER: But you are talking here about the output of the internal review they identified six cases of
concern. Just -- that's something of significance, isn't it?
KELLY: But we were still unsure as to what was going on. So it was -- you could say it was a holding position.
DE LA POER: It is a holding position that isn't accurate?
KELLY: But we have removed LL so we have removed the risk, so I was informing them she was on non-clinical duties.
DE LA POER: This is an example of information that the Executives had that is being withheld from the external bodies that tends to suggest that the concerns may be credible, isn't it?
KELLY: No. We were not holding anything from anybody. What we needed to do was be really clear, again, as I mentioned earlier about understanding our organisation and what was actually going on in our organisation before we could share that with our regulators. On reflection, we probably should have shared more with our regulators because we might have got some support to be able to manage this perhaps in a different way, but at the time I think the actions were numerous and we were dealing with the detail on a day-to-day basis.
DE LA POER: But --
KELLY: On reflection, like I say, we -- we probably should have shared more at key stages with our regulators.
DE LA POER: Now, from 27 April, you knew that the police were going to be involved, 2017, didn't you? You can take that down.
KELLY: Okay, sorry.
DE LA POER: From 27 April 2017 you knew the police were going to be involved?
KELLY: Okay.
DE LA POER: Do you agree with that?
KELLY: Yes.
DE LA POER: You did not contact the NMC to tell them that, did you?
KELLY: I can't recall. Maybe I didn't do that in a timely way. I can't recall.
DE LA POER: Well, 18 May 2017, the NMC had found out about police involvement from a press release and so they called you. Does that sound right?
KELLY: I think we communicated with everybody, unless the NMC were inadvertently left off that list. I thought when we were commissioning the police investigation that there was a separate communication plan sharing with our external bodies what we were doing.
DE LA POER: Well, at all events, let's have a look and see what was sent, INQ0002449, page 1. So this is the record of what was discussed. If we look in the centre of the page: "AK advised me as she had explained to TN previously there was a view held by several medical colleagues that a registrant may be the common denominator and are quite strong in their view that she may be the cause. This is largely based on an identification of her having been present on most but not all of the occasions when infants collapsed and died." Well, that isn't a fair or accurate characterisation of the Consultants' views, was it?
KELLY: I think that is quite clearly articulated as the Consultants' views.
DE LA POER: Well, their views were, starting point: an unexpected number of babies have died, there were sudden and unexpected deteriorations, the babies had failed to respond to resuscitation as we expected them to, we have investigated and we cannot identify any other common cause for this, but we can identify one person in common for all of these, and that is Lucy Letby. That in a summary position was where they were by
the time the police came to be contacted and you are not advancing any of that on their behalf, are you?
KELLY: As I mentioned earlier, aside to an association with Letby, there were significant clinical concerns that were borne out of the Royal College report, the Hawdon Review and McPartland Reviews and that constituted sub optimal care across the board in varying degrees across those -- those poor babies that died or had deteriorated.
DE LA POER: Not a single one of those causes -- sub optimal care was said to have caused death, though, was it?
KELLY: But there were also postmortems as well, that had outcomes, so there were a number of different elements.
DE LA POER: You have mentioned the postmortems, the postmortems did not suggest that the sub optimal care, if there was some, had caused death, did they?
KELLY: No, but if you put all of those elements together it doesn't show a particularly positive image of how that unit was being managed and there were a number of -- and the other element is that the words "unexpected" and "unexplained" were never discussed before June '16.
DE LA POER: Well --
KELLY: So --
DE LA POER: Again I am just going to make an assertion about that. In the Thematic Review of neonatal mortality it describes those sudden unexpected deteriorations, doesn't it?
KELLY: Sudden deteriorations, yes, but when you look at those cases that did actually find their way to a Datix report, and that is not all of the cases --
DE LA POER: Well, but the Consultants were saying that, that is what they were telling you, that we have notes from June of 2016 of Dr Saladi saying: these were not the babies we were expecting to collapse?
KELLY: But when you look at the Mortality Reviews that were actually led by Dr Brearey, there were no concerns being raised at all up to that point. So if you take all of that in the context of sub optimal care, there were lots of reasons why poor babies were dying and this was an -- in line with an association with one member of staff.
DE LA POER: You have just said it again, there were lots of reasons why these babies were dying. That's not correct though, is it, Ms Kelly: none of the care issues were the reason why the babies were dying. The fact that the unit wasn't well led was never identified as a reason that babies were dying.
They couldn't work out what the increase in -- was the cause of increase in mortality from a medical perspective?
KELLY: But when you spoke to the clinicians, they still couldn't articulate the reasons why babies were dying. They -- they associated it with one individual and there were lots of things, lots of elements that came out of those reviews that were quite concerning, competency issues, delays in care, delays in intubation, numerous things that will have contributed to poor outcomes for babies. So -- and I know that's not referred to in the postmortems -- postmortem, but if you put that picture together, it's not -- it's not a good picture. So what I was trying to articulate here was we were doing lots of reviews, lots of analysis and we had reviewed, removed Letby from practice, which was the right thing to do at that time, so it wasn't clear, it wasn't clear, it was a complex picture.
DE LA POER: So do we take from all of that that your position as at 18 March was that the likely explanation for all of these deaths was poor care?
KELLY: Potentially, yes.
DE LA POER: And what medical opinion had been offered that reached the same conclusion that you had?
KELLY: It -- it wasn't just my conclusion. It was the outputs of the reviews that we had done.
DE LA POER: No, no, did any doctor say that poor care was the explanation?
KELLY: Dr Hawdon's report, the outputs of her report talk about sub optimal care in varying degrees across all the cases that were reviewed.
DE LA POER: Did she say that that sub optimal care caused death?
KELLY: I don't think she used those words, but there was -- they were contributing factors.
DE LA POER: Well, Dr Subhedar had been part of the Thematic Review?
KELLY: Yes.
DE LA POER: He had reviewed Dr Hawdon's report and by this time, as you will have known, was saying that there were seven babies that he was concerned about, this is a wholly independent view on behalf of the network from a Consultant neonatologist who had involvement at the start and had involvement just before this?
KELLY: Yes.
DE LA POER: He was not suggesting that the deaths were explained by sub optimal care, was he? And he knew everything you did?
KELLY: It was -- I'm not sure about that and I ...
DE LA POER: Well, can I help you with it because he says he thinks seven babies need further review, so he had not reached that conclusion in relation to those seven babies?
KELLY: No, but he did provide helpful guidance for the Thematic Review which I know some of those babies did get discussed in the Neonatal Network Meetings and no concerns were raised at that time. I recognise later on he wanted further reviews of additional babies.
DE LA POER: But that was the position going in to this referral. You see, let me try and cut through this. You have a clinical background in adult nursing?
KELLY: Yes.
DE LA POER: You were provided with a number of expert opinions by Consultant paediatricians and a Consultant, two Consultant neonatologists, and in particular the network was giving some oversight to this and not a single one of them said in terms to you, or in writing: sub optimal care is the explanation for this. Yet you seem to have reached that conclusion for yourself despite that body of evidence. Why is that?
KELLY: The body of evidence came from Dr Hawdon's review, which does mention sub optimal care.
DE LA POER: She doesn't -- well, let's take Dr Hawdon?
KELLY: I think -- I think she does. But it is
a combination of a number of things because we were looking at so many different elements and the outputs of the Royal College, the outputs of the Hawdon Review, the McPartland Review, didn't point to somebody intentionally harming babies.
DE LA POER: Let's just think about that for a moment. Dr Hawdon concluded that four babies' deaths were unexplained and unascertained, didn't she?
KELLY: There was further review required on those, yes.
DE LA POER: Yes, because she had reached that conclusion. So that is potentially four babies who were murdered; you couldn't exclude that?
KELLY: Potentially yes, there was further review required.
DE LA POER: Dr Subhedar increased the category of potentially murdered babies to seven, didn't he?
KELLY: I think he increased that, yes.
DE LA POER: Yes. You didn't have any basis or sufficient expertise yourself to say that Dr Subhedar was wrong to be worried that seven babies may fall into that category?
KELLY: No, not personally. But -- and we welcomed Dr Subhedar's input to -- and again conversations with probably with Dr -- with Mr Harvey around more babies
being added to that list of further review for further review. But as I mentioned before, all the work that was being done, whether that internally or externally was leading down a path that suggested care was not of a good standard on that unit.
DE LA POER: Well, I would only be repeating myself to point out that none of it said that it was causative so we will move on and we will look at your referral to the NMC, which is up on our screen. One other sentence to ask you about: "Other staff were present on a similar number of relevant occasions"?
KELLY: Sorry, on this same document?
DE LA POER: Same paragraph, final sentence of that paragraph.
KELLY: I believe some of the doctors were on duty at similar times, but not as many as Letby.
DE LA POER: No, no, no. In fact, Letby was associated with nine of the ten deaths on the Thematic Review plus two more in the form of the deaths of [Child O] and [Child P], so at that time her association was 11. The next highest association was Dr Harkness with six but Dr Harkness had left the Trust in March and so there could be no question that Dr Harkness had caused the deaths of O and P because he wasn't even working at the hospital. So just help us with why you are suggesting that other staff were present on a similar number of relevant occasions?
KELLY: I think that was just going over generally what the outputs of that Thematic Review were, there was a staffing analysis attached. I haven't gone into specifics in that sentence so it's kind of a high level sentence, really. But I was aware that some doctors were present but not as many times as Letby.
DE LA POER: Well, doesn't it rather exaggerate the position?
KELLY: Sorry?
DE LA POER: Doesn't it rather exaggerate the position to say other staff were present on a similar number of occasions?
KELLY: That was not written intentionally to mislead people. But doctors were highlighted in the staffing analysis.
DE LA POER: So that's the update post arrest. In fact, when it comes to a referral to the NMC, the NMC found out about the arrest on 3 July and they tell us they contacted you and you made a referral on 4 July 2018. We don't need to bring it up unless you
want to, but the text that is in that 4 July is an almost perfect but not quite lift from your LADO referral from March of 2018; does that sound right?
KELLY: Similar, yes.
DE LA POER: Yes. Similarly, when you are referring Letby to the Fitness To Practise Directorate, do you think that you were putting the concerns against her at their highest?
KELLY: At the time I thought I was articulating exactly what had been going on and I had had regular communication with NMC and it took a while for that to filter through the NMC, I believe.
DE LA POER: Part 8, we are going to look at the involvement of the RCPCH and Dr Hawdon and we start with the amendment to the Terms of Reference. Were you involved in that process?
KELLY: Very briefly. Mr Harvey took the lead on that.
DE LA POER: The word "apparent" was inserted into the Terms of Reference so it didn't just talk about the increase in mortality but the apparent increase in mortality. Was that a word that you suggested should be included?
KELLY: I can't recall that. No, I had very little, very little involvement in that Terms of Reference
development.
DE LA POER: Well, it's just --
KELLY: I can't recall.
DE LA POER: Sorry?
LADY JUSTICE THIRLWALL: Can't recall.
MR DE LA POER: Can't recall, thank you. You see the word "apparent" was also included on 11 July in the Risk Register entry, do you remember?
KELLY: Okay, from the division?
DE LA POER: Yes.
KELLY: Yes.
DE LA POER: We understand from Ms Townsend that that was scripted following a meeting with the Executive Team. Is her recollection correct about that?
KELLY: Yes, I have absolutely no recollection of that because a risk articulated at divisional level would have been discussed at divisional level.
DE LA POER: Well, it might have been brought to the divisional level, having already been written?
KELLY: Sorry?
DE LA POER: It might have been brought to the divisional level having already been written?
KELLY: Potentially, but I -- that would -- we would not have a role as an Executive Team to draft risks that were held on a Divisional Risk Register; that would be
the responsibility of those clinical teams.
DE LA POER: Were you the Executive lead for risk?
KELLY: I was, yes.
DE LA POER: Then of course in July 2016, so this is all happening in July 2016, we had the paper written by you and Ruth Millward, certainly there is both your names at the bottom, called "Position paper", which uses the phrase "apparent increase in the number of neonatal deaths". So again did you have a participation in the writing of that position paper?
KELLY: I commissioned that piece of work and Ruth and some of her operational team pulled all of that information together.
DE LA POER: Do you agree now that using the word "apparent" in July was entirely unnecessary? In other words, by July of 2016, it was well-established that there had been an increase in the mortality rate?
KELLY: Yes, if you look at the data that was being provided.
DE LA POER: Yes.
KELLY: But again, terminology. It wasn't intentionally put there to mislead people.
DE LA POER: Somebody has decided to stick the word "apparent" into the Terms of Reference but you say you can't recall if that was you?
KELLY: I don't recall having much input at all in that report -- the Terms of Reference.
DE LA POER: You had a meeting on 1 September 2016 with the RCPCH and what Ms Eardley told us was that you were particularly supportive of Letby and quite dismissive of the allegation. Is that a description of your behaviour in that meeting that you recognise?
KELLY: No, I was not, I have never been dismissive. We took this very, very seriously, I felt that we had an open conversation with the Royal College team and with Sue Eardley on her first day in the organisation. That was myself and Ian Harvey. I certainly wouldn't say that I was dismissive at all.
DE LA POER: On 2 September there was a meeting where, as we understand it from those who attended, you and Ian Harvey and Tony Chambers were told that a case-by-case review of the deaths needed to take place?
KELLY: From who, sorry?
DE LA POER: From the RCPCH?
KELLY: Oh, right, okay.
DE LA POER: Do you recollect that?
KELLY: I do recollect that, yes.
DE LA POER: They also told you as is recorded in the notes HR process for Lucy?
KELLY: Yes.
DE LA POER: And so does it follow that as at 2 September, you knew that the RCPCH was not able to answer your concerns about Letby or the concerns about Letby?
KELLY: Not fully about Letby, no. Because there was -- we -- they focused on the clinical and operational and management of the unit.
DE LA POER: But did you think they could answer anything about whether Letby had killed babies? As at 2nd --
KELLY: Probably unclear at the time but it was just again keeping an open mind and also gathering as much information as possible.
DE LA POER: It's important to be clear though, isn't it, Ms Kelly, because if at subsequent meetings as we have seen you are telling people that the RCPCH is either inconclusive about the allegation or hasn't found anything to support the allegation it's quite important to know that the RCPCH weren't actually investigating that?
KELLY: I think it was important to get a rounded picture of what was going on through the Royal College review and I think that was just again one part of the jigsaw to see if there was any intentional harm.
DE LA POER: Well, let's just nail it down. Did you think as at the time of the RCPCH reviewers left the site that the RCPCH had investigated whether Letby had murdered babies?
KELLY: Not, not directly, no.
DE LA POER: Well, or indirectly?
KELLY: We didn't know at the time. And actually I think it was the Royal College that offered to meet with Letby while they were on side -- on site. but I think the outcomes of their report was just another piece of information that we were trying to glean around the high mortality.
DE LA POER: They mentioned the HR process. We can see a little more detail in their letter of 5 September, INQ0003120 and over the page, this is addressed of course to Ian Harvey but presumably you would have seen this letter?
KELLY: I think Ian would have shared that with us, yes.
DE LA POER: "HR Investigation. Our understanding is an allegation has been made and therefore a process of investigation needs to be put in place which sets out nature of the allegation and the process you will follow to investigate it." So that is a disciplinary investigation?
KELLY: (Nods)
DE LA POER: The Trust never instituted a disciplinary investigation into Letby, did they?
KELLY: No, we took external legal HR advice and we were struggling to articulate what policy would be applied to do an HR investigation of that type.
DE LA POER: The RCP --
KELLY: Notwithstanding that, this morning we talked about safeguarding and I recognise that there was probably a missed opportunity from a safeguarding perspective, but from an HR, we -- it's not that we ignored that recommendation from the Royal College, we sought external advice to support our decision-making.
DE LA POER: And who -- was this DAC Beachcroft that you are saying --
KELLY: Through Sue Hodkinson, the HR Director, yes.
DE LA POER: Are you satisfied that what was communicated was that the Royal College had said a disciplinary procedure needs to be instituted to address an allegation of harm by a member of staff?
KELLY: We knew that we needed to look at whether an HR investigation was required and that's why we -- we struggled internally to understand how we would do that. That's why we took the legal advice externally.
DE LA POER: Did you back to the RCPCH to ask for more information about what they meant?
KELLY: I didn't personally, no.
DE LA POER: You see, because do you agree at later meetings it is suggested by members of the Executive that the RCPCH had made recommendations which the Trust had followed?
KELLY: Yes.
DE LA POER: But of course that was a recommendation made by the RCPCH which the Trust didn't follow?
KELLY: We did follow it to an extent because we had -- we had further conversations about that particular action --
DE LA POER: That's --
KELLY: -- and guidance given to us externally.
DE LA POER: They recommended you do a disciplinary process. You didn't do a disciplinary process, therefore surely you didn't follow the recommendation?
KELLY: We didn't ignore it. We sought external advice.
DE LA POER: But you didn't follow it, did you?
KELLY: We didn't follow it to the letter, no.
DE LA POER: Dr Hawdon's report recommended a local forensic review in four cases. What steps were taken to institute that local forensic review? We can take that down --
KELLY: Sorry, where --
DE LA POER: Dr Hawdon did a report, I'm sorry, we had covered all of this already. I just wanted to ask a follow-up question about it. In that report she identified five cases, initially four, after the postmortem review --
KELLY: (Nods)
DE LA POER: -- that required local forensic review. That was her conclusion. What was done about that?
KELLY: That action sat with the Medical Director and my understanding is that further communication was made with forensic pathologist from Alder Hey is my understanding, to do a further review of those cases.
DE LA POER: Firstly not a forensic pathologist but if you are referring to Dr McPartland.
KELLY: McPartland.
DE LA POER: But that was always part of the original requirement that a pathologist look at the cases?
KELLY: Yes.
DE LA POER: So that was baked in. Once that review had taken place, a local forensic review was required according to Dr Hawdon. The Inquiry has seen no evidence that anything was done so far as that's concerned, just giving you the opportunity to indicate whether anything was done?
KELLY: I am unsure of that. I wasn't close enough to the detail. That would have been Mr Harvey that would have instigated that. I'm not sure whether that actually took place or not.
DE LA POER: The Trust received the RCPCH report on 28 November of 2016. Included in the email to Mr Harvey was a suggestion it should be for wider dissemination amongst those who contributed. We can bring up the detail but you may be able to take it from me that within the RCPCH report there were recommendations to CDOP and to the transportation and Neonatal Network, weren't there?
KELLY: Yes.
DE LA POER: We can see from the report and we can look at it, but you may be able to take it from me that they don't provide an explanation for the increase in mortality rate, do they?
KELLY: From the -- sorry, from which report?
DE LA POER: The RCPCH report?
KELLY: Yes, the Royal College, no.
DE LA POER: No. And they make a number of what are termed immediate recommendations?
KELLY: Yes.
DE LA POER: So that's on 28 November. On 21 December, you wrote to NHS England, INQ0008077. Just familiarise
yourself with this letter. We can see you mention Dr Hawdon's work, the neonatologist from London. And you say that: "Obviously the safety of our unit is paramount. From the day the Review Team left the Trust they assured us there were no immediate actions or concerns." I mean, in fact they had recommended a number of immediate steps, hadn't they?
KELLY: Yes. But also we have since learnt from this Inquiry that the Royal College had concerns whilst they were on our hospital site and didn't raise anything with us.
DE LA POER: We just need to focus on this. the report says in terms it lists A to F immediate recommendations. That is an immediate action. You had received that report 21 days before this and yet you appear to be telling NHS England that there were no immediate actions from the report. Why are you saying that?
KELLY: I think I am probably looking at that as if it were a CQC inspection, so meaning whilst they were on site there were no immediate actions, although that will have been listed in the recommendations as to what we needed to do first. So potentially that was misleading, but not intentionally.
DE LA POER: Just consider this. I mean, that report could have been sent to NHS England at this stage, couldn't it? It was all finished and finalised, there had been some recommendations about Dr Hawdon but that report itself was a finished article as at 28 November, do you agree?
KELLY: It was a finished article but I think because there was further deep dives required we wanted to make sure that we had a fuller picture. So that was discussed, that wasn't -- I wrote this letter but that wasn't my decision, it was a collective decision from the Executives.
DE LA POER: If you had written to the NHS England and said there are a number of immediate actions for us from this report, that would have immediately provoked them to say we need to see the report, don't we?
KELLY: Potentially, yes.
DE LA POER: Yes, and so by telling them that there were no immediate actions you were effectively able to delay when you had to give them the report?
KELLY: That was not done intentionally. I think I meant there as in when they were on site there was nothing that they brought to our attention that we needed to immediately address but I recognise the way that that is written it probably -- it looks like it's
referring to the actual report recommendations.
DE LA POER: Now, the report was published on 7 February 2017. Here we are talking about the dissemination, not the confidential version. That means that it had been held and withheld from CDOP who had a recommendation that the Neonatal Network and indeed the Consultants on the unit in terms of their opportunity to consider how they might improve their practice; is that fair?
KELLY: Yes, I think it's, I think it's recognised from the Executives' perspective that the delay in sharing it with the paediatricians wasn't good enough at the time. We should have done that in a more timely way.
DE LA POER: One explanation which I would like you to consider and comment on is that it was deliberately withheld to the last possible moment so that the paediatricians didn't have an earlier opportunity to point out that it didn't address their concerns?
KELLY: No, not at all.
DE LA POER: Well --
KELLY: We recognised that the communication of the actual report could have been better but that was not done intentionally from a Consultant perspective.
DE LA POER: Could have been better?
KELLY: Could have been better, yes.
DE LA POER: It put patient safety at risk by withholding it, didn't you?
KELLY: In -- in not sharing actions, you mean?
DE LA POER: Yes.
KELLY: Potentially, but that wasn't -- that wasn't the intention at the time.
DE LA POER: Again, a straightforward question: it put patient safety at risk not sharing that report as soon as it was available, didn't it?
KELLY: You could say that, yes.
MR DE LA POER: My Lady, I have a little further to go but I wonder given the time we have been going about an hour and a quarter whether we could take a break?
LADY JUSTICE THIRLWALL: Yes, certainly. We will take 15 minutes. So we will come back just before 10 past 3.
(2.53 pm)
(A short break)
(3.10 pm)
LADY JUSTICE THIRLWALL: Sorry to keep you all waiting. Mr De La Poer.
MR DE LA POER: Ms Kelly, my penultimate topic is the grievance procedure. We will start with Dr Green. You tell us in your
witness statement that you recognise it would have been better if the investigator had been entirely independent from the hospital; is that right?
KELLY: On reflection, yes.
DE LA POER: Is that because this involved an assessment of the personalities of people who Dr Green would know?
KELLY: Yes.
DE LA POER: We turn to Ms Weatherley. Are we correct to understand that you were responsible for selecting Ms Weatherley?
KELLY: Not directly. I contacted a chief nurse who I used to work with and asked her for advice of somebody that could help with an external investigation.
DE LA POER: What Sir Duncan Nichol has said the fact that you chose a nurse from somewhere you had worked might create the perception of not being entirely fair, that is his perspective?
KELLY: At the time --
DE LA POER: Do you have a comment upon that?
KELLY: At the time I thought it was an appropriate move. I didn't know Annette Wetherby -- Weatherley so it was somebody completely independent so I just went to a previous employer just to get access to get somebody to do it quickly so that we wouldn't be having long delays.
DE LA POER: Bearing in mind that there was by this stage, September, some tension between the doctors and the nurses --
KELLY: Yes.
DE LA POER: -- should it have been somebody who was neither a doctor nor a nurse who was adjudicating on this?
KELLY: In, yes -- looking back in hindsight, that might have been a good idea.
DE LA POER: Because whether or not this happened there is at the very least a risk that a nurse would side with -- that there would be a perception that a nurse would side with somebody from her profession?
KELLY: Potentially but it's not unusual in a grievance process that you would have somebody from the same profession hearing a case.
DE LA POER: Now, you were interviewed as a witness in the grievance, weren't you?
KELLY: Yes.
DE LA POER: The 20 October 2016, we will just bring up some of the things that you said to Dr Green, INQ0002879 and we will go to page 21. So we begin towards the bottom with you saying that SB had pinpointed an individual nurse. In fact, it was Eirian Powell who had first identified the nurse to you,
hadn't she?
KELLY: I think it was a combination of the -- the two of them working together at the time, yes.
DE LA POER: It was Eirian Powell who had first identified the nurse to you, wasn't it?
KELLY: In the email trail that we have previously looked at.
DE LA POER: Yes.
KELLY: Yes, but I know it was a piece of work that Steve, Stephen Brearey was also part of.
DE LA POER: And you go on to say that: "There was a discussion involving Karen Rees to find out if there were any issues ..." Then this: "In the meantime, SB conducted his own mini review of the cases and analysis of staff on duty at the time of deaths." Is the mini review a reference to the Thematic Review?
KELLY: I think so, yes.
DE LA POER: So the first thing is that wasn't --
KELLY: I'm not sure, to be honest.
DE LA POER: Well, Dr Brearey didn't conduct the Thematic Review on his own, did he?
KELLY: No.
DE LA POER: No. In fact there was another Consultant from the Trust, someone from the network, a number of nursing staff and someone from the Risk Department?
KELLY: I suppose what I meant by that was he was actually leading it because he instigated it, so --
DE LA POER: You see, one way of --
KELLY: It was collective, it was collective, but it reads that he did it on his own.
DE LA POER: Yes, one of the ways of reading both of those things is that Dr Brearey is out on a frolic of his own here?
KELLY: Is what, sorry?
DE LA POER: He is out on a frolic of his own, that he is acting on his own making these assertions, that is one interpretation. Can you see how that might be understood in that way?
KELLY: Yes.
DE LA POER: It's -- rather than saying that it was the joint conclusion of the nurse manager and Dr Brearey that Letby was identified as having an association, rather than saying that a number of others were conducted in the Thematic Review and the analysis of staff on duty at the time of deaths, you are putting this all on Dr Brearey?
KELLY: I think because he was the clinical lead he
was leading on a number of pieces of work, so that's probably where I was coming from in terms of he was the clinical lead, he was expected to oversee and lead some of those pieces of work.
DE LA POER: Page 22, top: "LL was on duty but not always allocated to the particular baby. There were lots of indirect links being made to one individual but there was no other rationale for it." There was a rationale, wasn't there, as you knew, which is that she was identified as being associated and after all of the investigations that were done, no clinical cause could be identified, so there was a rationale?
KELLY: There wasn't a clear rationale. There was an association with Letby and as I mentioned earlier there was an association with issues with care as well.
DE LA POER: Well --
KELLY: And also other members of staff.
DE LA POER: Why were you not, when describing what the Consultants' position was, stating it as they had stated it to you?
KELLY: Can you repeat that, sorry?
DE LA POER: Yes, the Consultants -- we will start at the beginning. The Consultants had told you, and we have been through all of this, that there was an increase, unexpected, that babies who were collapsing who shouldn't have, that there was a pattern that had been noticed in terms of association. Of course by this stage we had the fact that that pattern was at night and that she was then moved on to days and the pattern stopped. Those were all the things that had been said before this meeting to you by the Consultants and yet you appear to be characterising their position as a lot of indirect links being made to one individual but no other rationale. I suppose one way of saying it is do you agree that is not a fair characterisation of their position?
KELLY: I suppose it could have been -- I could have articulated in a little bit more detail to give context.
DE LA POER: Well, it is quite dismissive of their position, isn't it?
KELLY: Not intentionally, I think throughout this process we were listening to both sides all of the time there were numerous discussions with the clinicians. But the wording of how it's articulated there probably doesn't give the full picture.
DE LA POER: Well, it's suggesting that there is no rationale for it when in fact they had given you
a rationale. So it is a mischaracterisation of their position, isn't it?
KELLY: I think when you are going back to what we talked about before the break, which was the numerous reviews that had been undertaken, there were lots of things to consider.
DE LA POER: So just focus. This is you summarising for Dr Green what the Consultants' position is?
KELLY: Yes, and that could have been done in a bit more detail.
DE LA POER: Well, it is a mischaracterisation of their position, isn't it?
KELLY: I wouldn't put it in those terms. But I could have given more detail.
DE LA POER: And you have said there are no significant concerns about her, no red flags, no themes, or trends. Well, some themes had been identified, hadn't they, in particular as far as she was concerned the fact that the collapses were at nights then she was moved off nights and the pattern stopped. So it is factually inaccurate to say no theme or trend had been identified, isn't it?
KELLY: A few more elements of detail would have been helpful there.
DE LA POER: That is -- that is a false statement, isn't
it, to say no themes or trends?
KELLY: I think that was -- that was -- I was responding in the context of -- well, I should have I should have done more -- I should have articulated more detail around that. It is misleading.
DE LA POER: And false?
KELLY: You could say potentially false. Yes.
DE LA POER: Then we have what you say about the RCPCH, so we need to move to one-third of the way down. Did anything come out of the report: "Confirm nothing significant as far as Lucy"?
KELLY: Sorry, what paragraph are you at?
DE LA POER: It's one-third of the way down?
KELLY: Oh, yes.
DE LA POER: "Did anything come out from the report?" "Confirm nothing significant as regards Lucy. The report is only just in. It is a draft report and we are awaiting forensic investigation of the medical notes of the cases involved." So that is a reference to the RCPCH and Dr Hawdon. But you knew, didn't you, when you uttered those words, that the RCPCH had not investigated whether Letby was responsible?
KELLY: My understanding was not directly, no. But part of the Royal College review was to look at anything
clinical or management-wise that was untoward.
DE LA POER: That is a misleading statement from you, is it not, "confirm nothing significant as regards Lucy", in circumstances where the full picture is that it was not investigating Lucy?
KELLY: I think we are just trying to keep an open mind at the time with the Royal College review --
DE LA POER: Is it a misleading statement?
KELLY: Pardon?
DE LA POER: Is it a misleading statement?
KELLY: It is misleading, yes.
DE LA POER: Then if we look further down, about two-thirds of the way down: "The original plan was supervision but due to staffing levels, this wouldn't be possible, so the decision was made to redeploy Letby to another department, a non-clinical area, while the review was undertaken. AK and SW did this to protect LL." Now, in fact, moving Letby was not solely for the reason of protecting her, was it?
KELLY: In circumstances where we need to take a member of staff out of clinical practice, because of an incident or a situation, it's not good to keep that individual in that environment should anything else happen.
DE LA POER: Ms Kelly, just please focus upon my question. Letby was not moved solely to protect her, was she? There was more to it than that?
KELLY: Yes, because as time went on we realised that there was -- we needed to investigate more about what was going on so we needed to remove her from clinical practice and the Consultants were concerned about that.
DE LA POER: So why aren't you telling Dr Green that Letby was moved both for her own protection and also the protection of patients?
KELLY: That was a given. That was a given. And that's --
DE LA POER: But you say it's a given. It all starts to look like the Consultants' concerns don't have any real basis to them. You have only moved her to protect her from them, you have only -- the Royal College hasn't found anything. There's no rationale for their position. I mean, these are cumulative points in your interview that I would just like to give you the opportunity to comment upon whether or not that is in fact the impression that you are setting out to create here?
KELLY: That wasn't the impression at the time. Again, lots of things going on. We were listening to the Consultants. In fact, they were pleased I think
that we had taken Letby out of the clinical area.
DE LA POER: Well, they were pleased because they thought patients would be safer?
KELLY: Yes.
DE LA POER: But you are not articulating that here?
KELLY: I suppose I would say that that's a given for me taking her out because of patient safety but I haven't articulated it there in my interview.
DE LA POER: Now, at the bottom we can see that there were no immediate actions by the external review. In fact, one of them was to start a disciplinary process, wasn't it; that was one of their actions?
KELLY: Yes.
DE LA POER: You don't tell Dr Green that, do you?
KELLY: No, not there. Although I'm not sure whether Dr Green had sight of the Royal College report, I am unsure of that.
DE LA POER: You are here talking about it, you are on the one hand saying that there were no immediate actions but in fact there was an immediate action and that was to start a disciplinary process. So that just isn't a true statement, is it?
KELLY: I think going back to what I said before when I said "no immediate actions" I kept referring to when they were on site there were no immediate actions as
opposed to the list of actions that were contained in the back of the report and I recognise that's misleading.
DE LA POER: Well, it's --
KELLY: But the HR -- the HR element we did seek advice because that was a conversation with myself and Sue Hodkinson, the director of HR at the time, and we were given advice externally.
DE LA POER: What you should have said to Dr Green was there was a recommendation that we commence disciplinary proceedings but we have decided not to do that. That is the true position as opposed to "no immediate actions"?
KELLY: That isn't a true reflection of what you have just articulated so it could have been more detailed, yes, I -- I accept that.
DE LA POER: Right at the bottom, you say the Terms of Reference For external review panel were not about an individual but they were informed of the concerns raised about an individual by Ian Harvey. That's a partial picture, isn't it, because while it is true that they were informed about it, they in fact said that they couldn't deal with it?
KELLY: I'm not sure of the detailed conversation between the lead for the Royal College and Mr Harvey.
DE LA POER: Well, they told you that on 2 September, that they could not investigate your concerns?
KELLY: We felt we needed -- we felt we were being transparent with them and said there was an issue that had been raised by the Consultants about an individual, just to give them some context of them starting their review in our organisation.
DE LA POER: So again one impression for your comment is that Dr Brearey is off on a frolic of his own. You brought in the RCPCH. They know all about Letby. They haven't found anything. We only had to move her because it was for her own protection from allegations. I mean, that's -- and the Consultants don't have a rationale for their position. That is what we have looked at, each one of these points. Just looking at what you were actually saying there and the choices that you were making about what you did and didn't say, were you trying to undermine the Consultants when you were speaking to Dr Green?
KELLY: No.
DE LA POER: Can you offer --
KELLY: But what I do recognise is that I could have clearly -- more clearly articulated the position.
DE LA POER: Well, you could have said things that weren't misleading, do you mean?
KELLY: They were not intentionally misleading.
DE LA POER: You could have avoided saying false things, is that what you mean by "providing more detail"?
KELLY: I think what I said and what I didn't say, you know, I have reflected on that and I probably could have said more, but again none of that was done intentionally.
DE LA POER: Page 24. Let's just have a look at how you characterise the Consultants, where that asterisk is. Yes: "We will need lots of support. From AK professional perspective sees no issues. There is an issue around Consultants fuelling the situation." Now, do you think that the word "fuelling" is and I don't intend a pun here, inflammatory?
KELLY: It's probably not a good choice of words. But at the time which is why a grievance was raised in the first place, some of the Consultants were exhibiting poor behaviours. And I don't think that helped the situation. Also recognise having a grievance process in the middle of all the other reviews that we were undertaking with their support probably didn't help the relationships with the Consultants.
DE LA POER: We can see, finally, that it was confirmed with you that there is no investigation into Letby
herself, which again was factually correct but omitted the fact that such an investigation had been recommended; do you agree?
KELLY: It -- it was recommended and we didn't ignore it and as I mentioned before, we sought legal advice --
DE LA POER: Dr Green --
KELLY: -- to guide us what we could or couldn't do at that time.
DE LA POER: Dr Green wouldn't know any of that, would he?
KELLY: No.
DE LA POER: On its face, it simply looks as if you don't think there's an allegation into Letby worth investigating?
KELLY: You could read it like that, yes.
DE LA POER: Is that the way you intended it to be understood?
KELLY: No.
DE LA POER: Of course, what we can see from the earlier entries is: "The case will be closed when we get LL back on the unit". What you were telling Dr Green across this interview was that you expected that Letby would return to the unit?
KELLY: After this process, and doing an assessment
after all of the information that was gathered around all of the reviews we needed to make an assessment of whether she was going back on the unit.
DE LA POER: Well, do you think it was a bit premature to be saying that when you still hadn't had the outcome of all of your --
KELLY: It probably was a little bit premature. We needed to get the full picture but it was complex, it was complicated, and there was an individual in the middle of this as well as a group of Consultants who were upset by this process.
DE LA POER: You see how telling Dr Green that Letby would be going back on the ward again is communicating that you don't think there is anything in the concerns that are being investigated?
KELLY: I think that was on the back of all the other elements that had come out of the reviews and was leading down a clinical route as opposed --
DE LA POER: Can you just focus on my question, please. Do you agree that that is what the impression you are giving is; that you don't think there's anything in the concerns because you are simply saying regardless of the fact there is ongoing investigation, she is going back on the ward?
KELLY: It was probably premature for me to say that.
But the view that I had at that time was that it was more of a clinical issue than an individual with her.
DE LA POER: Now, saying it to --
KELLY: Individual issue.
DE LA POER: Saying it to Dr Green is one thing. Telling the person concerned that they are going back on the unit would be quite another, wouldn't it?
KELLY: Yes.
DE LA POER: INQ0014313. Now, this is whilst the grievance procedure is ongoing and this is a summary of a discussion you have had with Letby. The letter is dated 15 November 2016 and we can go straight to the top of page 2. We can see here: "Alison explained that further to our previous discussions it was important that we made you aware of a change that had been agreed in regards to the decision-making process for your reinstatement back in to your role in the neonatal unit. "As we had previously discussed, the decision had been previously agreed to sitting at board level. However, it has been agreed that it should be delegated to Alison as your Professional Nursing Lead. Alison explained she had no concerns in returning you back to the neonatal unit and that we were going to plan for this with Karen over the coming weeks." We can also see that at the time it was acknowledged that the grievance process still provided an opportunity to share concerns. Now, the grievance process was about how you and the other Executives had treated Letby; is that right?
KELLY: I think there's two parts that's how -- how she was aggrieved as to how she was removed from the unit, but also linked with that she also was very unhappy with the behaviours of the Consultants.
DE LA POER: So the grievance process was about how the Executives had removed her from the unit?
KELLY: It's in the way that she was removed, yes.
DE LA POER: Here is you, a witness in the grievance, whilst the grievance is going on, having a meeting with her telling her that she is going to go back on the unit; do you see that that?
KELLY: I recognise that as a conflict yes.
DE LA POER: Yes, and inappropriate?
KELLY: Yes. I have reflected a lot on the involvement of myself and the direct conversations I had with Letby and again if -- if I knew then what I know now, that would not be my normal practice.
DE LA POER: You are also --
KELLY: Sorry --
DE LA POER: Please --
KELLY: I think what the problem was at that time was the way in which concerns were raised as in from -- from the clinical unit directly to Executives caused us a problem because it didn't go through the usual governance routes. So by the time it got to us or when it got to us we kind of as an Executive Team took on the actions ourselves and in hindsight I think that was probably inappropriate in some cases and this is probably one of those examples.
DE LA POER: So your concern appears to be that the Consultants, having raised their issue with among others the Executive Lead for Safeguarding, and one of the designated officers for Speak Out Safely, that that was the problem?
KELLY: No, not the problem, but they should have gone through -- I'm not sure why they didn't go through the usual route which is through their divisional structure, up through the appropriate committees up to Executives. Anyone can come straight to an Executive, that's absolutely fine. But I think what we recognise is because it came to us directly what we should have done is -- is push it back down the organisation and there's a tier of individuals that sit beneath the Executives that probably felt left out of the loop.
DE LA POER: The final point about this is self-evident.
You were telling Letby before all of the investigations had been concluded, Dr McPartland hadn't even been instructed by this stage that she was going back on the unit.
KELLY: That was premature.
DE LA POER: Well, was that because you had closed your mind to what those reports might reveal and you were just operating on the basis you had a single objective which was to get her back on the unit?
KELLY: It wasn't a single objective. It was probably premature me having that conversation with her at that time when I knew that all of the other pieces of information hadn't been concluded. But again, going back to what I said before, we were keeping an open mind and tried to not have the doctors versus nurses scenario which ultimately did end up feeling like that.
DE LA POER: But telling Letby that she was going back on the unit before the investigation was complete is the very opposite of having an open mind, isn't it?
KELLY: I think it was premature of me to have said that directly to Letby, yes.
DE LA POER: Is it the very opposite of having an open mind?
KELLY: I think I disagree with that. I think there
was a lot going on and I suppose the conflict for me was I was the Professional Lead for Nursing as well which probably wasn't helpful in that conversation that we were having there. But yes, I have reflected on that and it could have -- it could have been done differently in light of the other investigations that were going on.
DE LA POER: Now, you, as you have told us, were a witness in the grievance. You were sent a copy of the draft outcome letter, weren't you?
KELLY: I think I recall that, yes.
DE LA POER: And you went through it and you made comments upon it, didn't you?
KELLY: I'm not sure. I don't know if that's in my statement if I made comments on it or not.
DE LA POER: INQ --
KELLY: I don't recall.
DE LA POER: -- 0056172. So if we can see on this first page there are some strike-throughs, this is the version, as we understand it, that you sent back, having received a copy.
KELLY: Okay.
DE LA POER: If we scroll to page 2 [not found], we will see section 7, where, as we understand it, you have written: "I conclude I fully ..." Sorry, the original text said: "I conclude I fully support the conclusions that Chris Green came to and uphold this part of the grievance." You added: "Are we adding in Chris' conclusions?" Do you have any recollection of having done so?
KELLY: I don't understand the context of what that was. No.
DE LA POER: Well, as we understand it and you must have a proper opportunity to consider this, but now is not the time but let me tell you what we understand the position to be: it was sent to you by HR?
KELLY: Okay.
DE LA POER: That you made comments upon it and sent it back before the final version was published?
KELLY: Okay.
DE LA POER: Following those comments, a section was added here. Now, in fairness so I acknowledge the full picture, the evidence of Ms Appleton-Cairns was that Mr Green -- Dr Green's conclusions were always going to be added in there, but nevertheless it would appear that you, if we have understood it correctly, were making the suggestion that Dr Green's investigation report conclusions were added to this report.
Do you have any recollection of having done this at all?
KELLY: No, I would not normally be very involved in grievances, that would sit with HR so I really don't recall that.
DE LA POER: If it turns out to be the case -- and we will send the references over to you --
KELLY: Please, yes.
DE LA POER: If it turns out to be the case that you have commented upon the draft outcome, would you agree now that that would be inappropriate --
KELLY: Yes, I would.
DE LA POER: -- given that you were one of the people about whom the grievance was made and you were a witness in it?
KELLY: Yes, I would agree with that.
DE LA POER: Now, one of the conclusions of Dr Green that is added in, it is the first part of what is added in and I am sure you can recall this, is a comment upon the fact that the doctors had not acted honestly by reference to good medical practice. Do you remember that passage in the outcome letter?
KELLY: No, just repeat that, please?
DE LA POER: Well, it may just be easier if I show you, INQ0003158, page 2. This is the final version and we
can see that section 7 has now been populated. The conclusion about the Trust's Speak Out Safely appears there and we can then see: "However, I do not find the Consultants' concerns when reiterated to the Executive Team were clear, honest and objective. GMC guidance." That is how the final version after, as we understand it, it has been sent to you, you have made comments upon it and it's come back.
KELLY: Okay. I don't recall. What question are you asking, sorry?
DE LA POER: Well, the question is: "Can you see how that passage there criticising the Consultants by reference to their regulator is greatly increasing the temperature of this process?"
KELLY: I acknowledge it probably wasn't helpful to use that terminology.
DE LA POER: Was it your intention that that found its way into the final report?
KELLY: No, I absolutely don't recall making amendments to that document.
DE LA POER: Well, as I say, we will send the references and we will be transparent about your response?
KELLY: Yes.
DE LA POER: My final part, Dr Jayaram.
On 16 March 2017 there was a directors' meeting and I will bring up the notes, INQ0003344. So this is -- firstly, just familiarise with it, we can see your initials at the top. In fact, we have looked at this meeting previously but we are going to focus upon another part of it. At this time, so that everybody is anchored, this was the time at which there was discussion about whether Dr Jayaram would engage in mediation with Letby --
KELLY: Okay.
DE LA POER: -- where the Consultants had been required to write their letter of apology, that happened a few weeks earlier and we know that shortly before this the letter was written or the email was written by Mr Harvey that we have looked at already mentioning the GMC so that is all the context to this. If we go to the bottom of page 2, we can see that there is discussion about something that Dr Jayaram had said to Sue Hodkinson the day before, and we can see a comment that she makes, we are going to come to the substance of it in a moment but "Ravi cannot see perceived gap between doctors and nurses". Do you see that entry, about two-thirds of the way down?
KELLY: Thank you. Yes, I have seen that.
DE LA POER: So that is part of what Ms Hodkinson -- the meeting comes back and forth from what Dr Jayaram has said the previous day but that is one of the things that Ms Hodkinson is reporting to the group, effectively that he perceives some sort of gap between the way doctors and nurses are being treated is one interpretation of that. So this is just a repetition by Ms Hodkinson about what's been told by Dr Jayaram and we can see that further down, Mr Chambers is recorded as suggesting that you, AK and Sue, to have conversation with Ravi. So it appears that there's been some discussion in the meeting about some disquiet expressed by Dr Jayaram and a proposal being made by Mr Chambers is that you and Ms Hodkinson have a conversation with Dr Jayaram. So far, a fair interpretation of these notes?
KELLY: Yes, except, I didn't -- I didn't -- I wasn't involved in conversations with Dr Jayaram.
DE LA POER: Well, that's the suggestion made --
KELLY: The suggestion there, yes, but I think it might have been Sue Hodkinson and Tony Chambers, potentially.
DE LA POER: Well, we are just working our way through, that is the suggestion made. If we go over the page to page 3, we can have a look a third of the way down. And we can see -- in
fact it is a quarter of the way down: "Sue, three deaths. Lucy at cot. Real concerns. Lucy moved valves aka why not before serious allegations." Then just to complete this: "Sue to check with Ravi re these comments." Then just we have Mr Chambers saying: "Lucy cannot go back to the unit. They want us to throw Lucy under a bus." And then your challenge "She should go back". So that's that part of the discussion?
KELLY: (Nods)
DE LA POER: So let's break it down. Is it right that Ms Hodkinson was reporting to the Executives that Dr Jayaram had raised three specific cases in relation to Letby's behaviour?
KELLY: I believe so at the time, yes.
DE LA POER: We don't have a full transcript of what he said but it appears that he is referring to Letby being beside a cot at one point?
KELLY: (Nods)
DE LA POER: And that Letby moved valves?
KELLY: Yes.
DE LA POER: That is what's captured here?
KELLY: Yes.
DE LA POER: He's here, among other things, talking about his experience of [Child K], isn't he?
KELLY: Yes.
DE LA POER: As you say, these are serious allegations. Your first reaction when Mr Chambers suggests how you should respond is that Letby can go back to the unit, despite the fact that you have just had reported to you three specific cases, is that what these notes mean?
KELLY: No, I think what I meant there by "the challenge" is I will be challenged if she goes back on the unit.
DE LA POER: Let's have a look --
KELLY: We had significant pressure from the Royal College of Nursing at that time with all the grievance, et cetera, that were supporting Lucy.
DE LA POER: Well, Mr Chambers responds: "Okay, she goes back and something happens." So that would be exactly what you would expect him to say if you had said she should go back, do you see?
KELLY: Yes, I can understand why you say that but I did not refer to it like that and I think at that time we were really shocked that Dr Jayaram hadn't brought any of these concerns to us before and then all of a sudden he was saying the detail around Baby K [Child K]. So we
were quite shocked and horrified and that is when Sue Hodkinson and Tony Chambers went to see Dr Jayaram; it wasn't me.
DE LA POER: Well, there was an explanation, wasn't there, being offered within the meeting for why Dr Jayaram had not said it before; do you remember?
KELLY: Sorry, I don't follow?
DE LA POER: Just look up towards the top: "They feel like battered wives. Execs is abuser." So that's what you were being told just before that piece of information was imparted. So you have had the shock of the fact that: why now? At that point, doesn't this require action?
KELLY: It does and there was action taken after that. I think that terminology at the top is -- is not the best. Like I said before, there were numerous conversations with the clinicians in trying to support them and in reflection we probably could have done more to support them because they were feeling very upset on the back of the grievance, et cetera. So it wasn't the best situation at that time.
DE LA POER: It's essential to get a full account from Dr Jayaram, isn't it, if you are to understand exactly what he's saying?
KELLY: Yes, and I believe that's where Sue and Tony went to speak to him afterwards.
DE LA POER: And who is it you say went to speak to him?
KELLY: Sue Hodkinson and Tony Chambers, I believe, it wasn't me.
DE LA POER: What did you understand to be what he was saying to them after that meeting?
KELLY: I'm not sure of the detail. But we were quite shocked at what Sue had shared with us at that meeting.
DE LA POER: That's then. Having got over your shock, realised this is a serious allegation, wasn't it absolutely imperative for you as the Executive Lead for Safeguarding to have a full understanding of what Dr Jayaram was saying?
KELLY: I think we discussed that as a team and it was felt that Sue and Tony go and speak to him.
DE LA POER: So when they went to speak to him after that had happened, did you say to them: okay, what did Dr Jayaram tell you? I want to know as much detail as possible?
KELLY: I am unsure as to the level of detail that they discussed with Sue and Tony.
DE LA POER: Given how significant this is, and you spent some time in your witness statement remarking upon the significance of it, don't you?
KELLY: (Nods).
DE LA POER: How is it that sitting there now you don't actually know what happened to follow this up?
KELLY: Again at the time I -- I don't think any of us were considering -- and I mentioned this earlier this morning, as a safeguarding concern what we were concerned about at that time as well is why Dr Jayaram was suddenly telling us about what he saw or he didn't see that was really significant that he didn't bring to our attention before.
DE LA POER: You have got an explanation for why he may have delayed but whatever the reason for his delay, don't you need to completely understand what it is that he is saying so that you can act upon it?
KELLY: Yes, should have got the information but I can't recall what information came back after the meeting.
DE LA POER: Because what you tell us is in your witness statement is if you had been told that back in February 2016 that somebody was interfering -- a nurse was interfering with valves, is you would have immediately taken steps to have them suspended?
KELLY: Yes, yes, action I would have taken. But she was off the unit at this point so that risk had been removed.
DE LA POER: Yes, but your reaction when you are told
appears to involve absolutely no further progressing of this concern?
KELLY: I think we discussed -- as those notes suggest we discussed it as an Executive Team and it was agreed that Sue and Tony go and speak to Dr Jayaram.
DE LA POER: Was it also agreed that once they had spoken to him that was the end of the matter?
KELLY: I don't think so, but I don't recall what the feedback mechanism was at the time.
DE LA POER: Well, you have had a chance to look through all the notes. It never comes up again at any future Exec meeting, does it?
KELLY: I don't recall, no.
DE LA POER: Why would you not be at the next Exec meeting saying: so what happened with that very serious allegation that Dr Jayaram has made? Why don't we see that?
KELLY: I don't know. I can't answer that.
DE LA POER: Is that because you just weren't taking it seriously?
KELLY: We were absolutely taking things seriously.
DE LA POER: Where is the evidence that it was taken seriously?
KELLY: I -- I am unsure at that time what we did with that information.
DE LA POER: You see, there were plenty of opportunities to tell people about this event, weren't there? Let me give you some examples so you don't answer in a vacuum. We know that Mr Harvey prepared a summary document on 3 April for, it would seem, Mr Medland, the barrister?
KELLY: Okay, yes.
DE LA POER: Mr Cross prepared a document called "Rationale". We know both of those were sent to Mr Medland. Neither of those documents contain any reference to Dr Jayaram's concerns which were articulated at this meeting only two weeks earlier. Now, obviously they are the authors of that but it would appear that you never said "we really need to include this eye witness evidence that we have from Dr Jayaram about valves being adjusted"; why didn't you do that?
KELLY: I -- I wasn't involved in any of the -- of pulling together that document for Mr Medland.
DE LA POER: When you spoke to the NMC on 18 May, a conversation we have already gone over, you could have said "we have eye witness evidence from one of our Consultants of valves being adjusted", but you didn't do that. Why not?
KELLY: I don't know.
DE LA POER: When you refer the matter to the LADO, on 27 March, and you are summarising what you think the concerns are, you don't say: a Consultant has some eye witness evidence about valves being interfered with, do you?
KELLY: No and I don't recall the feedback mechanism from that meeting about what further information he shared.
DE LA POER: So is it the position you just forgot about it?
KELLY: I -- I can't recall. Honestly, I can't recall.
DE LA POER: Well, is there any other credible explanation for why -- and we will just headline them -- we have got the NMC, LADO, the NMC again when you make the referral on 18 July, your police statement of 15 February 2019, your Facere Melius interview on 23 July 2020, you don't mention this incident in any of those when characterising what the Consultants have said to you? Can you offer any explanation for that?
KELLY: I haven't got an explanation, I don't know, I don't recall what further follow-up action we took as an Executive Team at that time once that information had been shared.
DE LA POER: Is that because you all just ignored it?
KELLY: No, we didn't ignore it, Sue and Tony went to see Dr Jayaram straight away and I'm not sure what the outcome of that meeting was.
DE LA POER: Are you even able to say that they spoke to him about it?
KELLY: I believe they did but that would be for Sue and Tony to articulate.
DE LA POER: Well, you can tell us what you know. What makes you think that they did speak to Dr Jayaram about it?
KELLY: I have made an assumption that they did and that was the action from that Executive meeting.
DE LA POER: Does it follow from that that you never asked them: what did Dr Jayaram say?
KELLY: I don't recall.
DE LA POER: Is there any record of you anywhere asking: what did Dr Jayaram say?
KELLY: I -- I cannot find any record of that, no.
MR DE LA POER: Ms Kelly, thank you for answering my questions. Those are all that I have. My Lady, I wonder if now would be an appropriate moment to turn over to Mr Baker, who I think is the first.
LADY JUSTICE THIRLWALL: Yes, Mr Baker.
Questions by MR BAKER
MR BAKER: Ms Kelly, I ask questions on behalf of the Families of 12 babies and children. I am going to ask you first of all about the Thematic Review, some questions about that.
KELLY: Yes.
BAKER: But I want to go back to something that you said to Mr De La Poer when he was questioning you. You said in evidence, he asked you about postmortems and postmortems not suggesting sub optimal care if there was a cause of death and you said: "Answer: No, but if you put all of those elements together it doesn't show a particularly positive image of how that unit was being managed and there were a number of -- and the other element is that the words 'unexpected' and 'unexplained' were never discussed before June '16." Do you remember giving that evidence?
KELLY: I do, yes.
BAKER: Could we go, please, to INQ0003251 and to page 7 of that, please.
KELLY: Maybe it's my referral to the Thematic Review that I meant, not June '16.
BAKER: Well, let's go to that and see what it says. This is, as you say, the Thematic Review. It's a final version of it from March 2016 and we can -- can you see
the heading "Sudden Deterioration"?
KELLY: Yes.
BAKER: It says: "Some of the babies suddenly and unexpectedly deteriorated and there was no clear cause for the deterioration/death identified at PM." So how does that square with your evidence to the Inquiry that the words "unexpected" and "unexplained" were never used before 2016?
KELLY: Yes, it was meant to be from the Thematic Review, apologies, not the June '16 timescale.
BAKER: Sorry, I didn't hear that clearly; could you just say that again?
KELLY: I should have referred to the Thematic Review as opposed to just saying the June '16 timescale.
BAKER: Well, you should have said that of course "sudden", "unexpected", "unexplained" were words that were being used throughout the early part of 2016 and to suggest they weren't used before June 2016 which was a -- I would say an attempt to denigrate the accounts that were being given to you by the Consultants, was misleading, wasn't it?
KELLY: I made a mistake, it would have been the Thematic Review that I would have been referring to.
BAKER: Well, I'm sorry, it can't be, because that's March 2016 and you have said in clear terms that those words were never used before June 2016?
KELLY: Yes, it was my mistake.
BAKER: Well, was it carelessness as to whether you were giving accurate evidence or was it a deliberate attempt to mislead?
KELLY: No, it wasn't deliberate attempt. It was careless of my timescales.
BAKER: Okay when did you become aware that the Thematic Review process was under way?
KELLY: I think there was a meeting -- a Serious Incident meeting in January, where it was a suggestion that the clinical team were going to do a review and that's when the first draft appeared in February but needed further work as time went on.
BAKER: So what you say in your witness statement, paragraph 232 is: "I was already aware of the Thematic Review because of the emails on 15 February 2016 with Ian Harvey and the brief mention of it at a Serious Incident Panel meeting in January 2016."
KELLY: Yes. Sorry, what paragraph are you at in my statement?
BAKER: 232. It accords with what you have just said in evidence a moment ago.
KELLY: Yes.
BAKER: Is that right, that is the first you had heard that a Thematic Review was under way was when it was mentioned briefly in a Serious Incident Panel meeting in January 2016?
KELLY: From what I can recall, yes.
BAKER: Eirian Powell was part of the Thematic Review process. Given the usual chain of command, wouldn't you have expected her to notify you that she was taking part in a Thematic Review of neonatal deaths in the latter part of 2015?
KELLY: Not necessarily as a chief nurse. So she may have mentioned that to her line manager so not necessarily.
BAKER: Did you have conversations directly with Eirian Powell or was everything done through --
KELLY: A lot of it was done through the nursing hierarchy which is the team below me.
BAKER: Yes. But did you have conversations with Eirian Powell?
KELLY: During this process yes, I did yes, I did sometimes.
BAKER: Were those conversations always documented?
KELLY: No. Unless they were in action planning meetings which we have already covered today.
BAKER: Yes. If we could look please at INQ0003220, please. So this is an email from you to Julie Fogarty dated 2 December 2015, a quarter to 5 and you say: "Sorry if I haven't been clear. I mean the Thematic Review of neonatal deaths recently undertaken. In the spirit of transparency [I think that should be 'I would like'] the report to go to the next QSPEC." The originating email at the bottom asks: "Hi, where are things up to re the Thematic Review? I am keen to get a paper to December QSPEC." Julie Fogarty has responded saying: "The updated midwifery element was received in November at QSPEC. It was the paediatric update that was missing." Now, the Thematic Review was the nomenclature used by Dr Brearey and Eirian Powell in their study which was being undertaken during the latter part of 2015?
KELLY: I think this was, as you can see at the top, my handwritten note is it was quite confusing that this was called a Thematic Review, this was actually the obstetric review that was completed by Sara Brigham at the end of 2015.
BAKER: Yes. We can see the handwritten bit at the top. When was that added?
KELLY: A similar time because at the time that was an
obstetric review and as far as I was aware, there was no neonatal review undertaken until we had had the conversation in January is my understanding.
BAKER: Sorry when you say at the same time, you are not seriously suggesting this email was printed out that you annotated it and put it in a file somewhere in December 2015?
KELLY: No, no.
BAKER: When did you write: "NB. Despite terminology below this was an obstetric maternity review"?
KELLY: I can't recall when I wrote that but that would have been on the back of the conversation with Julie Fogarty to discuss the -- the terminology around what that review was actually going to be.
BAKER: So to clarify though, did you write that after issues relating to Lucy Letby became known?
KELLY: I can't answer that question. I have got no recollection of the timing of it.
BAKER: You gave evidence about how busy you are with emails and how many you have to deal with. Would you really have had time to go back through all of your emails apropos of nothing at some time prior to Lucy Letby's crimes becoming apparent, print it out and annotate it?
KELLY: No.
BAKER: No. So is it likely then that this occurred -- this annotation was put in after the point where Lucy Letby's crimes became known?
KELLY: I can't comment on that. I have no recollection of the timing of that.
BAKER: Well, isn't it rather a self-serving annotation to move away from the obvious that's in the body of the original email, namely that in December 2015 you were aware of a Thematic Review of the neonatal unit and in particular deaths occurring there?
KELLY: No. That was confusing terminology about the obstetric review that --
BAKER: Well, as the annotation accepts: "... despite terminology below, this was an obstetric maternity review."
KELLY: Yes.
BAKER: Well, the obstetric maternity reviews was the Brigham review and you can take it from me nowhere within the Brigham review does it refer to itself as a Thematic Review of neonatal deaths?
KELLY: I think it is just semantics of the terminology. My understanding at that time was that there was confusion around what kind of review was going on and it appeared that it ended up being an obstetric
review, not a neonatal review.
BAKER: Okay. Well, in that case can we move on, please, to INQ0003089, it's an email I think you will have seen before. Okay, so these are the emails where Eirian Powell attaches or notifies you about the findings of the Thematic Review. So if we go, please, to the bottom at page 2. Now, would you agree: "Hi Alison, I was hoping we could arrange a meeting with you to discuss how to move forwards with regards to our findings." That suggests that Eirian Powell knew that you were already aware of the Thematic Review, it's not language which suggests she has to introduce the concept to you?
KELLY: It -- you could assume that but I wasn't aware of the work that Eirian Powell was doing, there was a lot -- it's now come to light that she was doing a lot of reviews herself on the unit which wouldn't involve me or me even having knowledge of that.
BAKER: Okay. So one interpretation of the language she is using, though, is that it assumes some level of knowledge on your part, ie she doesn't begin it with: "Dear Alison, you may not have known but Dr Brearey and I and others carried out a Thematic Review last year
and I would like to notify you about the findings." Would it not follow if that were the interpretation that it's likely that you and Eirian Powell had had some discussion prior to 17 March regarding the Thematic Review?
KELLY: I think that's highly unlikely. I would not be directly involved with some work being undertaken on a clinical unit. That would not be my role. But she would have had conversations with her line managers and wider clinical team.
BAKER: Yes, but if there was -- if there was a concern about a high mortality rate and a commonality between a particular nurse and that mortality rate, isn't that exactly the sort of thing you would expect to be elevated up through to you? Wouldn't you expect to know about it?
KELLY: If what, sorry?
BAKER: Wouldn't you expect to know about it?
KELLY: Yes, but I would also expect it to go through the usual channels instead of it coming directly to me. But as I mentioned before, if somebody had such a concern that I would hope that they wouldn't rely on emails for me to see it in my inbox, I would expect them to come and see me personally.
BAKER: There you go. You would expect them to come
to see you personally?
KELLY: Yes.
BAKER: Yes, and isn't it likely therefore if that was your expectation that is exactly what Eirian Powell had done?
KELLY: No, I don't recall her coming to my office.
BAKER: Well, presumably there's lots of things you don't recall. You don't recall receiving this email, do you?
KELLY: I do remember seeing this email.
BAKER: Isn't it plausible that Eirian Powell did come and see you in your office some time prior to 17 March and discussed the Thematic Review with you?
KELLY: I think it's highly unlikely. I'm not sure what was in her evidence but there was obviously the email trail about wanting to share the information that she had been doing at a unit level and requesting a meeting as we discussed earlier.
BAKER: Okay. Let's assume then if you did receive this email from a standing start and had no prior knowledge of it, the Thematic Review, looking at Eirian Powell's email to you, can you see within that anything that might cause you alarm or concern?
KELLY: I think as we talked earlier you could work your way through each of those points, points 1 to 3, but then that is qualified by despite reviewing these cases, there's nothing obvious that we are able to identify. So for me, there wasn't significant concerns being raised and they were the experts, Eirian and Stephen Brearey were doing that themselves.
BAKER: Is that what they are saying? I mean, despite reviewing these cases there was nothing obvious that we were able to identify, therefore your input would be valued. In the context of high mortality, a commonality was that a particular nurse was on duty either leading up to or during, "this particular nurse commenced working on in the unit in January 2012 without incident". What do you think they are getting at with a commonality with a particular nurse?
KELLY: They had obviously done some workaround staffing but again that wasn't giving me a full picture so I think what I was focusing on was the qualified statement at the bottom which was: Eirian was raising this and as far as they were concerned there was no obvious issues going on and that's why they needed our further review, further input. So there was nothing for me that significantly raised concerns at that time.
BAKER: So that was -- I mean, you didn't pick the phone up to Eirian and say: hang on a moment what's all this about, high mortality commonality of a member of staff; no?
KELLY: No, I wouldn't go directly to a ward manager.
BAKER: Okay.
KELLY: Usually it would go through my nursing team.
BAKER: So instead you take four days to get back saying: "Can you send Ian and I the report in the first instance." Had you discussed this with Ian Harvey in the interim?
KELLY: I don't recall. I think we had our catch-up in April around the review that was more finalised at that point.
BAKER: This is still March. I mean, if you discussed it with Ian, how did you know that Ian didn't already have a copy?
KELLY: I think he had a draft copy which he sent to me in February.
BAKER: Yes, but how did you know that, for example, Stephen Brearey hadn't sent Ian Harvey a copy?
KELLY: Sorry, can you repeat that?
BAKER: Yes. So you are asking Eirian Powell to send
you and Ian a copy of the report. Unless you had spoken to Ian Harvey, how would you know that he hadn't already got one from Stephen Brearey?
KELLY: I didn't. I would just assume that if she was sending it to me it would be helpful to send it to him as well.
BAKER: So if we go up the page you can see that Eirian Powell sends you the report, just go on to the next page, sorry, page 1. 11.02, so she sends you a copy of the report, 11.02 on 21 March, an hour or so after you emailed her. That is a report that we saw earlier that talked about sudden, unexpected and unexplained deaths?
KELLY: Yes.
BAKER: Yes. You had so little curiosity in Eirian Powell's emails and attachments that you can't recall reading them, the attachments?
KELLY: I am -- I'm not sure, no.
BAKER: Is that an honest answer, that you didn't open the attachment?
KELLY: Yes, it's quite possibly that I read the email and at that time, the same time, didn't open the attachment.
BAKER: So an email that commences: high mortality, commonality of a particular nurse and you are sent
a report in response to your request for that report, and you don't even open the attachment?
KELLY: I can't recall when I did.
BAKER: Isn't Eirian Powell's email ringing obvious alarm bells to you about what this might all be about?
KELLY: I think what I focused on at the time was the qualifying statement underneath which was almost reassuring, so it wasn't saying: we need a meeting tomorrow, this is very, very urgent. It was almost done in a passive way, as in: we have done this piece of work, we are just going to ask -- it would be good if we could have a conversation with you and Ian about any further actions that we might need to take. So for me reading it, and it's great in the cold light of day to look at it now, but at the time it didn't raise significant concerns with me.
BAKER: Right. So you would blame Eirian Powell for not being explicit enough in her emails to you?
KELLY: I am just talking about the way that sometimes messages get lost in emails and it's not a great form of communication.
BAKER: Can we go to INQ0107095, please. Now Eirian Powell had sent you a further email on 14 April, which enclosed an updated copy of the report, of the Thematic Review, okay? But if we can go please first of all to INQ0107095 and page 148 of that, please. It can take a little time to catch up, I think. There we go. So at the top of that page it is 11 April, so this is before Eirian Powell sends you the updated Thematic Review, but after she had sent you the 2 March version okay. So NNU -- it is your discussion. It is your one-to-one with Ian Harvey: "NNU Thematic Review paeds/NNU poor ..." And then "maternity" or "with maternity". So if you are having a conversation with somebody, Ian Harvey, on 11 April 2016, referring to the Thematic Review, isn't it axiomatic that you have read it before that?
KELLY: Potentially, or we just had that as an agenda item to talk about generally in terms of needing to meet. I think there is a further one-to-one I had with Ian after that.
BAKER: Well, we are going on to the next page, if we can, then. So we have got zoomed in here but this will do. "Follow-up feedback from external Consultant ..." What's the squiggle before "Steve Brearey"?
KELLY: "Re".
BAKER: "... re Steve Brearey/Ian Harvey. NNU mortality QSPEC for noting. SB [Steve Brearey] to attend." What is the "external Consultant Re Steve Brearey"?
KELLY: I don't recall unless that was some communication from the network in terms of Nim.
BAKER: Well, what feedback would you be expecting from an external Consultant regarding Steve Brearey in the context of the NNU mortality?
KELLY: I have no idea what that refers to. Possibly a network --
BAKER: But again --
KELLY: -- reference.
BAKER: You are here again discussing or noting discussions regarding NNU mortality on 11 April so it's before you have received the updated version on 21 April. Again, isn't it -- or 14 April, sorry. Isn't it inevitable that you have read the Thematic Review by that point?
KELLY: Potentially, but not necessarily.
BAKER: Would you have attended a meeting and discussed a Thematic Review that you hadn't read?
KELLY: Are we talking about the May meeting now or this?
BAKER: No, no, we are talking about the April?
KELLY: We would have just been talking generally about where's it up to? What we are doing with it? What meeting does it need to go to? As we put there it goes to the quality meeting for noting, Steve Brearey to attend. So more about logistics than the actual content at the time is my recollection.
BAKER: Yes, but your evidence -- let's be clear about this -- is on 2 March Eirian Powell emails you and says: I want to talk about the Thematic Review, high mortality/commonality. You ask for a copy of that, you are sent it on 21 March, your evidence is, as I understand it before the Inquiry, you probably didn't read it. Now, here we have a meeting on one-to-one with Ian Harvey, Medical Director, on 11 April 2016. Are you honestly saying you hadn't read the Thematic Review by this point?
KELLY: I probably did. I can't remember the timing of that.
BAKER: Yes, so by this point, you would have been aware, not only of the commonality and the increased mortality, but also that deaths were sudden, unexpected, and unexplained, wouldn't you, if you had read it?
KELLY: Yes, but the first line at the top of the report says "no common -- common themes".
BAKER: If we go on then to the next one to one with Ian Harvey, now this is the INQ0003385, and we are now on 18 April 2016. We by this point you have had a copy from Eirian Powell on 14 April of the updated Thematic Review which has Lucy Letby's name highlighted in red within it?
KELLY: (Nods)
BAKER: Now, if you look at -- it's just under -- is it week commencing 20 April, can you see that there? CQC discussion.
KELLY: Sorry, whereabouts on the page?
BAKER: It is the second entry down?
KELLY: Right, yes.
BAKER: "CQC discussion re interview leads for ..."
KELLY: Dashboard.
BAKER: "... dashboard re QSPEC."
KELLY: "EOL" is end of life.
BAKER: Thank you. Then it says: "NNU Mortality Review, document including staff." Now, doesn't "document including staff" indicate that you are now aware that there is a document, a Thematic Review which includes reference to individual staff members?
KELLY: Potentially, yes.
BAKER: Can you think of any other explanation as to why you would have written "document including staff" under Mortality Review in April 2016 unless you were referring to the document sent to you by Eirian Powell on 14 April 2016?
KELLY: Yes, that will have been just a conversation with Ian and I will about the fuller report including the staff.
BAKER: Yes, so again by 18 April, because this is your planning ahead, isn't it, for the week commencing the 20th but the note is written on 18 April, you were aware that there was a Mortality Review, a Thematic Review which highlighted Lucy Letby's name in red?
KELLY: We probably talked about that in that meeting, yes. I can't recall at what point we discussed that report because there were a number of iterations but the final one, you are correct, had Lucy Letby's name in red.
BAKER: Yes, so that was actually the version that was sent to you on 14 April by Eirian Powell. So it's the name highlighted in red. So it would follow, wouldn't it, a few days later here you are discussing "document including staff" must be referencing that document?
KELLY: Possibly, yes, in the catch-up.
BAKER: Possibly or probably?
KELLY: I can't -- I can't recall the detail of the conversation. But we have obviously had it on our agenda to talk about.
BAKER: It goes on to say: "[Query] review by Hill Dicks." Now Hill Dicks are a firm of solicitors, they are not the ones who do the employment cases; we heard that is DAC Beachcroft?
KELLY: Yes.
BAKER: Hill Dickinson are the firm who represent the Trust in relation to negligence matters?
KELLY: Yes, they did and I have reflected on that comment and I don't know why that is written underneath the NNU Mortality Review because that's not something we would ordinarily do and I didn't even have any contact with Hill Dickinson. That came through the legal team. So I am -- I'm not sure of the context of why I wrote that there.
BAKER: Yes. Isn't it obvious, we can piece it together: there is a conversation going on with Ian Harvey in April 2016, referencing the Mortality Review, noting that there is now a document that includes staff members on it and asking the question: do we need to have this reviewed by our solicitors?
Now, that seems to be a fairly logical construction of what's written there?
KELLY: It does feel that that would be logical but I have absolutely no recollection as to what -- what that was on there for. It -- I don't think it was linked at all to the NNU.
BAKER: Well, it's written directly. It's written as part of the NNU Mortality Review section, isn't it?
KELLY: It would be highly unusual for me to instruct Hill Dickinson to do any legal work. It wasn't part of my portfolio so I can't really explain why that is written there or what indeed the action was.
BAKER: But suspicions about a member of staff being associated with a rise in mortality is quite an unusual situation, isn't it?
KELLY: It is, but like I said, I have no idea why the Hill Dickinson reference is there.
BAKER: Now, in fact if we go on then please to your emails of INQ --
LADY JUSTICE THIRLWALL: Mr Baker, just before you do that, I wonder if we might just check the date of that highlighted entry?
MR BAKER: Of course.
LADY JUSTICE THIRLWALL: I think I heard you say 20 April I wonder if it was the 25th?
MR BAKER: I think it could be 25 April. It says "week commencing 25th", I think.
LADY JUSTICE THIRLWALL: It's your writing, Ms Kelly.
KELLY: It would be WC, week commencing, the 25th.
LADY JUSTICE THIRLWALL: Yes, thank you.
MR BAKER: The 25th. If you are writing "week commencing 25 April", is that a note you are making on 18 April or on 25 April?
KELLY: I'm not sure it looks like a separate entry.
BAKER: I think in your witness statement you describe it as part of a note you made during your one-to-one with Ian Harvey on 18 April?
KELLY: It does look like that because we would go through a list of topics we needed to discuss and I would write some notes on each of those.
BAKER: But in any event it's before you speak to the Consultants formally? Before you speak --
KELLY: Yes, yes.
BAKER: And if we could go on then please to INQ0003138, again you have seen this before, if you look at the email at the bottom 4 May 2016: "Ah, can you please look at this with Anne and Eirian. If there is a staff trend here and we have already changed her shift patterns because of this and this is potentially very serious." What do you mean by "potentially very serious"?
KELLY: That we could have a competency problem --
BAKER: Yes.
KELLY: -- is what my first reaction was to that.
BAKER: Yes. The next one you can see here Lucy Letby highlighted in red. "I had not noticed this when I first reviewed. Can you look at this per my previous email?" If we go on to emails that you were sending to Ian Harvey at around the same time, so that is INQ0003087, you can see you are sending on an email here from Stephen Brearey, who's upset that you haven't been able to have a meeting so far: "There is a nurse on the unit who has been present for quite a few of the deaths and other arrests and she he has sensibly been put on day shifts, only at the moment." So again that is the same comments that you were making in your previous emails about the shift to day shifts. You say: "Hi Ian, please see Steve's comments below which alarmed me." Now, why did you find them alarming? Was that
because of the same reason?
KELLY: Yes, I thought we had a competency issues and that was being called out.
BAKER: Is it right to say then certainly by 4 May 2016, if not before, there's an obvious safeguarding issue, isn't there?
KELLY: Yes, and we talked about safeguarding earlier on.
BAKER: Yes.
KELLY: But it was more around -- again I'll repeat what I said earlier, at the time we were looking at concerns through a mortality lens, not a safeguarding one and it wasn't clear. But this particular -- about the particular nurse in terms of Letby, the first place I went to was competency.
BAKER: Well, it may be the first place you go to, but competency, a nurse causing a rise in mortality, it still is a safeguarding issue, isn't it?
KELLY: Sorry, say that again?
BAKER: A nurse causing a rise in mortality due to incompetence is a safeguarding issue, isn't it?
KELLY: Potentially, yes, but at the time we needed to find more information out.
BAKER: Can I be explicit about this: between March, April, May we have got I would suggest a number of red
flags here that require action and seemingly on the face of it, you and/or Ian Harvey aren't taking any action, and I represent the Families of two of the Triplets O and P who died in June and they would suggest that delays at this time allowed Lucy Letby to go on and murder their children. Now, on reflection, do you think that things could have been done more expeditiously through March, April and May to bring forward a meeting to seriously discuss these issues?
KELLY: I think I mentioned before and, you know, reflected on this that there were delays and I don't know why there were delays, I haven't got access to my diary, in meeting with the team to discuss this in more detail. I think that the sense as I mentioned before of there was lack -- for me there was a sense of lack of urgency to meet and so it did kind of tick along longer than it should have -- should have done.
BAKER: Well, there seems to be reasonable expedition on the part of Eirian Powell when it comes to answering your request to send you things.
KELLY: Yes.
BAKER: It was open to you to pick the phone up or indeed to email people faster and say "let's set
a meeting up". Are you seriously blaming the people who were bringing this to your door --
KELLY: No, but what I am saying is when you are in charge of a whole hospital there are challenges with the timeliness that you get to actions and I recognise that some of these actions should have been taken more timely. And it's, you know, people could have come and spoke to me or picked up the phone. My PA would invariably take urgent messages from teams to come and speak to me. So again going back to what I said before, communication via email is not that good in terms of raising significant concerns.
BAKER: Were you too busy to do your job?
KELLY: Sorry?
BAKER: Were you too busy to do your job properly; is that your evidence?
KELLY: I was -- I am not saying I was too busy not to do my job, I was a very busy person. My portfolio was very large, so getting to emails in a timely way was difficult. You will see some of the emails are either very first thing in the morning -- excuse me.
BAKER: Was it the case that -- I mean, if you can't see your emails and people are emailing you about potential safeguarding issues and you can't manage your emails because you can't get to them or there's too many of them, that's an obvious safety issue. Why didn't you raise it with the hospital?
KELLY: I think I sit here as a chief nurse and I would say that everybody else in my position would be in exactly the same position in terms of workload. The other thing to mention, though, is everybody in the organisation was responsible for safeguarding, there was specific safeguarding doctors, specific safeguarding nurses, nobody raised any concerns with any of those individuals and -- and the clinicians on the unit didn't raise a safeguarding concern.
BAKER: But --
KELLY: So there could have been some action taken before it had got to me.
BAKER: If everybody says it is somebody else's responsibility then nobody does it; that is the risk, isn't it?
KELLY: I recognise that, but the safeguarding policy actually says safeguarding is everybody's responsibility, which is good when that works in practice but I recognise what you are say in terms of everybody thinks everybody else is doing something.
BAKER: The Speak Up Safely policy says that you are to raise your safeguarding issues as quickly as possible because delay can cause for continuation of harm,
doesn't it?
KELLY: Yes.
BAKER: If you raise those concerns and nobody can act on them, or does anything about it --
KELLY: Sorry?
BAKER: If you raise your concerns, if you elevate your whistleblowing concerns and nobody acts upon it, because they are too busy or don't read their emails or for whatever reason, that is a serious safety issue, isn't it?
KELLY: You could look at it like that, yes. But the reality is that does happen in practice and I rely on the rest of my team to flag concerns to me directly if I cannot get to everything that happens to be in my inbox.
BAKER: I am going to move on just to events following the deaths of [Child O] and [Child P]. You have been asked questions about the meeting on 29 June. I would like to ask you questions about the 6 July 2016. But first of all can we go to INQ0014261 and to page 3 of that document, please. So this is an exchange between you and Tony Newman, the regulation adviser for the NMC. You can see that here is an email, 6 July 2016, it has been amended by you to correct his note. Does that make sense to you?
KELLY: That's right.
BAKER: So he's provided you with a summary of the discussion and you have changed it so it fits with your recollection of the meeting or the discussion?
KELLY: Yes.
BAKER: It's the final item amongst the list of question marks. It says: "The Executive Team are due to meet today 6 July to decide if this registrant will be reported to the police to investigate." So you have obviously had a conversation with Tony Newman at the NMC where you have advised him that the Executive Team -- he has written "Trust board" but you have changed that, the Executive Team were due to meet on 6 July 2016 to decide if there would be a report to the police regarding Lucy Letby; do you see that?
KELLY: Yes.
BAKER: Now, was that actually discussed on 6 July 2016, because I can't see?
KELLY: I'm not sure. I think we were talking generally around because all the concerns that had been raised at the end of June '16, we then had a rapid series of actions that we took as an Executive Team. We were talking more broadly around will this require police investigation, but as I mentioned earlier we
decided that we needed to find more information out internally before we went to the police.
BAKER: Yes, but I mean don't --
KELLY: So I'm not sure of that reference there.
BAKER: Yes, but you have obviously checked it because you have changed "Trust board" to "Executive Team"?
KELLY: Yes.
BAKER: Now, it's fairly explicit, isn't it, it is not a vague record, it is a record of an Executive Team due to meet today, 6 July, to decide if this registrant will be reported to the police to investigate. Do you agree that the obvious inference from that is that that is what you told Tony Newman during your conversation?
KELLY: Yes, that was my understanding at the time.
BAKER: Yes.
KELLY: But I think once we had got together as an Executive Team there was further discussions going forward around what we needed to do internally before the police.
BAKER: So other people of course will look at the 6 July meeting and what happened there. We can actually look at your account of it because you have it in your witness statement from paragraph 403 onwards. You give an account of the meeting here. So page 120 of your witness statement. Do you agree that that account of the meeting does not record any discussions about calling the police? Take your time to read it. (Pause)
KELLY: No, I think that's because when we got together as a team we felt we needed to do the internal work before going to the police.
BAKER: Yes, but you have to get there, don't you, there has to be a conversation about: are we going to call the police or not? That meeting on 6 July doesn't record any conversations at all about the question of whether we are going to call the police or not.
KELLY: No, I don't, I have not written anything down I don't recall.
BAKER: Now, were you misleading Tony Newman when you reassured him that there was going to be an Executive Team discussion on 6 July to decide if the police should be called?
KELLY: I don't think I was at that time because I think that's what genuinely we were going to talk about as an Executive Team, but then that went into lots of other actions. So I think at the time I was being absolutely honest with Tony Newman.
BAKER: You weren't absolutely honest with him or were
you, sorry?
KELLY: I was.
BAKER: You were?
KELLY: Yes.
BAKER: So you believed that that was going to be discussed at the 6 July. You went into the meeting, you must have been astounded when nobody mentioned it. Did you not think to raise it?
KELLY: If it's not documented I'm not sure what we discussed about the police. I think we kind of went into action mode around what we needed to do and I am not certain whether we actually talked about the police or not, if it's not documented.
BAKER: It's not documented. Okay so I am going to --
KELLY: But I think the intention was when I spoke to Tony that that's what we were going to do.
BAKER: But somewhere between the cup and the mouth that just vanished?
KELLY: Sorry?
BAKER: Somewhere between that conversation and the meeting starting, the any suggestion the police might be discussed was just forgotten about?
KELLY: Well, not forgotten, maybe not documented. I'm not sure, I can't comment.
BAKER: Finally, you attended a meeting with Mother C
in July 2016 which was also attended by Sian Williams. Now, by July 2016, you were aware that serious concerns had been raised regarding the conduct of Lucy Letby, you were aware that discussions regarding calling the police had been floated around because that's what you said to Tony Newman. You were aware that the RCPCH report was being commissioned or being undertaken to investigate some issues on the face of it perhaps surrounding Lucy Letby and you had a meeting with Mother C in July after she became aware through an article in the Chester Chronicle that there was an investigation under way. Now, do you recall meeting with Mother C?
KELLY: So I have reflected on this and I had no -- as far as I am aware -- I am not saying that the meeting didn't take place, as far as I am aware I didn't meet with any Family members. My deputy, Sian Williams, and Ian Harvey kind of coordinated the family communication. So I don't recollect having a conversation with Mother C.
BAKER: Okay, she came into the hospital I think apropos of nothing and having read the article or become aware of the article --
KELLY: I believe so, yes.
BAKER: -- in the Chester Chronicle and waited
a little while and you and Sian Williams came down and met with her in a room to discuss the Royal College report?
KELLY: Right. I really don't recollect that.
BAKER: Okay. Well, she recalls that conversation very clearly. It's plausible you have forgotten about it. You are not disagreeing that that took place?
KELLY: I am not disagreeing it didn't happen. I don't recall having any conversations with any Family members of any babies at that time.
BAKER: What you said to her, and I am going to just read from her evidence before the Inquiry: "Answer: So this lady went and got Sian Williams and Alison Kelly who came down and spoke to me. It was a fairly short meeting to my recollection where I was told by them that there was an investigation being done by the Royal College that was more of a formality because there had been a very small increase in the number of deaths, but it was looking at various sort of logistical things like staffing levels and that sort of thing and that they weren't really expecting anything to come from it and that they tried to contact me because that was -- that was challenging." Now, given what you knew at the time that was completely misleading, wasn't it, if you said that?
KELLY: If I said that, if I was at that meeting I absolutely don't recall meeting any Families like I said. But I think one of the things that one of the key elements and it's in my reflections of -- of this case is that we didn't get the communication right with Families and we didn't get the balance right and I think that is an example of where we didn't get it right.
BAKER: Yes. Mother C was pregnant at the time, her previous child had died, as it turns out murdered by Lucy Letby, and it's not about communications. I suggest, based upon what you knew, you lied to her?
KELLY: I don't recall. Honestly, I don't recall that meeting. But what we did talk about as an Executive Team is the fact that we could have done much, much more to support Families. And it was clear that each Family potentially wanted to be communicated with in a different way, so to meet the needs and expectations of those Families we -- we should have done more to do, to meet those expectations and we didn't.
BAKER: I can't imagine any of the Families wanted to be lied to.
KELLY: I'm not saying that they were lied to.
MR BAKER: Thank you, my Lady. I have no more questions.
LADY JUSTICE THIRLWALL: Thank you, Mr Baker. We will take a 15-minute break before we continue. How much has everyone else got, Mr Skelton?
MR SKELTON: 10 minutes.
LADY JUSTICE THIRLWALL: Thank you.
MS BLACKWELL: 20 minutes.
MR KENNEDY: About five.
LADY JUSTICE THIRLWALL: Thank you. So we will start again at 5 o'clock.
(4.45 pm)
(A short break)
(5.00 pm)
Questions by MR SKELTON
LADY JUSTICE THIRLWALL: Mr Skelton.
MR SKELTON: Ms Kelly, I ask questions on behalf of the [indistinct] I am just going to deal with two discrete issues, if I may. One is about the meeting you attended on 2 July 2015 which was the Serious Incident meeting.
KELLY: Yes.
SKELTON: Do you recall that?
KELLY: I do.
SKELTON: So this was after the three children had died in June: Baby A [Child A], Baby C [Child C], Baby D [Child D]. How usual was it for you to attend a Serious Incident meeting?
KELLY: Very usual, I would normally chair it and if it's not me, it would be the Medical Director, Ian Harvey.
SKELTON: How usual was it for there to be an incident meeting about three deaths?
KELLY: We could have spikes across the hospital, infrequently but not usually.
SKELTON: Had you attended a Neonatal Mortality Meeting of this kind before with three babies having died within two weeks?
KELLY: I didn't attend any Mortality Meetings as a Director of Nursing. Are you talking about the --
SKELTON: I am using, sorry, I used the wrong shorthand?
KELLY: -- extraordinary meeting that we had afterwards?
SKELTON: Yes. You had attended one before?
KELLY: Sorry, say that again?
SKELTON: My question was: had you attended a meeting before where there had been a group of three neonates who died within a two-week period?
KELLY: No, not at that time.
SKELTON: The purpose was, was it, to look for common factors between the children and their deaths?
KELLY: Yes, potentially, but also to understand each of the cases individually.
SKELTON: Dr Brearey in his evidence to the Inquiry, both in writing and orally, described the process of going through the children's deaths at the meeting and then at the end he said that Eirian Powell raised the observation that Lucy Letby had been on the unit on the three occasions when the three babies had collapsed and his reaction, which he described in detail to this hearing was "oh no, not nice Lucy". And you were at that meeting and he recalls you having heard that as well; do you remember that?
KELLY: That wasn't said at that meeting, Eirian Powell wasn't at that meeting, so my notes reflect that and I have said in my witness statement that Lucy Letby's name was not mentioned at that meeting at all.
SKELTON: In his evidence he says that your response to that information that Letby was the connecting factor because I think Eirian Powell had in fact identified her quite early on as being the connecting factor, was that was something you needed to keep an eye on. You said that: we'll keep an eye on it. Do you remember that?
KELLY: No, I don't because Lucy Letby's name wasn't mentioned at that meeting and Eirian Powell wasn't at that meeting.
SKELTON: Did she ever mention she had spotted the connection between that member of staff quite early on?
KELLY: No.
SKELTON: So even after the issue came up a year or so later, did she ever say: well, in fact, I spotted this back in June 2015?
KELLY: No, not to my knowledge.
SKELTON: That's the case even after three more children died and Lucy Letby was connected to those three deaths as well?
KELLY: Can you repeat that, sorry?
SKELTON: And she never mentioned it even after three further children died, all of whom were connected to Lucy Letby as well? That is Baby E [Child E], Baby I [Child I], Baby K [Child K]?
KELLY: No, until she started to do the internal reviews that she was doing with Steve Brearey on the unit and then that escalated as we have already talked about today to doing the Thematic Review.
SKELTON: You have been asked in detail about your evolving knowledge about the Thematic Review that occurred and I am not going to go through that in detail but there is just one email from Dr Brearey that I want today ask you about, it is INQ0107818, this is from 4 May. If you could go to -- there should be a second page there, please. So just the email you can just see on 4 May at
16:10. "There is a nurse on the unit who has been present for quite a few of the deaths and other arrests." I wondered if you picked up that second phrase "and other arrests", that Steve Brearey was mentioning for the first time it seems not just the fact that children had died but that children had collapsed, arrested in fact, which is the most serious form of collapse, and Letby had also been present for those collapses or arrests. Did you pick that up?
KELLY: Not at the time because to me that the context of that email was more about staffing concerns as opposed to what he was saying about that particular nurse. The arrest bit is a good point because none of those were actually reported on the Datix system so throughout my Rule 9 request for my statement, I was repeatedly asked: did you know about X baby that deteriorated? No, we never got to know about those until this Inquiry and further reviews that we did because they weren't actually reported at the time. So in terms of that particular email I didn't pick up on other arrests because I didn't understand the context at the time. To me, that was more of a concern about: we have got some staffing issues and they were just flagging it to me, but also had some concerns about
a nurse potential competency issue. That is how I read that.
SKELTON: You had been involved with the original -- the SI I mentioned?
KELLY: Yes, I did, yes.
SKELTON: The mortality continued, which you were aware of, whether you were aware of the details you know that babies carried on dying. And you knew that there was a connection between a member of staff because you have already accepted that you had in fact seen the table by this point in May and he's also mentioning that children had arrested. So this is more information. It's significant, isn't it?
KELLY: It is more information but again we needed to understand the detail of that which is why it was important that Dr Brearey shared that with us.
SKELTON: Did you ask him to?
KELLY: Not at that point, no.
SKELTON: At any point?
KELLY: The Thematic Review had additional sections added after discussion with the network which did talk about deteriorating babies which hadn't been in the original report, so that kind of started to build up the picture of what was going on.
SKELTON: Did you check to see if Letby was associated,
as he was suggesting, with the arrests as well as the deaths?
KELLY: Not personally. Not personally, no.
SKELTON: Again without going into the detail, it appears that what happens over the next couple of days is that Karen Rees takes charge of the issue and liaises with Eirian Powell and others and there is a meeting that takes place which I don't think you attended; is that right?
KELLY: I don't think I was at that, no.
SKELTON: Is that the meeting that is with Karen Rees Yvonne Griffiths, Anne Murphy, Eirian Powell?
KELLY: Okay, so the senior nursing team.
SKELTON: Indeed.
KELLY: Yes.
SKELTON: It appears at that meeting that they discuss Lucy Letby's potential involvement and there is a document, the neonatal mortality document, which Eirian Powell has produced which is one of the attachments that you were sent which you asked to be printed off, which makes clear at the start -- you will be familiar with the document -- that there is no evidence in her opinion against Lucy Letby, do you remember that document?
KELLY: I do remember the document, is it the one with the clinical almost like a clinical case review on the furthermost column to the right?
SKELTON: Just briefly in the interests of time, I will put it on screen, 0003243. It's this one.
KELLY: Okay, right. Yes.
SKELTON: So this I think is the subject of that meeting that you are discussing --
KELLY: Yes.
SKELTON: -- with the three sort of nursing team managers, you are not attending the meeting but they clearly discuss Lucy Letby directly, including the question of whether or not there is sufficient evidence, as they put it -- or she puts it -- against her and they reject that possibility. Now, is it the case then that after this meeting Karen Rees speaks to you and gives you reassurance that Letby is not involved?
KELLY: I can't recall Karen coming to speak to me directly but I do recall Eirian referring to this document in the meeting of 11 May where Steve Brearey also provided the Thematic Review analysis.
SKELTON: In the email that you sent to Ian Harvey on 6 May, which I won't call up because it's been on the screen many times, the one in which you say you are alarmed, you say: I am currently reassured there are no
issues". Who reassured you there are no issues?
KELLY: I'm not sure it might have been Karen because Eirian would have escalated any concerns up through her nursing structure to Karen, so it may have been Karen that provided that reassurance to me. I felt at the time that there was nothing to be concerned about and I would have got some assurance from my team to make that decision.
SKELTON: Can I test that, please. The senior nurses have met and they have decided that there is no evidence to connect Lucy Letby to the deaths. They weren't qualified it make that assumption, were they?
KELLY: Not, not on their own, no.
SKELTON: And you were reliant on a reassurance therefore which didn't have a proper medical basis?
KELLY: I think this document I believe once they collated it was shared with Dr Brearey prior to the 11 May meeting because it does talk about other issues aside to potential competencies of -- of Letby. So my understanding was that Eirian Powell and Dr Brearey were doing this as a joint piece of work but recognised this was about what you are talking about, was a nursing meeting without doctors there. So it was just one part of a bigger picture which needed to be
investigated further.
SKELTON: Well, it looks from the big picture as if positions get entrenched around this period of time. There's a meeting of the senior nursing staff who report up to you in which they take the position that Letby is not involved, you rely on that reassurance but it is completely at odds with the Consultants' view which you are aware of, Steve Brearey's view, because he tells you that on the 11th, and in fact that position never changed, did it: you and Karen Rees and Eirian Powell never changed your mind from that point onwards, did you?
KELLY: I would disagree with that. I think we heard both sides and it's evident from the 11 May meeting we, Ian Harvey and myself, listened to both sides, the clinical and the staffing challenges as well as some of the strategic and operational issues that Eirian Powell articulates in his paper. And as I said before, Dr Brearey had this document but I don't think he had a chance to look at it before the 11 May meeting. But as time went on, yes, I would agree, the relationships did become strained between doctors and nurses and that -- that was, that caused us some difficulty.
SKELTON: Well --
KELLY: But at this time, from my perspective as the Director of Nursing, I was keeping an open mind. It wasn't just about an individual, she hasn't done anything, we needed to understand more fully what was going on in terms of the raised mortality.
SKELTON: Well, "open mind" meant that you had to recognise, as you accepted with Mr De La Poer this morning, the possibility of deliberate harm which is what Dr Brearey suspected, number one.
KELLY: Yes.
SKELTON: Number two was if that possibility is on the table and it has some basis, as it did from the clinical staff, it was a patient safety issue because you could not exclude that risk safely?
KELLY: I agree.
SKELTON: The only option in those circumstances is to trigger the safeguarding process or call the police?
KELLY: Yes, and as I mentioned earlier on because the focus to start with was around increased mortality, it wasn't just about my -- my view. Everybody looked at this through a mortality lens and not a safeguarding one and I have done a lot of reflection as the Executive Lead for Safeguarding and I accept there would have been some opportunities to have gone down a safeguarding route but it didn't feel obvious at the time.
SKELTON: Well, you are putting it in soft and euphemistic terms, if I may say so. You said at the start of your evidence today when you apologised to the Families, or you acknowledged their loss, that there were things you didn't get right?
KELLY: Yes.
SKELTON: Can I put it to you this is the thing you got wrong: when you were presented with concerns that raised the issue of potential deliberate harm you did not take the appropriate steps and trigger the safeguarding process?
KELLY: Yes, and I mentioned that earlier on. That is one of the things that I have spent a lot of time reflecting on. But at that time it -- it didn't feel obvious. There was lots of things going on and now I know so much more information, it seems obvious to me that that should have happened. But at that time, it wasn't something that was considered by anybody.
SKELTON: To be clear, the likely eventuality that would have occurred had you triggered that process is within 24 hours the designated officer would have been alerted, the police would have been alerted and Letby, in all likelihood, would have been suspended pending an investigation to check safety of the unit.
KELLY: That -- that would have been the process, yes.
MR SKELTON: Thank you. Thank you, my Lady.
LADY JUSTICE THIRLWALL: Thank you very much, Mr Skelton. Mr Kennedy.
Questions by MR KENNEDY
MR KENNEDY: Ms Kelly, my name is Andrew Kennedy. I ask questions on behalf of the Countess of Chester Trust. I want to deal with two discrete issues. The first is something you mentioned -- well, both relate to issues you mentioned in answer to Mr De La Poer's questions earlier. Firstly, my understanding of your evidence was that at the time of the CQC inspection in February of 2016, you were not aware of an increase in mortality on the neonatal unit; is my understanding correct?
KELLY: We had just received the draft report of the Thematic Review but up to that point, deaths had been reviewed where they had been reported, had been reviewed on an individual basis but what hadn't become apparent was that there was a trend over time. So at the time we were not fully aware of the picture.
KENNEDY: So my understanding is that as at the time you spoke to the CQC, you hadn't had an opportunity to
digest the Thematic Review?
KELLY: That is my recollection, yes.
KENNEDY: All right. Can we just test that piece of evidence. If we go back to the 2 July, so the special -- SI Panel meeting which considered the three neonatal deaths, so A, C and D, in answer to Mr Skelton's questions you told him it would be -- it was unusual for you to be considering three deaths in one meeting?
KELLY: Yes.
KENNEDY: All right. Three neonatal deaths in one meeting?
KELLY: Yes.
KENNEDY: Would one question for you have been -- and bearing in mind these were three deaths in 14 days, would one question for you have been: how does that compare to the unit's normal performance?
KELLY: Yes, that could have been a question that could have been asked, but Dr Brearey did a presentation to that meeting and had articulated quite clearly his Mortality Reviews of each of those cases and in light of his expertise in doing those reviews, there was nothing that he was raising as a concern at that meeting that I should have been concerned about albeit there was a cluster of deaths which I now believe can happen but
that's only with the information I have had for this Inquiry.
KENNEDY: Do you think you asked the question: how does this compare to last year or the year before or the year before that?
KELLY: I don't think I did ask that question. But I was assured by the clinician who was in charge of the care of those babies that there was no concerns and he also didn't raise, to my recollection, that this was unusual.
KENNEDY: You referred in answer to Mr Skelton's questions to you said your note and I have checked back to your witness statement and you refer to a document perhaps we can just pull it up, so it's INQ000 -- I am going to say 3350. I am immediately wrong, then 3530. Forgive me, I ... [INQ000]3530. So is this note that you are talking about, this is the one you refer to, we can look at it in your statement if you want to.
KELLY: Yes, what page is that, please?
KENNEDY: It's page 46 of your statement you start on 45 at paragraph 144. You will see in a couple of places you refer to documents and so 147, you see second line in the handwritten note, 3530, which is this document.
KELLY: So this document in front of us is -- it's not my note, it's a note of Julie Fogarty, the Director of Midwifery at the time and it is only the top part of that note that refers to that SI meeting, the bottom is -- is other business.
KENNEDY: I think where there is I think the horizontal line across the middle of the page just above the words "Janet Beech", everything above that relates to this meeting?
KELLY: Yes.
KENNEDY: So we can ignore everything below that. This perhaps consistent with Ms Fogarty's designation as the Head of Midwifery, this appears to be deal with midwifery issues?
KELLY: Yes, she specifically make notes for that as she is Director of Midwifery.
KENNEDY: All right. There is nothing in here about neonatal matters?
KELLY: It -- it was linked -- she was at that meeting so it was linked to the neonatal cases that Dr Brearey was sharing. He brought a document that went through each of the cases, very detailed.
KENNEDY: All right. Did you see a copy of that document?
KELLY: Not beforehand, no, we went through it in the meeting.
KENNEDY: All right. Can we just see whether we can just establish what the document was. Can I ask for another document, INQ0003191, and perhaps if we can just --
KELLY: That is the document I was thinking of.
KENNEDY: That is the document, all right.
KELLY: Yes.
KENNEDY: Can we just scroll down through that to one page more, please. So we can see there that the document gives you comparable neonatal mortality?
KELLY: (Nods)
KENNEDY: So that we can see that three deaths in 14 days in 2015 is as many deaths as there had been on the unit in the previous four of five years over a year.
KELLY: Yes.
KENNEDY: All right. It would follow from that that you must have been alert at least to a rise in neonatal mortality, whether explained or otherwise?
KELLY: Yes.
KENNEDY: Okay.
KELLY: But at the time Dr Brearey, who clearly went through those cases, didn't articulate that there was a problem.
KENNEDY: I am not now concerned with whether there was a problem, I just want to establish whether or not you
knew about a rise in neonatal mortality and I think we are agreed that you would have done looking just at this crude data?
KELLY: Yes.
KENNEDY: Okay. If we wind the clock on, towards the end of that year, 2015, there was a review conducted by Dr Brigham?
KELLY: Yes.
KENNEDY: I don't know if you remember from that, that looked at those three -- it looked at two things, one was stillbirths and one was neonatal deaths?
KELLY: (Nods)
KENNEDY: In terms of neonatal deaths, it looked at -- we can again look at the data if you want to it -- five deaths of which four are what we are referring to as indictment babies, does that ring a bell with you?
KELLY: It -- it does, yes.
KENNEDY: Okay. The conclusion of that, certainly, and that was looking -- that was looking at those aspects from an obstetric perspective and I think your understanding was that there was to be a paediatric or a neonatal equivalent review?
KELLY: Yes. That's where the confusion was at the end of 15 and it ended up being two separate reports, as we know.
KENNEDY: Okay, but as at 2015 at least on Dr Brigham's data, we now had five neonatal deaths?
KELLY: Yes.
KENNEDY: Correct. So if you had cast your mind back to the document we just looked at, you were now higher -- it was now higher than the previous high point which I think was 2008 when there had been four deaths; correct?
KELLY: Yes.
KENNEDY: Okay. So there was a rise in neonatal mortality. When the Thematic Review came along, and can we look at INQ0003217, and I take it while this is being pulled up, that you would have been -- you would have been keen to keep this under review the question of neonatal mortality after your meeting with Dr Brearey in July 2015 or keep -- sorry, perhaps keep an eye on it?
KELLY: Yes.
KENNEDY: Okay.
KELLY: I suppose the problem being that mortality as -- as a topic, if you like, came under the Medical Director and there was a lot of focus at that time on adult mortality to the point where that was mandated to be reported to the board. Neonatal mortality did not have that level of scrutiny or focus nationally. So even though there were reviews being undertaken in the Trust, I don't think we fully appreciated until we had the Thematic Review that there was an increase in neonatal deaths. The document that Sara Brigham collated and then presented to the Quality Committee I recall didn't get any challenge and there was lots of actions reported to support practice going forward but there was nothing that was being flagged as a concern at that time.
KENNEDY: We can look at Dr Brigham's review if we need to but it was looking at matters from an obstetric perspective. So in terms of action going forward, those were obstetrically focused actions?
KELLY: Yes, in the main but the -- the -- they kind of crossed -- crossed over with what was coming out of the Thematic Review the following year.
KENNEDY: All right. Well, maybe another time we have to test that piece -- test how right that is?
KELLY: I think the other thing just to add, sorry, is there was an email trail between myself and Ian Harvey to say there had been these two reviews and actually we need the two teams to work much more collaboratively together and I think in a view to having a more collaborative approach to reports in the future.
KENNEDY: I understand that. As I say, I am just
testing the hypothesis of what you knew when it came to the CQC inspection later in February and my -- my proposition is that you had had -- you knew of three deaths in July, you knew how that compared to previous annual mortality. By November you knew there had been at least two more, so we are now five for the year; correct?
KELLY: Yes.
KENNEDY: I suppose it might beg this question: when it came to speaking to CQC was there an imperative in fact to be -- to look to see what it was the Thematic Review had revealed?
KELLY: Yes. That's not an unreasonable suggestion.
KENNEDY: Okay.
KELLY: And I don't think from myself and Ian Harvey's perspective we probably hadn't joined all the dots together at that time, so we didn't raise anything with the CQC because we needed to look at it ourselves internally.
KENNEDY: But if you had done, you would have seen that it wasn't five, it was ten on the Thematic Review?
KELLY: In -- in the document, yes.
KENNEDY: Yes. Okay. And so whether in fact CQC were told when you saw them in February or later, did they not need to be told about a rise in mortality?
KELLY: I -- I think yes, on reflection we, we could have mentioned that but I think Ian and I -- Ian Harvey and I needed to understand fully the Thematic Review and then pull all of that together. I don't think we felt that we had all the information at that time because it hadn't all been pulled together but recognised we could have told the CQC more at that time.
KENNEDY: And certainly by March, when you got the final Thematic Review; correct?
KELLY: Yes.
KENNEDY: All right. I just want to deal with one other matter and it's this and it relates to the Thematic Review. You have said in answer to Mr De La Poer's questions that the Thematic Review had raised concerns in relation to clinical care and you used that -- you used that as a way of explaining perhaps your understanding of mortality later on in 2016, is that -- is -- am I correct in that's what your --
KELLY: I -- I deduced from the report that there were a number of actions to be taken forward to improve practice, as well as other things that were in that report.
KENNEDY: Can we -- if we can just look through the Thematic Review and just flag one or two points from it.
So if we go on to -- forgive me, just go back one page. It's just worth observing under the purpose of the meeting the second sentence: "An obstetric Thematic Review did not identify any common themes or identifiers that might be responsible for the rise in mortality in 2015." So that was speaking of -- in from a neonatal perspective the obstetric review hadn't provided any assistance; correct?
KELLY: Yes, but there were a number of actions attached to that report as well from an obstetric perspective.
KENNEDY: Again perhaps that is something I need perhaps to come back to on another day. If we then go on to -- I have got -- if we go on to the next page, we can just see in relation to -- just pick up three cases. I am just going to pick up A, C and D, which are the ones you considered in July. So there was a comment in relation to the umbilical venous catheter, UVC, and we can see three lines president bottom: "No PM evidence of line or UVC related complication." There's a reference to a congenital abnormality. Then it says this: "Agreed agreement today that the related complication very unlikely to have caused arrest." So whether that is the complication of the UVC or the congenital complication?
LADY JUSTICE THIRLWALL: It says "line related".
MR KENNEDY: Forgive me.
KELLY: I think that to do with line insertion and they pulled the line out.
MR KENNEDY: Forgive me, I am sorry, so that is the UVC. I am reading from a different version so I am skipping between the two. So the line related complication. So there is no postmortem or apparently clinical review correlation in relation to the UVC; correct?
KELLY: Correct.
KENNEDY: Then if we look at [Child C], final sentence in the main box: "Agreed PM report but no cause for deterioration identified." Again there's reference further up to a displacement of the UVC. Then in relation to [Child D], so next one down, you will see that there's an entry about halfway down: "Group felt initial delay in starting antibiotics very unlikely to have been contributory to death."
KELLY: Can I interject there, please, because on the far column on the right-hand side it then talks about some of the clinical deficiencies that needed to be picked up in training, ie delayed cord clamping, staff to be aware of the policy, continued to emphasise trainee doctors' awareness of sepsis guidelines. These are actually quite key clinical elements.
KENNEDY: I appreciate that but in the case of [Child D], that was specific, the delay in starting antibiotics which is the importance of following sepsis guidelines?
KELLY: Yes, and we did a Level 2 Investigation on [Child D].
KENNEDY: Forgive me?
KELLY: We did a Level 2 Serious Incident Investigation on [Child D] because of those issues around sepsis.
KENNEDY: Indeed, but the conclusion of the Thematic Review was a delay in starting antibiotics was very unlikely to be contributory to death. We can see that here.
KELLY: Yes, in the middle.
KENNEDY: Yes. If we -- if we go on then, please, to page 7, we can see the themes -- I'm sorry, I am working from a different version. Perhaps if we just quickly bring up 0003251 which is the final version. This is
the February version, and page 7 of that, so 0007. We have looked at this document a number of times. You looked at it with Mr Baker in relation to sudden and unexpected deteriorations and no clear cause of death identified at postmortem. There's a comment in relation to timing of arrests and then in relation to delayed cord clamping, which is one the clinical issues, we can see, not reading through the whole thing, the last sentence where it says: "However there were no cases of severe hypothermia and only one case of mild hypothermia in the cases reviewed, that being relevant to the impact of delayed cord clamping." So that didn't give a clinical concern relevant to understanding cause of death, did it?
KELLY: No, but further on, just above in that paragraph it does talk about "teams had not yet been able to ensure adequate temperature control for all preterm babies close to mum during delayed cord clamping". So I understand what you are saying but -- but if you read that report in its entirety, to me, as a clinician, there were deficiencies in care, albeit the report and some of the postmortems may have said it didn't contribute to death.
KENNEDY: Well, that's the point. In terms of understanding the reason for death, or the cause of death, the clinical concerns that you mentioned in relation to the Thematic Review in the same way as I think you agreed with Mr De La Poer in relation to the RCPCH, those clinical concerns didn't provide an adequate explanation as to cause of death, did they?
KELLY: Not on their own, no.
MR KENNEDY: No, all right. Ms Kelly, thank you. Those are my questions, my Lady.
LADY JUSTICE THIRLWALL: Thank you very much, Mr Kennedy. Ms Blackwell.
QUESTIONS BY MS BLACKWELL
MS BLACKWELL: Mrs Kelly, you have been asked some questions at the beginning of your evidence session this morning now about your background in nursing but I just want to expand upon that for a couple of moments if I may and talk about your full role as an Executive at the time of the events with which this Inquiry is concerned. You were professionally responsible for around about 1,000 nurses and midwives; is that right?
KELLY: That's correct.
BLACKWELL: Yes. We have heard that there were 600 beds in the hospital at which you worked and is it right that there are about 20 cots in the NNU?
KELLY: Yes.
BLACKWELL: And there were about 14 nurses working on that unit; is that right?
KELLY: Yes.
BLACKWELL: You have made reference to the nursing structure that lay beneath you and is it right that as well as working in lengthy office hours within the hospital, you worked in the evenings and at weekends?
KELLY: Yes, that was quite usual.
BLACKWELL: We can see from some of the emails at which we have looked the times at which you were corresponding with your colleagues. Would you be in back-to-back meetings for most of your working days?
KELLY: Yes.
BLACKWELL: And would some of those meetings take you out of the hospital and to other places in the locality?
KELLY: Yes. As we mentioned this morning, I had a key role in working with the local university.
BLACKWELL: Yes.
KELLY: And also a profile across Cheshire and merse as a region, in terms of leadership and nurse development, so there was number of times where I was out of the organisation.
BLACKWELL: You have expressed already the number of emails that you would receive on a daily basis?
KELLY: Yes.
BLACKWELL: What did you wear to work?
KELLY: I was really keen to demonstrate to my teams, ie the 1,000 nurses and midwives, that I was a nurse and I was the nurse on the board. So I did have a uniform and I did work clinically and that would be on a regular basis. And actually that gave me a full appreciation of challenges on the shop floor that I would be able to articulate at the board.
BLACKWELL: Was wearing a uniform obligatory in your position?
KELLY: No.
BLACKWELL: Was working clinically obligatory in your position?
KELLY: No.
BLACKWELL: But you chose to do both of those things?
KELLY: Yes.
BLACKWELL: Thank you. You have been asked more recently about the Serious Incident Panel meeting on 2 July of 2015 --
KELLY: Yes.
BLACKWELL: -- by both Mr Skelton and also Mr Kennedy. Are you in any doubt as to whether or not
Eirian Powell was present at that meeting?
KELLY: No. She wasn't at that meeting.
BLACKWELL: And are you in any doubt about whether or not Lucy Letby's name was mentioned during that meeting?
KELLY: No, she wasn't mentioned at that meeting.
BLACKWELL: We know because I took Mr Brearey to it, Dr Brearey to it when I asked him questions that immediately following that meeting you sent him an email.
KELLY: Yes.
BLACKWELL: Do you remember?
KELLY: Yes, I do.
BLACKWELL: I'm not going to ask that we put it up, but I will read out to you some of what you said in that email to him: "It was reassuring to know that each case had been looked at in such detail and that we recognised that some areas required further review ..." And that you offered to speak to Dr Brearey if he wanted to talk through anything in Ian's absence because I think that Mr Harvey was away from work at that time?
KELLY: That's correct.
BLACKWELL: Yes. Did Dr Brearey ever respond to that offer to talk through with you anything that he wanted to?
KELLY: No.
BLACKWELL: Did he ever come to see you or speak to you to raise any concerns following that meeting?
KELLY: No.
BLACKWELL: Was the next that you heard from Dr Brearey his email to you in May of the following year?
KELLY: Yes.
BLACKWELL: All right. Well, in between those times we know that you received several copies of the Thematic Review, first of all in February, and then later on in March, and you have been asked questions about a lack of urgency --
KELLY: Yes.
BLACKWELL: -- in your actions or reactions to being provided with those reports. Now, I would like to put up an email which we have seen before, but to take you through different aspects of it. It's at INQ0003138 and please may we look at page 2. This is the email which you received from Dr Brearey on 4 May when the meeting that was originally arranged for that day had to be cancelled and you were looking for a new date and if we look at the top, please, this email is the one that we've seen before. This is his response after the meeting had been cancelled: "Thanks, Alison, "There is a nurse on the unit who has been present for quite a few of the deaths and other arrests." Mr Skelton asked you about the raising of the prospect of other arrests. It's this I want to ask you about: "Eirian has sensibly put her on day shifts." What did you take from Dr Brearey telling you that he thought that moving Nurse Letby to day shifts was a sensible move?
KELLY: Yes, and the impression I got from that email was it was to provide support and welfare for Letby, as we would with any other nurse who was struggling. We would sensibly move them from nights to days.
BLACKWELL: Did he, around about this time, ever suggest that she should be either supervised or taken off the ward?
KELLY: No.
BLACKWELL: "But can't do this indefinitely." He goes on to say: "It would be very helpful to meet before she's due to go back on to night shifts." So did that suggest to you that he was contemplating that a time would come when she would go back on to night shifts?
KELLY: Yes.
BLACKWELL: Yes: "There is some pressure regarding staffing numbers with this at the moment." What did you take him to mean by that?
KELLY: I think it felt to me that there was some staffing challenges and that they were lacking on the night shifts. So, therefore, we needed to have a conversation to make sure that the unit was sensibly staffed.
BLACKWELL: He gave evidence to this Inquiry that: Several weeks before this, in fact once the Thematic Review was in the process of being completed back in February of 2016, he had requested an urgent meeting with Ian Harvey. Did you know anything about that?
KELLY: No.
BLACKWELL: Did he ever seek an urgent meeting with you to discuss these matters?
KELLY: No.
BLACKWELL: Did he ever email you in those terms?
KELLY: No.
BLACKWELL: I would like now to go to INQ0003089, please, and to look at the manner in which you were being addressed by Eirian Powell about these matters at around this time.
Now, if we can go to page 2, please. We have looked at the email at the bottom of this page on several occasions today and you have given evidence that you took some comfort, that's my word, not yours, from the way in which Eirian Powell signed off this email when she said: "Despite reviewing these cases there was nothing obvious that we were able to identify. Therefore your input would be valued." Did you see any sense of urgency --
KELLY: No.
BLACKWELL: -- in what Eirian Powell was suggesting to you there?
KELLY: No, not at that time.
BLACKWELL: Thank you. We see your response above on 21 March and please could we go back to page 1 now to see the terms in which Eirian Powell was addressing you the following month on 14 April: "Hi Alison, I was wondering what your thoughts were after going through the Thematic Review. I notice that the Thematic Review did not include the medical team that were involved. I have therefore attached the document that includes this." Did you take anything in that email as a note of urgency or warning that this matter had to be addressed
and soon?
KELLY: No. It just felt like a general we need a general catch up just to talk some things through. There was no sense of urgency from my respect.
BLACKWELL: Thank you. Moving now to the 11th -- that can come down, thank you very much -- the 11 May meeting. You have not really been asked very much about what went on at that meeting. The Inquiry already knows that it was at that meeting that Dr Brearey went through the results of the Thematic Review which, by that time, had been completed. And the Inquiry has also heard that Eirian Powell and Anne Murphy went through the document that Eirian Powell had prepared in preparation for that meeting?
KELLY: Yes.
BLACKWELL: Dr Brearey has told this Inquiry that in doing so Eirian Powell was acting in an emotional state. Do you agree with that evidence?
KELLY: That is not my recollection of the meeting, no.
BLACKWELL: How would you describe the way in which Eirian Powell and Anne Murphy conducted themselves?
KELLY: They were very professional, but they were very assertive and they were very passionate about articulating the assurance provided for their member of staff. But in addition to that, they were also equally as assertive about some of the clinical challenges that they were having on the unit at that time, for instance transport issues.
BLACKWELL: What was Dr Brearey's reaction to their assertiveness and the issues that they were bringing up during the course of the meeting?
KELLY: He, he didn't really react to what was being said. He was very focused on going through the Thematic Review in terms of the clinical care and the clinical cases.
BLACKWELL: Can I ask you this, please. Did he ever mention deliberate harm?
KELLY: No.
BLACKWELL: Did he challenge Eirian Powell and Anne Murphy about what they were saying?
KELLY: No.
BLACKWELL: And when you received his follow up email, which I took him to, I am not going to ask that we look at it now, in which he said that he was, and I'm paraphrasing again, content with the outcome of the meeting, what did you take that as being?
KELLY: That we all left that meeting on 11 May agreeing with the actions to be taken and that he was happy that we were taking the appropriate action and
then he cascaded that to his colleagues.
BLACKWELL: Did he, like you, express that he thought it was a helpful meeting?
KELLY: It was a helpful meeting, yes.
BLACKWELL: Yes. And did he at any stage following the meeting concluding on 11 May and between 23 June ever approach you or as far as you know any of the other Executives to bring any further concerns to your attention?
KELLY: No.
BLACKWELL: Now, it was put to you this morning that by this time doctors believed that Lucy Letby was murdering babies. Had that ever been suggested to you in those terms?
KELLY: No.
BLACKWELL: The Inquiry has heard that on 24 June, following the death of [Child O] the previous day, Dr Jayaram met Karen Townsend in the cafe at the hospital and raised as the third item on an agenda with her the concerns that the Consultants had and in particular in relation to [Child K], I think, which was mentioned -- or, rather, sorry, not in relation to [Child K] but in relation to the Consultants' concerns?
KELLY: Yes.
BLACKWELL: How did that come to your attention?
KELLY: That was raised up through Karen Rees because Karen Townsend had asked her earlier in the day following that meeting to go and find out what was going on and then that sort of escalated as time went on to the actions that we then took following the deaths of Baby O [Child O] and Baby P [Child P].
BLACKWELL: All right. Now, I have mentioned [Child K] there. Of course by 24 June, [Child K] had collapsed and died and that had happened back in February of 2016, the day before the CQC meeting. When was that brought to your attention?
KELLY: Not until the following year when Dr Jayaram had that conversation with Sue Hodkinson.
BLACKWELL: Well, I'm going --
KELLY: So there was nothing raised at that time of the incident with us.
BLACKWELL: Do you know whether or not the Consultants were being pressed for evidence of the association with Letby and how that was connected to the deaths or collapses?
KELLY: We were constantly asking questions of the clinicians of evidence and more information and it's only further down the line, in 2017, that we were told about Baby K [Child K], which was extraordinary because that could have been raised the year before.
BLACKWELL: All right. We know that on 6 July of 2016 you contacted the NMC?
KELLY: Yes.
BLACKWELL: And you had a conversation with Tony Newman after which he sent the email which we have looked at this afternoon setting out the seven points which you then corrected in part, and do you agree that that accurately reflects the conversation that you had had with him on that day?
KELLY: On that day, yes, I do.
BLACKWELL: All right. It's been suggested to you that had you activated the safeguarding policy at this time that Lucy Letby would have undoubtedly been suspended and that the police would have been informed and that matters would have taken their natural course. We know that the police were told about the concerns in April of 2017 and that Lucy Letby wasn't arrested until July of 2018. Do you know whether the police took any action to ensure that she was suspended or somehow supervised in whatever role she had at the hospital between those dates and during the course of their investigation?
KELLY: There are some email evidence from the police asking whether she was part of a nurse bank, which means you can work anywhere, not just in the hospital but elsewhere, and that was a follow-up action that Dee Appleton-Cairns took.
BLACKWELL: Yes.
KELLY: However, other than that, nothing as far as I'm aware was undertaken and indeed further conversations with the NMC it became apparent that there was little concern about putting restrictions on her practice until significant time down the investigation, which I thought was quite inappropriate because it was almost at the end of the investigation that action was going to be taken about restricting her practice.
BLACKWELL: Thank you. Moving on to the RCPCH report and the questions that you have answered today about the fact that one of the considerations and recommendations was that action was required in terms of an HR investigation, which I think has been described as a disciplinary investigation. Did you consider any difficulties in carrying out that recommendation and if you did, what advice did you take about that?
KELLY: So I think as I mentioned earlier, we were struggling at the time looking at our HR policies internally to actually truly understand what we would be -- what policy we would be using to discipline Letby on and that's when myself and Sue Hodkinson in
particular sought external HR legal advice, which was really supportive at the time. So it wasn't that we ignored that recommendation; it's just that we took a different tact based on external advice.
BLACKWELL: All right. Next topic, Dr Hawdon's report, please. You have given evidence today that your understanding of that report was that there were a number of examples of sub optimal care raised and you have explained your understanding about the extent of the effect of such sub optimal care. Now, I would like, just very briefly please, to look at INQ0003172 and please could we go to page 44. Thank you. This is the page that deals with the summary of cases where we can see they are divided into two groups: the first group is where the death or collapse is explained but may have been prevented with different care and learning may improve the outcome for other babies. So what did you understand that to mean?
KELLY: To me that demonstrated that care wasn't being delivered in the standards that we would expect for neonatal care and there was obviously some areas of improvement required.
BLACKWELL: And that the deaths or collapses may have been
prevented with different care?
KELLY: Yes.
BLACKWELL: And we can see that within Group 1 are [Child H], [Child Q], [Child E], [Child C] and a series of other children and then we can see in the second group the death or collapse is unexplained and it's the investigation of these cases which would potentially benefit from, we know, the local forensic review as to the circumstances and we know that that took place.
KELLY: Yes.
BLACKWELL: Yes. Thank you. We can take that down, please. Two further matters if I may. The first is in relation to the meeting with Mother C. It's been put to you that Mother C's recollection is that you were present, you were one of two female clinicians present at that meeting and it's already been remarked upon by Counsel to the Inquiry this morning that you are a person who almost religiously takes a note --
KELLY: Yes.
BLACKWELL: -- in the meetings that you are present in and a good note. Have you looked in the notebooks which have been provided to you, copies of the notebooks by the Inquiry, as to whether or not you have any note at any time of
meeting any of the mothers of any of the indictment children?
KELLY: There was no record in my meeting notes -- in my notebook I should say. As part of my role, I would very often meet with families on the back of complaints or if they had any concerns. I would religiously take notes of those meetings and if there was anything that was of concern that needed follow up I would usually reflect that back in a letter. I have no evidence of any of those notes that may have been taken at that meeting with Mother C. So I can only assume, I'm not saying it didn't happen, but I can assume that I wasn't there.
BLACKWELL: Right. And is there any record at all that you can find of a follow-up letter?
KELLY: No.
BLACKWELL: Thank you. Finally this, I said I would come back to it. It's the meeting on 16 March of 2017 when you say it was first brought to your attention that Dr Jayaram had witnessed an incident at the cot of [Child K] that he concluded was her inflicting deliberate harm. Now, during the course of that meeting, we have looked at note already, you are recorded as having said, "Why not before"?
KELLY: Yes.
BLACKWELL: And that was you have told the Inquiry your reaction to, well, to what?
KELLY: Shock that we had not been told about that before.
BLACKWELL: And by way of an example of an explanation as to why that hadn't come out before, Counsel to the Inquiry took you to the note that records it being reported during the course of that meeting that the Consultants felt like battered wives and that the Executives were the abusers. As an Executive, how did you feel about the fact that the sensitivity of the two Consultant leads on the neonatal unit and of children's services felt so bruised that they compared themselves to battered wives?
KELLY: Yes, shocked. Shocked and an inappropriate comment to make.
BLACKWELL: And did you find this excuse for Dr Jayaram keeping the eye witness evidence about [Child K] to himself for a full 13 months, during the continuing collapses and deaths of the neonates, and you, as you have told the Inquiry, repeatedly asking for evidence of Letby's involvement --
KELLY: No.
BLACKWELL: -- ample justification for his silence?
KELLY: No.
MS BLACKWELL: Thank you. My Lady, that concludes my questions.
LADY JUSTICE THIRLWALL: Thank you very much, Ms Blackwell.
Questions by LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: One of the things you said a bit earlier -- we are nearly finished.
KELLY: That's okay.
LADY JUSTICE THIRLWALL: -- a little bit earlier was that you think that you should have been more supportive of the Consultants --
KELLY: Yes.
LADY JUSTICE THIRLWALL: -- you said that earlier in your evidence. This is really just for my understanding. In what way were you at all supportive of the Consultants?
KELLY: I think what I was meaning by that was more on a pastoral perspective.
LADY JUSTICE THIRLWALL: Yes.
KELLY: So I know that my colleague Sue Hodkinson was conscious that there was a lot of stress in the team with everything that was going on at the time and she may refer to some of that in her, her evidence. But I think what we could have done better on
reflection is provide more formal support for that team. I made sure --
LADY JUSTICE THIRLWALL: When you say "that team", you mean the Consultants' team.
KELLY: The Consultant team, sorry, yes. From a nursing perspective, there were quite good structures in place to get that organised; probably not so much with the Consultant body. So -- but I do, on reflection, I think we could have put more support in to -- to get them through the very tricky time that we had.
LADY JUSTICE THIRLWALL: Yes. In fact, was there any support put in?
KELLY: I think from -- I think Occupational Health support was offered to a couple of people, but more of a -- as a collective really and I don't think we asked the question at that time what: What extra support do you need? Particularly at the time of the grievance which was quite tricky in terms of relationships and I think they were feeling quite upset by the whole process. So I think, on reflection, we could have put some formal mechanisms in place to support them at that time.
LADY JUSTICE THIRLWALL: Thank you. Then just one last matter if I may.
You have been asked repeatedly by different people whether you took the Consultants' concerns seriously and what I would just like to ask you about a little bit is what were you being told were the views of the senior nurses about what the Consultants were telling you? We have seen what's said in the meetings --
KELLY: Yes.
LADY JUSTICE THIRLWALL: -- but presumably there would have been conversations between you and Karen Rees, for example. What was her view of it?
KELLY: Yes, and Karen Rees in particular was very passionate about her profession and she was very upset by what she was hearing from the Consultant body. But we all recognised at the time that we needed to get lots of information together to get a true picture of what at the time was a very complicated story. So I think some of the comments that were being made by the Consultants did affect some of my team to the point where I needed also to provide additional support for my team and that included the Risk Management Team as well, not just the nursing component.
LADY JUSTICE THIRLWALL: Yes. Ms Rees gave some evidence about being asked to take Lucy Letby off the ward and you will be aware of that exchange --
KELLY: Yes.
LADY JUSTICE THIRLWALL: -- with Dr Brearey.
KELLY: Yes.
LADY JUSTICE THIRLWALL: I don't need to take you back over that. But she told us that she had had experience in an earlier job of some cardiologists wanting a nurse removed from their unit or something like that.
KELLY: Yes.
LADY JUSTICE THIRLWALL: I haven't got the precise wording, and she was incensed by that and having dug into it discussed there was an ulterior motive for that. And in this case she told us, and I am sure you're aware of this, that she wondered whether there was some sort of relationship between Lucy Letby and Dr Brearey. Did she talk to you about that?
KELLY: She mentioned that on the -- not in those detailed terms.
LADY JUSTICE THIRLWALL: No.
KELLY: But felt there was a personal issue, was how she phrased it when she spoke to me on that Friday evening around the death of Baby P [Child P]. So when she came to see me she -- she was very, very upset and she got the impression there was something personal, she said "something personal". We didn't go into any detail of what she thought that was.
LADY JUSTICE THIRLWALL: No and we know because she told us --
KELLY: And she --
LADY JUSTICE THIRLWALL: I'm so sorry. I didn't mean to cut across you.
KELLY: -- potentially she -- but she was quite exercised by that.
LADY JUSTICE THIRLWALL: Yes, she was quite angry about it, wasn't she?
KELLY: Yes. Yes.
LADY JUSTICE THIRLWALL: And she told us that she went and asked Lucy Letby about it and she said there was nothing, nothing to it.
KELLY: I believe she did, yes.
LADY JUSTICE THIRLWALL: But we know, don't we, that that information became sort of currency within the hospital, don't we. So does that give us any clue or did it give you any clue about whether or not the nurses perhaps thought that doctors were just making this up?
KELLY: They may have done. I think -- you're absolutely right, I think one comment was made and before you knew it there were lots of rumours going round --
LADY JUSTICE THIRLWALL: Yes.
KELLY: -- and some inappropriate comments made
corridor conversations --
LADY JUSTICE THIRLWALL: Don't worry, don't worry. I mean I know there's been a lot of that and we've heard evidence about it.
KELLY: Corridor conversations, et cetera.
LADY JUSTICE THIRLWALL: Yes.
KELLY: So it got very -- it became very insensitive to everybody involved and what was fact and what wasn't fact was not clear.
LADY JUSTICE THIRLWALL: No. All right.
KELLY: Yes.
LADY JUSTICE THIRLWALL: Thank you very much indeed. Does anybody want to ask anything arising out of what I have just asked? No. In that case, Mrs Kelly, thank you for coming. You are free to go.
KELLY: Thank you.
LADY JUSTICE THIRLWALL: Now, tomorrow I think we have got Ms Hodkinson coming.
MR DE LA POER: We have and Dr Rackham.
LADY JUSTICE THIRLWALL: Yes. I would like to avoid everyone, particularly the shorthand writer, having to sit for another long day. Can we just have some discussion before everyone disperses to make sure that we have got enough time if we start at 10 o'clock to finish within a reasonable time, namely by 4.30? So if I can just leave that to those who are involved. On the face of it, it looks fine but I would just like people to have a proper look and think about how long it actually takes to ask questions and of course receive the answers. So I will otherwise see you tomorrow at 10 o'clock.
(6.05 pm) (The Inquiry adjourned until 10.00 am, on Tuesday, 26 November 2024)
(Dr Oliver Rackham also testified on this date. His testimony is on the Thirlwall Doctors page.)
Witness: Susan Hodkinson: Director of People and Organisational Development
LADY JUSTICE THIRLWALL: Good morning. Ms Langdale.
MS LANGDALE: May I call Ms Hodkinson, please.
LADY JUSTICE THIRLWALL: Swear in the witness, please.
MS SUSAN HODKINSON (sworn)
Questions by MS LANGDALE
LADY JUSTICE THIRLWALL: Thank you very much. Yes.
MS LANGDALE: Ms Hodkinson, you prepared a statement dated 14 August 2024 for the Inquiry. Can you confirm that the contents are true and accurate as far as you are concerned?
HODKINSON: Yes, I can.
LANGDALE: You tell us in paragraph 1 that you are making the statement in your capacity as the former Executive Director of People and Organisational Development at the Countess of Chester Hospital. Can you just tell us what that role entailed, please?
HODKINSON: If it's possible first before going through that, may I say a few words?
LANGDALE: Yes.
HODKINSON: Thank you. I firstly would like to say, to
pass on to particularly the Families and to all members of the Inquiry my deepest sorrow and my condolences on the loss of your loved ones. I can really not imagine how this -- this is for you all and there isn't a day that doesn't go by that you are in my thoughts. The Countess when I worked there was my local Trust and it is still my local Trust. I have been treated there, members of my family have been treated there, members of my family have been born there and also members of my family have received the services from the neonatal team as well in the past. So for this to happen not only whilst I worked there but also being a member of the local community was something that I would never, ever have envisaged and I would not wish on any other person to go through this. I am very grateful to the Inquiry for having the opportunity to tell the Families and also all of the Inquiry members the reasons why I took the decisions and the actions that I did at that time, eight years ago. I am also grateful to the Inquiry for the chance to have some time to reflect and also to support potentially some of the recommendations that may come out in the Inquiry report that may support not only my former colleagues at the Countess, and many of them who I still know now, but also every single member of staff
and every organisation within the NHS doing the incredibly hard job that they do today and will continue to do in the future. Thank you.
LANGDALE: Your role at the time Director of People, what did that entail?
HODKINSON: It was a very extensive role. So the key -- I suppose my key take on it was to support all members of staff within the Countess. We had roughly around about 4,400 members of staff and key responsibilities was that I was the Exec Lead for the Trust People Strategy which comprised of elements in relation to equality, diversity, inclusion. It comprised around the education, the leadership, the competence of staff. I also was the Executive Lead for a shared service which supported around about 19,000 staff across five organisations which was comprised of both recruitment, flexible staff, payroll, pensions and Occupational Health. In addition, the learning development of the teams, providing the opportunity for people to raise concerns through the Freedom to Speak Up -- or Speak Out Safely process as it was -- I was initially -- and I was also, I think, very active within by the Cheshire and Merseyside region and also within
the Northwest HR Directors Forum as well. So not only did I have my responsibilities within the Countess, I had responsibilities within the local region and the wider region as well.
LANGDALE: How do you think your role had the potential to affect the wider culture in the hospital; the Director of People in the wider culture?
HODKINSON: Sorry?
LANGDALE: How did your role affect that wider culture in the hospital?
HODKINSON: I think how I set the tone around how our staff felt, were led by their managers, managers or leaders, how they were educated, how they were supported when they joined the Trust, you know, those first couple of weeks and things, which are really important but also how they developed throughout their career and I think I took a particular, I suppose, point around this: to understand how it was to be a member of staff at the Countess. I did many -- and this was my own decision to do this, I did many back to the floor exercises which was really insightful seeing how people treated me in different ways. For example, when I was a domestic assistant in A&E in the domestic assistant uniform, not being seen by certain people, which was really interesting. I think also as a porter, cleaning the beds, you know, doing, doing the downgrading -- you know, the -- apologies, the servicing of the beds, shadowing Consultants and anaesthetists in surgery. Various different elements. You know, and that continued throughout my time at the Countess. I wanted to get a real sense of how it was to be a member of staff there.
LANGDALE: Your experience before you came to the Countess, you say to us you started your career in 1995 as an assistant manager at WHSmith?
HODKINSON: Yes.
LANGDALE: In 1998 became a store manager at Iceland Foods which involved the management of two stores with teams ranging between 20 and 30 employees. January 2002, you became a support centre human resources manager, responsible for providing HR advice, guidance and support to the buying and marketing departments. Your first role within the NHS was as an electronic staff record benefits realisation manager and ESR account manager. That was in 2005 to 2008. You became strategic ESR account manager lead for the North West in June 2010.
In any of those roles, were you subject yourself to regulation, professional regulation of any kind?
HODKINSON: So there is a point as well that you have missed there. Apologies, Ms Langdale. I also was an area human resource manager as well, so where I was essentially looking after -- I was the HR lead for a region when I worked for Iceland as well. So, you know, my actual HR career as such started in around about February 2000. So, you know, from then to now that's what, 24 years of being a people professional as such. So I think in relation to your point about regulation, I started very early on undertaking the I suppose the route into professional qualification around from the Chartered Institute of Personnel Development. Obviously in those days remote learning wasn't what it is now and I had to -- for my role when I was working with Iceland I had to move up to Newcastle so I tried to remote learn for a period but it was very difficult to do that at that time. So essentially I still, even though I wasn't fully qualified at that stage, I classified myself as under the regulation of, I suppose, our professional body, the CIPD.
LANGDALE: What did that require of you in terms of obligations to patients or to baby safety, safeguarding?
HODKINSON: At which point?
LANGDALE: At any point in your career and the time that you are Executive at the Trust, did you feel responsible or accountable to a professional body for the way in which you made decisions around baby safety or patients?
HODKINSON: I think it goes without saying that every -- every member of staff has that professional -- has that professional accountability. I think unlike the NMC, the GMC, the HCPC, all of the other regulatory bodies that exist, from a non-clinical perspective there isn't a professional body there at the moment. However, as a people professional, I would see that I am obligated to the Chartered Institute of Personnel Development but alongside that I think it goes without saying, especially because it's my local Trust, that patient safety was absolutely paramount and the well-being of all members of the Trust was paramount to me.
LANGDALE: Shall we have a look at the policies? You refer to various policies in place at the time in your statement and if we can go, please, to INQ0003012, page 1. This is the 2013 Speak Out Safely policy that was in place.
We see the purpose set out there: "This policy supports staff by ensuring their concerns are fully investigated and that there is someone independent outside of their team to speak to. For the purposes of this policy the term 'whistleblowing' refers to the disclosure by workers of malpractice as well as illegal acts, miscarriage of justice, dangers to health and safety [et cetera]. "The Countess of Chester is committed to openness, transparency and candour so that staff feel able to raise concerns and/or debate issues of concern about healthcare matters in a responsible way without fear of victimisation." If we go to page 3, we see under "Process to be followed to express a concern": "When staff wish to express their concern about patient care, they should normally do so to their line manager." At page 6, we also see there are designated officers, as you have said already including Mr Harvey, Ms Kelly and yourself. Just to be clear, the policy doesn't require that those concerns need to be said in a formal environment, do they? They could be said in a car park, a corridor wherever someone has a chance to raise a concern and it feels right to raise one. It is not important where you are physically sited to raise a concern?
HODKINSON: No, but it typically was either -- I don't think necessarily concerns would be raised in the car park as such but they were typically either brought -- there was multiple different concerns throughout my time within being an Exec Director of People at the Countess where either members of staff emailed me, put in time in through my secretary or, you know, rang me to raise a concern. So there was multiple different mechanisms to do that.
LANGDALE: Of course. If we go to page 7, at the top: "The person making the disclosure will be asked whether or not he/she wishes to make either a written or verbal statement. In either case, the designated officer will write a summary of the interview which will be agreed by both parties." If we go to page 8. In certain cases, three paragraphs up from the bottom: "... such as allegations of ill treatment of patients, exclusion from work on full pay may have to be considered immediately." That's made clear at the bottom as well. "If the Chief Executive, as a result of the
investigation, decides there is a case to be answered by the person against who the disclosure has been made ..." So simply a case to be answered. "... the Trust disciplinary procedure will be invoked. If there appears to be evidence of a criminal act, the Chief Executive will consult the police before invoking the disciplinary procedure." So standing back, it was perfectly plausible, wasn't it, that where these concerns had been raised at the very early stage by Dr Brearey in the Thematic Review highlighting patterns and concerns of events at night for babies that the Chief Executive might have responded to those concerns in -- in the context of this policy and removed Lucy Letby and referred the matter to the police?
HODKINSON: Mm-hm. Yes, so is there a question or --
LANGDALE: Yes. Do you accept that that would have been an appropriate use of the policy, and given the Thematic Review and the concerns about Sudden and Unexpected Deaths and them happening at night, that in 2015 this policy could, and if it had been employed, have made a real difference?
HODKINSON: I accept that the policy states that. I think at that time eight years ago there were multiple different factors at play and I -- I believe that it
wasn't as clear-cut as how things may be seen now. And certainly that was -- that was the key point where there would be no hesitation for me or for any other member of the Executive Team at that time in contacting the police but I --
LANGDALE: Do you agree that there was nobody who suggested to Dr Brearey or Dr Jayaram that they sat down with an interview with you as a designated officer or Mr Harvey or Ms Kelly, write down their concerns so that the Chief Executive could make a decision as to whether there was a case to answer, and an investigation was required?
HODKINSON: I think there was a meeting on 30 June 2016 of which I was party of which was only a number of days after I first knew about the specific details and the concerns where the Consultants did state they were extremely concerned around potential of one member of staff being involved. However, it was also clear to me in that meeting that there were also concerns that the care that was provided was not ideal. Dr Brearey did say that --
LANGDALE: We are going to go to the minutes of those?
HODKINSON: Sorry.
LANGDALE: We will go to 30 June, there is a lot of meetings on that day.
HODKINSON: Okay.
LANGDALE: But in principle you agree that this policy was a route through where there was concerns of a criminal act and suspicion?
HODKINSON: This policy was. There were a numerous other policies that could have been used as well and I think it's important that the Inquiry is aware that this policy was considered right at the outset as well.
LANGDALE: And was rejected, so it was never going to be used?
HODKINSON: Sorry -- sorry?
LANGDALE: And rejected as a tool because there were never written interviews taken in the way I described or a decision made by the Chief Executive, was there?
HODKINSON: Sorry, I was just trying to explain as well. It was not rejected. I can see how that could be seen now but I can honestly say it was not rejected. It was considered right at the outset. You know, I know from -- the Inquiry probably has seen the copious amounts of notes I have taken and I remember on 27 June it was also raised under a Speak Out Safely element that we should consider it. And because of all of the various different conversations that were taking place with Dr Brearey, with -- with Dr Jayaram, with others, some of the obstetricians as well, it was being captured already as part -- and that was all being considered. So whilst it -- the Inquiry may believe that it was rejected, it certainly was not.
LADY JUSTICE THIRLWALL: Was it used -- I'm sorry Ms Langdale. Did you use this policy?
HODKINSON: It was -- it was considered under this policy as well and --
LADY JUSTICE THIRLWALL: Sorry, so you did use this policy?
HODKINSON: Absolutely. So --
LADY JUSTICE THIRLWALL: Let me make a note of that.
HODKINSON: -- in 2017 I know we formally recorded it as well but it was absolutely badged under this policy.
MS LANGDALE: Ms Appleton-Cairns gave evidence to the Inquiry to say that yourself and Mr Harvey chose not to follow the policy, that the meetings you say were happening and concerns may have been being documented in meetings but you chose not to follow the policy formally in the way I have described, where you set out concerns in an interview, they are then considered whether there is a case to answer, whether there's something that needs scrutinising.
HODKINSON: I think if you look at all of the conversations, the meetings that were had, everything was documented, everything was detailed within going through to the Executive Team. So I can see why it, it's perceived that we didn't choose to use this policy. But that was not the case, it was considered under this policy.
LANGDALE: To follow --
HODKINSON: Absolutely.
LANGDALE: To follow the policy?
HODKINSON: It was considered under this policy and without doubt.
LANGDALE: The grievance policy, if we can go to that please, INQ0002879, page 99. The purpose is set out on that page: "The Trust acknowledges from time to time a member of staff may feel aggrieved by an incident." If we go over the page, "Mediation", to page 2. Mediation set out there is a voluntary process, isn't it?
HODKINSON: Mm-hm.
LANGDALE: At any time, did Mr Harvey or Mr Chambers ask you to confirm whether it was a voluntary process or not; in other words you couldn't compel a member of staff to undertake mediation?
HODKINSON: I don't recall specifically but I do have some reflections around the mediation process. I don't know whether it's worth me going through those now.
LANGDALE: Not now. We have a lot to go through so we will get to all the topics --
HODKINSON: I understand.
LANGDALE: -- rest assured. Did you know that it was voluntary at the time of events --
HODKINSON: Yes.
LANGDALE: -- unfurling?
HODKINSON: Yes.
LANGDALE: Did you yourself ever make clear to Dr Jayaram or Dr Brearey that it was voluntary and they did not have to mediate with Letby if they didn't want to?
HODKINSON: I believe I did on 15 March 2017. I am -- I am sure I did with Steve -- sorry, with Dr Brearey. But I definitely did with Dr Jayaram on 15 March.
LANGDALE: In terms of grievances generally within the Trust, was it the case that the HR team supported those hearing the decision, so in this case it was Annette Weatherley, we will come to the detail later, but we know Dee Appleton-Cairns was supporting her. What was your understanding that HR would do, produce written materials for the hearing manager?
HODKINSON: So I think if -- correct me if I am wrong, are there two questions there as well? So what's typically the process from a HR perspective and then what, what they would actually do. So I think if both within my time at the Countess and at Liverpool Heart and Chest, the HR team were there to support and I suppose make sure that the process happened in as ACAS guidelines are in a full and fair way.
LANGDALE: In a fair way?
HODKINSON: In a full and fair way.
LANGDALE: Right.
HODKINSON: That is the guidance from ACAS as well. And I think as a large employer as the Countess was, and as the NHS is, we always have to comply with ACAS guidelines as well, or should always try to do. So I think the role of the -- my team, as it was then, would firstly be to be supporting the investigating lead, the investigating officer, and ensure that those -- those meetings took place appropriately and that members of the staff who were involved in any grievance were also supported as part of that. And then there would be, as is the same for a disciplinary process, you know, HR members of the team are supporting the person who is the grievance hearing manager as well to ensure that the process is followed as per policy and if there are any queries that need to be taken forward there is access to legal advice as well.
LANGDALE: So full and fair. What does that look like for a grievance process, a full and fair process?
HODKINSON: That the process is responded to in a timely manner, that there's an opportunity for informal and formal proceedings to take place if necessary and that there is a way in which all parties' thoughts can be considered.
LANGDALE: Should people attending for an interview know what it is that they are supposed to have said or done before they attend a grievance interview or not?
HODKINSON: Not necessarily. Not necessarily. You know there -- they potentially would be given some insight but there will be other aspects that come up as part of that interview that they may not be aware of. But I think it's important to remember that every member of staff that goes into that kind of situation is afforded the opportunity to have either an employed representative from the Trust supporting them or a Union-based representative as well.
LANGDALE: The Inquiry has obtained expert evidence on the subject of grievances, have you seen that --
HODKINSON: I have yes.
LANGDALE: -- from Professor Bowers? Do you recognise or have any experiences of grievances being used as a defensive manoeuvre? Did you understand what was being described there as a defensive manoeuvre?
HODKINSON: Is it possible to bring up the -- is that stated in the report as well, the Bowers report, that point or ...
LANGDALE: Yes, this is the second statement you may have not seen that but it is --
HODKINSON: No, I haven't seen that. Is that possible to bring up at all.
LANGDALE: No, it's not possible.
HODKINSON: No.
LANGDALE: I am asking you about defensive manoeuvres. Have you ever known about a grievance being used where somebody's being criticised or concerns have been raised about them and in consequence they raise a grievance, it's a defence really, it is taking the focus off the concerns made about them and raise a grievance. Have you come across that in your HR experience in the NHS?
HODKINSON: I have sadly, yes.
LANGDALE: So it's something you would recognise or --
HODKINSON: Yes, I would, but I think, you know, the difficulty is that when you receive a grievance you have
to consider the approach to it and it's, you know, I have reflected around the grievance process an awful lot, particularly because I think, you know, there are -- there are elements where it impacted on so many people. I think, you know, if -- if there was an opportunity to have not undertaken the grievance process, then I would have sought that.
LANGDALE: I am not asking about that yet, I was asking you generally. So you have had experience in the NHS as a Director of People and you are familiar with that. It was your practical experience within the Trust, you know people sometimes do that; raise a grievance because concerns have been raised about their ability or what? In what kind of circumstances? You don't need to give me specific cases but in response to what?
HODKINSON: Yes, I have seen that, I have seen that. But I think, you know, the key part is that there were concerns that Letby raised which were not about the care; they were about a number of other different aspects.
LANGDALE: We will come to that. I appreciate they were about the Execs's decision-making actually, weren't they?
HODKINSON: Without doubt, yes.
LANGDALE: Let's deal with that later and focus now on your knowledge -- the policy can come down, thank you -- before 30 June of events because it's not clear when, for example, you first saw the Thematic Review by Dr Brearey which you will have seen later where there's attached to it --
HODKINSON: Yes.
LANGDALE: -- staff rotas and Lucy Letby highlighted around various events that the doctors couldn't medically explain. When did you see that? Can you remember now roughly?
HODKINSON: I think it was after the 30 June meeting. Definitely. You know, the -- the key points that I -- I suppose started to get and, you know, I recall about this now because of the documentation, the key points where this was raised was first was QSPEC, I think it was on 15 December 2015, where Julie Fogarty brought --
LANGDALE: The Brigham review about obstetric deaths and neonatal deaths?
HODKINSON: Yes. I don't recall it being the Brigham review, but if that is what it was called, that's helpful to know. And, you know, going back to that particular QSPEC meeting, it -- it didn't raise any red flags with me. There were other elements on that agenda where I -- I raised different things. But there was nothing in there that raised any red flags, you know, that -- there was I think reference to further review, there was reference to external review of or external panel member as well, looking at it. But myself and no one else, and there was clinical representatives in the QSPEC meeting there, David Semple, Martin Sedgwick and others who are clinically qualified, I am not, no one raised any concerns at that stage. I think the next point was a point around about May I think it may have been about 5 May 2016 within an Exec meeting where there was reference to STEIS being raised which is obviously -- again, apologies, because I am not -- this didn't come under my remit, but it would be around that raising of that -- that risk. So did I triangulate those points at that time? No. But then certainly I think it was on 27 June 2016 where there was a note in my book which was after -- it was during a series of meetings that I had had on that day, where some of those concerns came to light and then particularly the point I recall is 30 June meeting.
LANGDALE: So let's go to the 30 June meeting because you
have many meetings that day, don't you, it is about five, I am not going it take you to all of them. Sometimes the Execs meet early in the day, 9 until 10 --
HODKINSON: Yes.
LANGDALE: -- then 1 until 2 and sometimes you are meeting with the Consultants as well. Looking back, do you think it would have been more helpful if the Execs had continued to have at least one Consultant in all their meetings that they were discussing these matters?
HODKINSON: I think that is a really good question, actually. No, I don't think it should have been one Consultant. I think it -- you know, there were different views coming from others, obviously Dr Brearey was the clinical lead, Dr Jayaram was involved. Apologies whether it was Mr McCormack or Dr McCormack I can't remember but --
LANGDALE: I don't mean at the one meeting when they were all present but I mean the other ones in the day where you might not have been able to get everyone together but just to retain a medical perspective in all of the other meetings?
HODKINSON: Sorry, if you could clarify the question that you are asking me?
LANGDALE: You had meetings in the morning --
HODKINSON: Mm-hm.
LANGDALE: -- and in the afternoon, which we are going to go to in a moment, and before we do, do you think it would have been helpful to retain a medical input from one of those Consultants in the other meetings when they weren't there?
HODKINSON: I think that Dr Harvey, Mr Harvey, though, was representing those views to the Executive Team. He was the -- you know, he was the Medical Director leading the medical portfolio really as well. So ...
LANGDALE: So his presence would have reassured you that you had medical input?
HODKINSON: Yes.
LANGDALE: Can we go then, please, to INQ0015639, page 51. These are your notes so you will be able to read them more quickly than the rest of us and this is a meeting at 10.05 am. It looks as though there was a clinical meeting this morning, you refer to that. Can you tell us on the right-hand side where the brackets are what your notes say and refresh your memory of what was being said?
HODKINSON: It's difficult to read it like this because it's not as clear as it is on relativity as well, even though it is my own handwriting.
LANGDALE: It says: "Agree review, don't go to police. Conditions on this review within two weeks." So it looks like they are discussing doing another review within two weeks, that is a condition?
HODKINSON: Yes.
LANGDALE: "Significant condition. Nurse removed from unit. Excluded from Trust. Non-patient contact area or call police. Nurse is aware, nurse is under OH." Is that Occupational Health?
HODKINSON: Occupational Health, yes.
LANGDALE: "Not aware of suspicions ... IH concerned around safety of unit, not able to function a separate level."
HODKINSON: And then SCBU unit I think that stands for as well.
LANGDALE: And then if we go to the next page: "Nurse -- leave and pull evidence together." What have you said there?
HODKINSON: I think the -- I don't know what the "leave" stands for. "Pull evidence together" would have been information around the nurse particularly I would imagine in terms of her personnel file, looking at the -- the aspects of any -- any information that we had around her particularly.
LANGDALE: So you didn't know much and then you are coming into these meetings on this day, when you are hearing all of this, what are you making of all of that?
HODKINSON: As you can imagine, very concerned. Yes, very concerned. I can't recall, apologies.
LANGDALE: What --
HODKINSON: I can't recall if this was before the meeting that I was involved with the Consultants or afterwards on that day. But yes, very concerned.
LANGDALE: If we go to page 53, over the page, this is your notebook. This was an earlier meeting on that day. Can you see where it says halfway down with an asterisk: "Eirian under significant pressure, very emotional."
HODKINSON: Apologies, I can't.
LANGDALE: There we are, it's been highlighted for you.
HODKINSON: Thank you. Yes, okay.
LANGDALE: "Feels spoken to today." So Eirian was in a meeting with you and you record that. What was she very emotional about?
HODKINSON: I don't know whether she was actually at that meeting. If I look at the representatives at the top, Alison, Ian, Dee, Sian, Gill Galt, Julie Fogarty, Karen Rees.
So I would imagine that either Sian or Karen has described that but I couldn't confirm who had described that.
LANGDALE: So somebody's described that to you and you have written that down?
HODKINSON: Yes.
LANGDALE: That can go down and if we can just have please, INQ0003361, page 1. This is Mr Cross's note of the same meeting on 30 June, the one with Sir Duncan Nichol and the one that we have just gone through your notes for. If we look at "Sue", your contribution further down the page.
HODKINSON: Mm-hm.
LANGDALE: You say: "Is this the last day?" So you are referring there to the day the last day the nurse is working, Letby being on shift on 30 June, do you remember that? You were querying?
HODKINSON: I don't specifically remember saying that, but if Stephen's recorded it, I can see it's there.
LANGDALE: She was going on annual leave but as at the 30th you are saying "is this the last day?", ie before she goes on annual leave presumably?
HODKINSON: I -- I presume, I can't recall that specific
comment.
LANGDALE: So it looks as though she is in the hospital on the 30th and then as you were expecting by the meeting notes for her to go on to annual leave. If we go on to the next page, Mr Chambers: "Can we decide what we are doing?" "Demands" is put there; do we know what that means, demands?
HODKINSON: No, I don't -- I don't know what that means.
LANGDALE: You refer to conditions that the review is done in two weeks. It looks like the Consultants have said if you are going to do a review, two weeks, and the action is for Mr Harvey to get a review done in two weeks. Then the action "staff member" next to you: "Clear articulation of Consultants' concerns to AK to formalise." The action "closure of unit" --
LADY JUSTICE THIRLWALL: It looks as though closure of unit is the next action.
MS LANGDALE: Yes, for Mr Harvey and Ms Kelly. So the action for you Ms Hodkinson appears to be: "Clear articulation of Consultants' concerns to AK to formalise."
HODKINSON: Mm-hm.
LANGDALE: Do you remember that was your task at the end of that meeting?
HODKINSON: I don't specifically remember, no, but however -- and again I can't remember the exact sequencing on the day but I know that in the meeting that I was in where the Consultants were present, I felt then that was a clear articulation of their -- of their concerns.
LANGDALE: So we can go to that meeting which did follow, it is meeting 4 of that day for you. If we go to INQ0015639, page 54. Indeed you say at paragraph 62 of your statement "this meeting was an opportunity for the Consultants to raise concerns". If we go, please, to page 55. The right-hand side. 0055, at the bottom. We will find it. Can you have a look, please, next to JM on the right-hand side, Jim McCormack, and read what he has said there? If you can help us with your notes at the beginning.
HODKINSON: Is it the point at the bottom, apologies?
LANGDALE: It's all the way down, you see "JM" on the right, all the way down?
HODKINSON: Thank you.
LANGDALE: So starts "last thought", can you read that out for us, they are your notes?
HODKINSON: So the last thought in minds member of staff responsible for deaths. External review, went through stillbirth separate -- something -- death review.
LANGDALE: Non death review, is that?
HODKINSON: It could be, it could be. Apologies, I was writing fast. Separate non-death review through the great lengths what the situations were, was, first time about member of staff. Last three days only going on what hearing from paediatrician, nights/days change.
LANGDALE: Nights/days change, so she's changed from nights to days, is that what was being said? That's what happened, that makes sense, doesn't it? She's been moved from nights to days and deaths have followed?
HODKINSON: Yes. Wholeheartedly agree with the review, take two months, hasn't been raised, member of staff, not sure what review will do. Service concerns, member of staff, fantastic unit but concerned Beverley Allitt/Shipman being raised.
LANGDALE: So Mr McCormack, Beverley Allitt/Shipman being raised. What was he saying there?
HODKINSON: That there were concerns that potentially a member of staff was causing deliberate harm.
LANGDALE: Is killing babies. I mean, Shipman and Allitt murdered, didn't they?
HODKINSON: Yes, they did.
LANGDALE: He has put it right there that this is a fantastic unit but there are serious concerns about Beverley Allitt/Shipman being raised?
HODKINSON: He did say that, I have recorded it in my notes.
LANGDALE: What impact did that have on you when he said that?
HODKINSON: Again, you know, knowing -- knowing the Trust from a personal perspective and also a professional basis as well, yes, it really worried me.
LANGDALE: Well, two babies had just died, one after the other in circumstances where a nurse had been moved from nights -- because deaths were happening, medically unexplained deaths -- to the day?
HODKINSON: Mm-hm.
LANGDALE: That's just happened. Where did your first thoughts go?
HODKINSON: At that point in the meeting, obviously to -- to potentially, you know, there was deliberate harm being caused here. However, as you go through the meeting there were other aspects that were raised that -- that put a different -- put a different view particularly -- I can't remember which page it is on, but, as I say, Dr Brearey saying that the care wasn't
perfect.
LANGDALE: Let's focus on page 58 and what Dr Jayaram said as well in your notes. At the bottom would you like to read out what you have noted around "air embolism"?
HODKINSON: Is it the paragraph right at the bottom on the --
LANGDALE: Yes.
HODKINSON: Thank you. Air embolism, what concern member of staff having babies, nothing to explain. Entirely -- I think that's entirely -- resuscitated, reasons happened 1, 2, not this many times. All collapses identify early, core suspicion seems to be receiving there and what happens. This is the concern. Apologies.
LANGDALE: So he is setting out his concern, very clearly, that the babies have collapsed, the resuscitation measures we know he frequently points out aren't as you would expect in a naturally collapsing baby; is that what he was saying there?
HODKINSON: I -- I from a non-clinical perspective, he's -- he's raising elements of concern there.
LANGDALE: Air embolism. What did you understand from that, what he said about air embolism?
HODKINSON: I don't know what that actually -- I didn't know at the time what that means.
LANGDALE: You didn't ask, you didn't say: what do you mean, air embolism?
HODKINSON: Not within the meeting, no, because it was happening so fast and it was --
LANGDALE: When did you ask about that?
HODKINSON: I can't recall specifically but if there are any things that I was concerned about, I would ask one of my clinical colleagues so -- around it and they would know what that means.
LANGDALE: Who did you ask?
HODKINSON: I -- I think we had a general discussion afterwards, whether it's noted or not but I -- I would have definitely asked about it.
LANGDALE: And did someone tell you that is a method of attack he is referring to air embolism as a deliberate way --
HODKINSON: Not that I recall.
LANGDALE: -- of killing babies?
HODKINSON: Not that I recall, no. No, not that I recall.
LANGDALE: But you knew without clinical training what the reference to Shipman and Allitt meant: murderers?
HODKINSON: Yes. However, I think it's clear from the notes in that meeting that there were different elements that were coming up. In addition, whilst I know that this was very much a Consultant meeting, there were other aspects of information that were presented in separate discussions which was a view from the nursing side as well or nursing staff as well, should I say.
LANGDALE: Let's go through this meeting, 54. We will scroll gently through it and don't feel rushed, Ms Hodkinson, you were having a meeting with the Consultants and do stop us where we hit a suggestion that there was care or concerns that something else was causing death, unexpected deaths of babies. So take your time. It's your writing, so it's probably a bit easier for you than others but we will go slowly?
HODKINSON: Yes. (Pause) Apologies I was still reading through. (Pause) I mean, I think it's very evident in the -- the notes that it was a very open meeting. I do --
LANGDALE: When you say "open" do you mean they were able to express --
HODKINSON: Yes.
LANGDALE: -- they thought there was a murderer?
HODKINSON: Not just that but other aspects as well. You know, I think it's not on that page that I can see.
LADY JUSTICE THIRLWALL: Do you want to go back to the previous page?
HODKINSON: If you wouldn't mind.
LADY JUSTICE THIRLWALL: 59, please.
MS LANGDALE: The previous one, 59, begins at the top with Mr Harvey saying "suspect", what does that say, something aware?
HODKINSON: "Suspect RC aware".
LANGDALE: "Beverley Allitt" Who is RC?
HODKINSON: I can't recall now.
LANGDALE: "Raised area of concern broadly."?
LADY JUSTICE THIRLWALL: It could be the Royal College.
HODKINSON: I don't think, yes, maybe not at that stage because we hadn't -- I'm not sure. I mean, no I think there was an open dialogue in the conversation, I think it's fair to say, and these -- you know, there was no -- I certainly didn't feel at that stage there was no downplaying of the concerns, no dismissing of the concerns.
MS LANGDALE: There is no medical alternative for the deaths provided, is there?
HODKINSON: But there was an element of -- there was an element of concern in terms of the level of care that
was also being provided.
LANGDALE: I have asked you to look at these meeting notes to identify in this very meeting --
HODKINSON: Yes.
LANGDALE: -- who -- was Dr Brearey?
HODKINSON: Yes, apologies, Dr Brearey did say that. I am just trying find where that is because it is definitely in there.
LANGDALE: What, that the concern was that the care was not perfect?
HODKINSON: Yes.
LANGDALE: That doesn't mean that unexplained, unexpected deaths were explained by that, did it, if he said that?
HODKINSON: No, but it does mean that there are other factors that we need to consider.
LANGDALE: How were you going to consider other factors? Somebody says "I think there's a murderer and I can't explain these deaths", how were you possibly going to understand what the medical factors were?
HODKINSON: I am -- I am reliant on other members of -- of the teams to explain those clinical factors to me. Obviously this was, you know, a very experienced, very talented and very well-respected group of individuals who were raising these concerns. But I -- I am dependent on others from a clinical perspective to
consider what steps I suppose need to be thought through around explaining this.
LANGDALE: Did you think Mr McCormack was a sensible man?
HODKINSON: I -- yes. I hadn't had much interaction with Jim, but yes, I did.
LANGDALE: Let's see what he says at the bottom the page we have stopped on, 59. He says: "Expertise forensic investigation. Decision to involve police. Difficult decision to make." He's the person who says the RCPCH review can't deal with the forensic review, they are not able to do that. We see here Mr Cross, is "SPC" Mr Cross?
HODKINSON: Yes.
LANGDALE: What's he saying there? What have you recorded there?
HODKINSON: This, as I recall, was Mr Cross's explanation of what would happen if the police were to come in
LANGDALE: And what was that?
HODKINSON: That there would -- the unit would be closed and it would be classed as a crime scene, there would be blue and white tape everywhere. The unit would be -- the unit would be sealed and I think it's -- you can see the other points that I have captured there as well, I specifically remember him saying that.
LANGDALE: And what does Mr Chambers say in response to that?
HODKINSON: Proportionate response embarking on all agree problem, can't answer difficult question. I don't know what I have put there. Concern about member of staff. Test on hypotheses. Three options. Nul, substance, police called, hypothesis simply and joint view. Heading, creates witch hunt, not suggesting not up for this. Make safe for babies, consequence of member of staff.
LANGDALE: Let's look at these three options. Are his three options nul, ie nothing in the issue, or substance in the concerns and the police called or hypothesis and joint view creates a witch hunt. What -- is he creating different options there?
HODKINSON: Apologies, could you ask the question again?
LANGDALE: What's he saying -- what does "nul substance or hypothesis" mean? What are his three options?
HODKINSON: Nul, do nothing, it's always an option in any situation, never mind the situation.
LANGDALE: Because you don't believe it and you're not worried about it?
HODKINSON: No --
LANGDALE: How could you do nothing when someone is saying "I think there's a murderer", unless you didn't believe it was true.
HODKINSON: I know but in -- in any situation in life there's always a do nothing option. So I think Tony meant it like that. You would have to ask Tony specifically but I think Tony meant it like that, not to dismiss it. The substance being that the police are called or that there's, you know, a hypothesis, a range of -- of other, other considerations.
LANGDALE: Right. What are the range of other considerations, where is he going there now he's speaking about a witch hunt?
HODKINSON: Again, I can't remember specifically what he what he's referring to there or what was said. I have captured the notes as you know as he described it to the best of my ability. I can only imagine it's -- you know are there other elements which are causing these deaths to happen. The -- it's important the Inquiry, and I am sure you know this as well from all of the different reference points and I am not clinical, but I know that in a neonatal babies are the most vulnerable patients that a hospital can have and also the most complex type of care and there are -- it's really difficult as well to provide that care and I think many hospitals struggle as well.
LANGDALE: And you had senior and respected Consultants there, didn't you?
HODKINSON: Yes.
LANGDALE: Dr Jayaram and Dr Brearey?
HODKINSON: Yes.
LANGDALE: Just to be clear, at no time did you doubt their expertise or motives for raising concerns, did you?
HODKINSON: No.
LANGDALE: You say that very clearly in your statement. Perhaps you would like to express it in your own words what do you think motivated them to raise these concerns?
HODKINSON: That they couldn't answer what was happening.
LANGDALE: They genuinely were concerned that she was causing deliberate harm?
HODKINSON: That she was present on a number of the shifts and they -- they couldn't answer what was happening.
LANGDALE: That is not my question. You know that is not my question. Did you accept that their concern, she was genuinely murdering babies?
HODKINSON: They had genuine concerns that Letby had -- may not have provided the care -- you know, that's -- I think there is so much more that we know now but at
that time, there was genuine concerns around the care.
LANGDALE: Please answer this yes or no. Do you accept that Dr Brearey and Dr Jayaram were genuinely concerned that Letby was murdering, deliberate harming babies? Yes or no?
HODKINSON: They were genuinely concerned.
LANGDALE: So it's a yes, you accept that was their level of concern?
HODKINSON: They were genuinely concerned. They -- I can see that the way that this is written, you know, and the conversation but there were many other factors playing into this as well.
LANGDALE: This meeting, you tell us you didn't know very much about what was going on on the unit?
HODKINSON: Mm-hm.
LANGDALE: And that the meeting notes referring to Dr Fogarty were quite obtuse on the point of neonatal deaths. Accepting that point for a moment, you come into this and you are being told by these Consultants what they are worried about and what they think is happening or may be happening.
HODKINSON: Mmm.
LANGDALE: What's difficult from your perspective in terms of what you do next when you hear serious minded, experienced paediatricians saying that? Why was this difficult?
HODKINSON: Why was which point difficult?
LANGDALE: Why was it difficult for you to see what they were saying and to know what to do next as an HR person?
HODKINSON: Well, it was difficult as a mum hearing some of that as well, without doubt.
LANGDALE: What, because you worried very much for the babies who had died because you have got one and you worry about those that might die continually?
HODKINSON: You know, and for anyone who goes through a situation like that. So I suppose there's that personal aspect and I can't apologise for that, that's me.
LANGDALE: So are you saying that took you to baby safety because you felt like that; that took you to protecting babies quickly?
HODKINSON: Apologies, can I just go back because I will lose my train of thought, if that's okay. I think, you know, it goes without saying that really concerned me and I think the first thing I thought was: where is -- we need to look at which this member of staff is on the unit and is she continuing providing patient care?
LANGDALE: As the meeting was happening, she was on the unit and you had flagged that up, hadn't you?
HODKINSON: I -- I see that now. I think everything was happening so quickly on that day. If -- but she was I had had assurance from the nursing team that they were satisfied at that point that that was, that was the case and then she was going -- she was going to be going on leave and she never returned back to the unit after that stage.
LANGDALE: You are head of HR and the nurses we know were very friendly, lacking in objectivity when they were dealing with Letby. You come to this meeting, you don't know anything about the situation, you tell us, and you just tell us your first thoughts are as a mum and thinking about the babies. Did you not want to go out of the room and say: where is she, should we make sure she is not in this hospital at this moment, on the unit?
HODKINSON: I can see that now.
LANGDALE: Didn't you see it then, from what you have told us? It is not about what you say retrospectively.
HODKINSON: I can see it now. However, I think there was you are trying to have a balance, a view of all of the different information and taking all of that information into account and I -- you know, I didn't know then that there was, there was, you know, the support around the nurses and -- and the view of Letby as it was.
But I had to go on the assurance that I was being given from the nursing team as well.
LANGDALE: Let's go to page 60. Halfway down on the left-hand side: "Mr Chambers feels personal. Need to be safe, kind and effective." What was that about? See above, you have put. "Dr Brearey made feeling clear. Mr Chambers feels personal. Need to be safe, kind and effective"?
HODKINSON: I mean the phrase "safe, kind and effective" was in the relation to the Trust values. I don't know what the point "feels personal" relates to.
LANGDALE: Well, there is reference to a witch hunt, isn't there, and now "feels personal". What do you think that was about, who was being thought about in those comments?
HODKINSON: I -- I don't know whether that's related to Letby or -- I don't know.
LANGDALE: Seems like it, doesn't it?
HODKINSON: I -- I can see how that's read and how that comes across but I don't -- I don't know in terms of, you know, how he actually meant that.
LANGDALE: We know when Mrs Appleton-Cairns met with Ms Weatherley before she was conducting the grievance they both spoke of a witch hunt and Mrs Appleton-Cairns
said: yes, we think it's a witch hunt, it's sad, or something similar. So a witch hunt was something as you know which was used by your deputy certainly moving through events, wasn't it?
HODKINSON: (Nods)
LANGDALE: So it's very likely that's what this referred to here, isn't it?
HODKINSON: It -- it could be but, I can't, I can't be certain.
LANGDALE: Do you not remember now that the view of your deputy was that there was a witch hunt in respect of Letby?
HODKINSON: So again there's two different things, what we are talking about in this meeting and -- and Dee Appleton-Cairns as well.
LANGDALE: It is the same thing, isn't it, it is witch hunt so we are talking about that?
HODKINSON: I can see how you -- you are saying it is the same thing.
LANGDALE: Yes.
HODKINSON: I think in terms of this meeting I don't know how -- what Tony was specifically referring to, I can definitely see that he's referring to our Trust values. In terms of Dee saying that, I can see that from -- from the statement and obviously her transcript as well.
LANGDALE: Did you share her view?
HODKINSON: At times, possibly. But at other times, no.
LANGDALE: Can we go to page 62. This is a follow-up meeting at 4.35 on the 30th and you are all being allocated -- the Execs meet again, you allocate various tasks. It looks as though security is something that you are looking at. If we look on the left-hand side, bottom: "Internal only security"?
HODKINSON: Mm-hm.
LANGDALE: We know if we can have, please, on the screen INQ0004888, page 1, you in fact liaise with Tim Lister?
HODKINSON: Yes.
LANGDALE: You conduct a security review sending it to colleagues on this list --
HODKINSON: Yes.
LANGDALE: -- with a view to enhancing the security of the unit, making recommendations. If we go to page 8 of a different document, actually INQ0014135, page 8.
HODKINSON: Excuse me.
LANGDALE: We see at bullet point 9: "CCTV to cover patient intensive care rooms."
HODKINSON: Yes, I see that, thank you.
LANGDALE: Mr Lister has sent you that quote earlier. So you are at the point -- we can take that down,
thank you -- where the intention was to have CCTV and access control systems installed on the NNU to improve security?
HODKINSON: Mmm mm.
LANGDALE: Did that happen?
HODKINSON: I think first thing to note is that this didn't come under my portfolio at all.
LANGDALE: No.
HODKINSON: So I am not -- that's not an excuse. I think it was just that I was taking an action to -- to look at it at that time. I recall that it didn't happen. I think there was something in relation to funding, unfortunately. But it was then -- I can't remember whether it was Mark Brandreth whether it came under because I think he was the Chief Operating Officer at the time, but I know that the CCTV wasn't installed.
LANGDALE: Did you feel that was an investigative task? Putting CCTV up to see what was going on, given the meeting you had just had, what did you make of the request that you should even look for this?
HODKINSON: I don't -- it -- I think at that time you -- we were just working through and trying to put in as many measures as possible really as well and --
LANGDALE: Many measures for what?
HODKINSON: Just to assure the teams. Obviously you know,
we were taking the concerns really seriously, but also we wanted to make sure that we were looking at everything from all sides, all angles.
LANGDALE: What was the reason for cameras in the intensive care unit at the NNU?
HODKINSON: I think to provide that extra level of assurance.
LANGDALE: Against what?
HODKINSON: I suppose whether it be from a competence perspective, whether it be from a general care perspective or whether it be from a deliberate harm for anyone perspective. So I think it was that extra level of assurance.
LANGDALE: Did you intend to tell people they were being filmed?
HODKINSON: Absolutely we would have done, yes.
LANGDALE: You say "we would have done" --
HODKINSON: Apologies -- it is a duty for us to do that as well.
LANGDALE: Your communication generally as HR wasn't the most transparent throughout these events, was it, with Lucy Letby herself first of all?
HODKINSON: I think that's -- that's seen from the grievance outcome as well.
LANGDALE: So when you say we would have done, did you do
that you are talking to Mr Lister, just go and have an open consultation with people and say we need to film what's going on in here, in the NNU; did you say anything to him?
HODKINSON: Again this was not under my portfolio, so I was looking at something which was, you know, it was an action that we had agreed at the time but not to -- this is not an excuse. It's -- it's -- this was an area where I think it was Mark Brandreth who was the Chief Operating Officer would then take forward with and I recall that the quote came in, that definitely went to Debbie O'Neill as the Chief Finance Officer. But I don't know what necessarily happened with it then but I know that the CCTV was not put in.
LANGDALE: A different topic. You are asked by Ms Kelly I think to listen to a conversation she has with a Tony Newman, if we can go to your note INQ0015639, page 72. This is Ms Kelly's professional body, so it is the NMC. While we are finding that, what did Ms Kelly ask you to be on the call for, do you know?
HODKINSON: I think just to hear the advice from an NMC perspective as well. I was taking a back -- almost like a back seat on the call, you know, I didn't really contribute as such. That's Alison's professional body. But it was also, you know, if there were any, any subsequent actions that I may need to put in place from that discussion as well.
LANGDALE: What did you understand she was seeking advice about?
HODKINSON: I think whether there needed to be a potential referral. Obviously explaining the situation in relation to Letby and I think seeking external advice from the nurse professional body as well.
LANGDALE: What do your bullet points at the end say?
HODKINSON: The three bullet points at the end?
LANGDALE: Yes, what's the conclusion of the meeting?
HODKINSON: Okay, thank you. Make notes and advise to refer; full investigation interim order; police don't proceed criminal charges, still work on organisational basis. So I think those are, you know, the potential three options.
LANGDALE: What did you understand by the last one: police don't proceed with criminal charges, still work on organisation?
HODKINSON: So if, if ... if there was no potential criminal charges she could continue working on an organisational basis. It's difficult to recall exactly the discussion from eight years ago.
LANGDALE: Would you like to go to your statement it might help. It is paragraphs 73, 74, 75. You say as you just said now at paragraph 75 --
HODKINSON: Thank you.
LANGDALE: "... cannot specifically recall this aspect of the discussion but think it could be interpreted as Tony Newman advising that in the event Letby were to be investigated by the Police and that investigation did not lead to any criminal charges then she could continue to work at the Trust"?
HODKINSON: Mm-hm yes.
LANGDALE: And you say at paragraph 73: "... we discussed the potential referral of Letby to the NMC and what would likely happen in the event of a referral, including the likely imposition of an interim order during any investigation [and] we discussed the various options on NMC referral and Tony Newman requested [her] PIN number which I have noted down as an action to follow up ..."
HODKINSON: Mm-hm.
LANGDALE: What was the information Mr Newman was given during this call about the suspicions or concerns?
HODKINSON: What was what, sorry?
LANGDALE: What information was Mr Newman given about suspicions and concerns? Did you, for example, say: the
Consultants think this is an Allitt/Shipman situation, as had been expressed on 30 June?
HODKINSON: I don't recall that specific phrase being used but I did -- I do believe that we did say that Consultants had significant concerns.
LANGDALE: He emails Ms Kelly cc'ing you, if that comes down please. INQ0003607, page 2, and while we are finding it, Ms Hodkinson, it has amends on it, yellow boxes and amends and it looks from the email chain that Ms Kelly has made some corrections or amendments to confirm the note?
HODKINSON: (Nods)
LANGDALE: We see this is the agreed note which he's happy to accept of a summary of the conversation. Can you just have a read of that, please. The first point: Trust has seen a rise in mortality of babies. Was it expressed to Mr Newman that these were babies that were stable and were not expected to collapse and did not respond on resuscitation as you would expect them to?
HODKINSON: I -- I can't say for definite whether that was explained. Again you would have to raise that with Ms Kelly.
LANGDALE: Each death has been the subject of a clinical team case review.
What did you understand that was?
HODKINSON: I -- knowing, knowing obviously more from the 27 June onwards the Thematic Review, the elements around the Thematic Review.
LANGDALE: Was he sent the Thematic Review with the table with Letby's name highlighted?
HODKINSON: I don't know.
LANGDALE: You say: "The review has produced no evidence as to lack of confidence by individuals or the team." Did in the conversation you point out to Mr Newman that was the point; there wasn't a lack of competency this was deliberate harm being caused?
HODKINSON: I -- I would love to say I can definitely say. I can't say whether that was raised or not.
LANGDALE: And you say: "The Registrant has received occupational support. Some clinicians are concerned that the Registrant may present a serious risk to public safety, although no evidence is available at this time." No evidence is available at this time. Was that a fair summary of what he had been told?
HODKINSON: I think when you look at it now, with everything that we know, no. However, I think with -- with all of the different information points coming in at that time, it was a fair summary.
LANGDALE: There was an omission, wasn't there, of important information you had heard at the meeting on 30 June and it would have been much easier just to say what you heard on 30 June rather than try and filter it in any way from your perspective, wouldn't it? Just to go and say: this is what they think, they didn't expect these deaths, they are unexpected, they can't medically explain them. They think there is an Allitt/Shipman situation?
HODKINSON: I don't think there was a filtering, I really don't, I don't think Alison was trying to filter or myself, at all. I think, you know, this -- this kind of situation is something that you never ever, ever plan to experience, hope to experience and there's not really, you know, a huge amount -- whilst there is policies and things, there's not a great deal of guidance there. And I can categorically say there was no, there was no filtering. There was no misleading or anything like that in this conversation.
LANGDALE: If you go to, please, the next document, INQ0002964, page 1, this is a follow-up letter from Ms Kelly which you are cc'd into on 31 August: "As previously mentioned we undertook a thorough
internal review." You understand that to be the Thematic Review; yes?
HODKINSON: (Nods)
LANGDALE: "Nothing of significance was identified within this. Following discussions with our board and on receiving views from our clinicians, the step was taken to place Letby on non-clinical duties. She agreed to this. There has been no indication to discuss this matter with the police at this time." Were you comfortable, again, with the expression: there's been no indication to discuss this matter with the police?
HODKINSON: So I think -- I think -- if I may just before I answer that question, I think the "thorough internal review" also refers to the aspects around the Silver Control, Silver Command aspect. Also Ian Harvey did a further review as well around the cases.
LANGDALE: Sian Williams, when she did her bit of work around that, said she concluded as soon as she had done her bit they should go to the police and that she shared that view. Did she share it with you?
HODKINSON: I don't recall her saying that to me, no, I don't. Apologies, what was the other question as well?
LANGDALE: "No indication to discuss this matter with the
police", it is the second paragraph of that letter?
HODKINSON: Yes.
LANGDALE: Did you think that was correct?
HODKINSON: At that time, there were -- there were collective discussions, not only with myself and the rest of the Executive Team, also other, the Chair, the Non-Executive Directors as well and that, that was the position at that time.
LANGDALE: Why didn't you say the Consultants think there's an Allitt/Shipman situation, what was the problem with just repeating that? You say there was no intention to filter. But it's a serious omission, isn't it, and it seems the most obvious thing to say if you are imparting their concerns?
HODKINSON: That would be -- I was taking more of a back -- back seat role in this conversation because it isn't my professional body, so it would be a question to ask Ms Kelly that one.
LANGDALE: But it would be for you, wouldn't it, when she got off the phone to say something to her, as head of HR and a fellow Exec: look, Alison, I think you have understated that, this is what they said in the meeting, it's really serious?
HODKINSON: I think it goes without saying that Alison and I -- and it's very clear from my notes, from my
statement, there was multiple times we would sense-check around how we were both interpreting the situation and whether we needed to do things differently as well.
LANGDALE: She didn't believe the concerns could be true, did she, Ms Kelly, she didn't believe them?
HODKINSON: She -- she was trying to take everything into account.
LANGDALE: Is the answer yes or no? Did she believe that Letby could have done these things and the concerns were true?
HODKINSON: I think -- I think she as the professional lead for all of the nurses and midwives across the organisation -- I think it would be a really difficult thing to take in.
LANGDALE: Eirian Powell and Karen Rees have both been very clear at the time that they couldn't believe that, unthinkable to them, both accept they lacked objectivity and particularly for Karen Rees and we will come to the weekly meetings she was required to have, she got far too close to Letby?
HODKINSON: Mmm.
LANGDALE: So that's their position. What's yours -- Ms Kelly's dealt with hers yesterday but what's yours? You weren't a fellow nurse, you weren't close to her. What was your reason for not accepting the concerns the paediatricians had on their face and saying: these need to be investigated, and for talking about witch hunts?
HODKINSON: No, it -- it is a very good question and consideration as well. I think I was reliant on taking into account all of the other information that was being shared with me from -- you know, from Mr Harvey, from other aspects in relation to the Silver Control -- Silver Command piece. I call it control, it's command. But then I think because so much had been looked into at that stage, and whilst it's not decrying the Consultants concerns, there still wasn't a clear answer and we had to, you know, I suppose I was trying to take an objective view. I think the thing that I was really, that I was assured around at that stage was that the nurse was not on the unit.
LANGDALE: This Silver Command stuff, it's like you were doing a police investigation in the hospital without the ability, talents and resources to do that, wasn't it?
HODKINSON: I just --
LANGDALE: Sending people off when they should be looking after patients in the day job to look at things, scrutinise, you looking at CCTV, Sian Williams looking at rotas that Eirian Powell has already looked at but
doesn't particularly like the answer?
HODKINSON: I described it in my statement as a hybrid exercise. I think those -- that's the phrase I have used. When there's a -- you know, an incident within the hospital, you would -- you know, whether it's around capacity, patient capacity, flow of beds or other things, potentially you would instigate, that -- that kind of Silver Control/Command kind of exercise, I have done it myself, to manage that and then people do undertake various different roles, there is guidance around that. Many organisations will be the same. This was a hybrid exercise.
LANGDALE: Communications internally. There is two documents I would like us to have a look at, please, INQ0002677, page 1. Have a read of that one first. These are messages to staff. It's paragraph 3: "We have seen in some of our most poorly babies an increase in neonatal mortality rates." If we can then look, please INQ0002822, page 1, identified change in what our internal mortality data information is telling us. You are a small hospital, you have said you felt very much a part of that hospital and you are head of HR.
This communication internally wasn't transparent and open at all about the position, was it, the big picture? What you were actually dealing with?
HODKINSON: I think there is a balance around also maintaining confidentiality. You just, I know you described us as a small hospital, I think we like to call a medium district general hospital, with those --
LANGDALE: Fair enough.
HODKINSON: Yes, with those members of staff. So yes, we would like to be transparent. But you also have to consider confidentiality not only of first and foremost patients but also staff as well.
LANGDALE: We know, the Inquiry is aware, and so were the Execs, one of the Consultants was saying: I wouldn't want my own baby here?
HODKINSON: I know.
LANGDALE: A Consultant on the unit. So this internal communication is providing false reassurance, isn't it, in a number of ways and you know as Execs a Consultant thinks that?
HODKINSON: I can see how you see that. We -- we tried to do the best, we -- this communication, we tried to do the best that we felt we could at that time.
LANGDALE: There's another letter to a solicitor -- if we can take those down, please -- INQ0004597. And a bit
after then, 18 July, and you have had a conversation with Corinne Slingo about going to the police or not. When you do get external legal advice, are you asked to do that by Mr Chambers or Mr Harvey or another Exec or can you independently decide to go and get that advice?
HODKINSON: I can independently decide.
LANGDALE: Okay.
HODKINSON: Apologies. I managed the budget for that particularly. There was different advice that Mr Cross had from a legal perspective which was more around, say, patient cases, which was in I think we had commissioned a contract as such with Hill Dickinson around that but from a people perspective our legal advice was DAC Beachcroft and if there was any conflict of interest I could always seek additional advice from there as well.
LANGDALE: So Ms Slingo, if we go to the next page, has given her advice and she bases it on what she sets out in the bullet points at paragraph 1: "The only current evidence of any clinical concern is the potentially circumstantial fact that one particular nurse was on shift on more occasions than others at the point when neonatal deaths arose" Nothing about them being unexpected and unexplained and not the ones the doctors wanted, was there?
HODKINSON: I think I went into quite a lot of detail with Corinne.
LANGDALE: Did you send her the Thematic Review? She said she had asked for documents, she didn't get documents. Any reason for not sending her the charts with the association with Letby?
HODKINSON: Yes. No, I know -- I know that that wasn't sent. I think if I recall that I spoke to Mr Cross about whether to send that or not. You know, this kind of advice that I was receiving was not employment advice as such. This was regulatory advice. So if I recall Ian Pace, he advised me that there was regulatory support within DACB Beachcroft and recommended me to have a conversation with Corinne which was obviously this first conversation. That -- you know, that would normally I guess be under the kind of remit from Mr Cross's perspective, but because the offer was there from Beachcroft I took that offer and --
LANGDALE: If we look at the penultimate bullet point: "Currently no cause of death or thematic clinical basis to suggest the deaths are connected to each other or connected by common intervention". That was the point of Dr Brearey's review, wasn't
it, the common theme was the pattern of deaths and the presence of a nurse?
HODKINSON: (Nods)
LANGDALE: So the bullet point at 5 is not accurate, is it; far from it?
HODKINSON: I can imagine the phrase "thematic" if -- I must have raised with her the Thematic Review.
LANGDALE: Did you phrase the fact there was a pattern identified of deaths in the night and a common link of a nurse?
HODKINSON: I certainly said about the common link of the nurse. I don't -- I cannot be certain whether I said about the pattern of deaths at the night because I suppose was I looking for that specific detail when I was going through things? I was trying to -- I was receiving I suppose that, that information from clinical colleagues. I knew there was problem, I had heard that directly from the Consultants as I said earlier, I have described that to Ms Slingo as well, I described the position in terms of the Coronial system and it was a really mixed picture.
LANGDALE: "Approximately 75% of the deaths have also been through the Coronial system." Where did you get that figure from?
HODKINSON: I must have got that from one of the Executive Team, I can't say whether that was through Stephen or Ian specifically but I must have received that information.
LANGDALE: What was the point you were making there and there were no concerns or there wasn't any issue?
HODKINSON: No. It was that obviously when there is any patient death of concerning circumstances there needs -- it needs to go to the Coroner and the Coroner would -- is obviously external to the Trust as well and so that's -- it's important to get that additional set of insight, external insight, around what was happening and I think at that stage there was obviously information from the Coroner, there was information from the Thematic Review, there was information previously which I referred to earlier from the QSPEC conversation which included external, you know, panel member as part of that. Then there was also the information from the Consultants. So there was multiple at this stage aspects being presented at that time.
LANGDALE: When Ms Slingo gave evidence to the Inquiry Chair, she said: "If I wasn't told everything that was known then that would be disappointing to find out and it appears
to be the case." Let me ask you this question arising from that. You were asking Ms Slingo about whether you should be going to the police. Why didn't you say to her: the Consultants have said this is a Beverley Allitt/Shipman situation. What you had heard with your own ears Mr McCormack saying in that meeting of 30 June as soon as you said that to her you would have got an answer wouldn't you: go to the police? It's a really important point.
HODKINSON: Mm-hm. I think there's two aspects to this. I think I described -- and it's clear from the notes that Corinne has, has helpfully provided back, I described a range -- you know, the situation. Did I use that phrase? I don't recall. Potentially maybe I should have done but I -- it wasn't around a misleading point or any aspect there. In addition, you know Ms Slingo is the head of healthcare regulatory, she is the most senior person within DACB to advise on those matters. I had gone to I had been recommended to speak with her, and I would suggest potentially she should have asked me more questions. But I felt that I was giving a clear and honest and truthful overview at that time.
LANGDALE: Do you remember her asking for documents. You said before you asked Mr Cross if you could send it to her. Might she have said: can you send me documents and did you check with him if you could?
HODKINSON: I -- I believe I did check with him if I could and I was trying to, I was trying to pass this over to Stephen and obviously later that happened in I think 2017. I can't remember the exact date. But unfortunately those documents weren't sent to her.
LANGDALE: Can we have please another document INQ0007197, page 138. And this is a note, Mr Cross's note of an Exec meeting on 3 August 2016. And there's an action relating to Inquest: "[Child A] Inquest action. Statements need to be reviewed by IH and AK. Coroner pushing for statement." Can you remember now -- it looks as though the statements are to be reviewed by Mr Harvey and Ms Kelly. Can you remember a discussion about [Child A]'s Inquest and the need for review of their statements?
HODKINSON: Apologies, I can't remember that specific conversation.
LANGDALE: I think early on in the NNU action plans you were put next to Coroner but also Mr Cross. Did he take over that?
HODKINSON: He took over that action yes.
LANGDALE: So did you ever deal with the Coroner?
HODKINSON: No.
LANGDALE: If we go over the page since we are on that meeting note, there is a reference to something that we know halfway down Eirian Powell states in an email: "Nurse started 2012, why now? Occupational Health referral." At the bottom: "What about nurse, more support." So there's discussion there, isn't there, about more support for her?
HODKINSON: Yes.
LANGDALE: We will come to that later.
HODKINSON: Apologies, I think that may also be more support in general as well but it certainly would be around her.
LANGDALE: And the final document before we break if we can, INQ0004348, page 1. This is another Executive Directors Group, it is a typed note, Ms Hodkinson, on Wednesday 19 October in Tony's office. It appears, if we look at the bottom of the neonatal review, that a document, the RCPCH document: "... has now been received by the Trust, a copy of which Ian Harvey has shared with Alison Kelly. Ian Harvey highlighted aspects of the review. It was agreed that a copy would only be shared with Executive
colleagues at this stage. It is noted that Nurse Letby was aware that the report had been received by the Trust ... noticed that the chairman and the board needed to be updating. Agreed once Executive colleagues have had a chance to read the report. A decision would be made on further distribution. Action: [Mr Harvey]."
HODKINSON: Mm-hm.
LANGDALE: When you heard that said, did you think it was reasonable that the Consultants shouldn't see the report at the same time as the Executives given that they had been pushing for it to be done in two weeks in that first meeting you were at and they were still waiting?
HODKINSON: I think -- I think as a -- particularly in members of the -- Executive members who were clinical needed to consider that first. The -- I think it was reasonable at that stage but I think the information was provided not long after that as well.
LANGDALE: Why wouldn't they consider it at the same time? Would they have had a different approach to the same information? Why wouldn't you see it with another medical colleague?
HODKINSON: It was requested by the board and I think it was -- you know, it was relevant, similar to other reports that the Executive Team review it first.
MS LANGDALE: Thank you. This is a good time to take a break, my Lady.
LADY JUSTICE THIRLWALL: Thank you very much. So we will take a break now and we will start again at 10 to 12.
HODKINSON: Okay, thank you.
(11.33 am)
(A short break)
(11.49 am)
MS LANGDALE: Ms Hodkinson, we move now to 15 March, INQ0003219, page 3. This is the conversation you have with Dr Jayaram. You tell us in your statement at paragraph 285: "[The] conversation with Ravi marked a real turning point in my mind and hearing those concerns made it clear to me that more needed to be done." If we go to page 4, overleaf, you have documented here, and unlike your handwritten notes you have typed up this meeting, haven't you?
HODKINSON: (Nods)
LANGDALE: So why did you do that?
HODKINSON: So that I had a clear record, it was literally the conversation that I had with Ravi I was trying to capture as much as possible in my mind, it was a free-flowing conversation and --
LANGDALE: Had he come to see you about the mediation point or something else?
HODKINSON: Sorry, what was that?
LANGDALE: What had he come to see you about, did you think?
HODKINSON: He reached out to me in relation to the mediation, the process, what would happen around that as well and then we -- it was in his office, the meeting, I recall it being around about an hour and a half or so, maybe slightly longer, and it was a, you know, very open, open discussion. I had interacted with Ravi before all of this. He was an excellent host of the Trust awards so that's how sometimes I had interacted with him. He was also an education lead from a clinical perspective so those were the elements that I had interacted with him around. But it was -- specifically the conversation was around the mediation to start with.
LANGDALE: Did you trust him?
HODKINSON: Sorry?
LANGDALE: Did you trust him as a colleague and as a medical doctor?
HODKINSON: I had no reason not to.
LANGDALE: So that is a yes?
HODKINSON: Yes.
LANGDALE: He told you what?
HODKINSON: He was obviously going through around, you know, his concerns in relation to the mediation and we talked that through extensively but I think the key point is the top paragraph.
LANGDALE: Mmm.
HODKINSON: Where he recalled to me three occasions where he had concerns, one, as it says, a baby deteriorated; another where a valve was at a different setting; and a third and I don't think -- I don't know whether as the conversation went he told me what the third incident was but I don't remember and I don't think I -- I think I was probably -- in fact I know I was stunned at hearing that.
LANGDALE: You tell the police, if it helps, nearer to events as well, INQ0012175, page 43, it begins slightly the page before. You were trying to reassure in terms of mediation process but, over the page: "It was at that point that I suppose made me feel really, really uncomfortable. I didn't think we had really looked into some of the aspects enough clinically and I have to take his concerns seriously. "One of the things I was, as well as being Director of People, I was one of what's classed as a Freedom to Speak Up Guardian."
Further down into the next answer, you say: "... and the kind of things -- it would be in the notes, but the kind of things, the way he was saying, you know, there was an incident with the baby. Perhaps the baby didn't die, but there was mottling on the skin, there was something on the skin that couldn't be explained. That he felt that was, because he knew that Lucy again was there, but he couldn't be definitely certain it was Lucy but there was something not right. It was a really worrying meeting but he was very, very open with me, really open, and it was a good meeting and I agreed at the end of it and I said: right, Ravi, I am going to have to take these concerns seriously. And I think on that day I spoke to Tony straight away and said: I think we need to do something, we need to -- we need to have a conversation with Ravi." If we go to page 44. Continuing in that vein: "I think Tony -- Tony came as Chief Exec to Ravi and Steve's relationship, there was more to it at that point. And Tony really wasn't having many discussions -- I mean, he wouldn't, you know. He wouldn't. "So I remember speaking to Tony. I said: look, you know, I feel really, really uncomfortable about this. We need to hear Ravi's concerns. I have asked Tony to go and meet with him. He said that we were free. So
Tony and I went to go and see Ravi and Steve and, you know, they just explained some of the issues and concerns further and we talked about: well, what do you think we should do and it felt quite positive." Do you remember now having those discussions with Tony and Ravi as you described them there?
HODKINSON: Yes, I do remember having them.
LANGDALE: Did Ravi Jayaram, we see him continually saying through the documents, repeat what he had said to you and generally about sudden and unexpected, not the babies expected to die, raise his concerns in a frank way with them?
HODKINSON: Mm-hm.
LANGDALE: You were seriously concerned after that conversation with him?
HODKINSON: (Nods)
LANGDALE: You describe to the police he had made you reflect perhaps that you hadn't been looking into some of the aspects enough clinically before then. Do you remember saying that? Is that what you thought, actually we haven't taken these seriously enough, this is really serious?
HODKINSON: Yes, yes. I think the other -- the other thought was why is Ravi telling me this now? So I think why I didn't call the police straight away was because I needed to triangulate, I needed to check, had anyone else heard of this? Had anyone else heard those specific phrases that Ravi was telling me then? You know, because for me to hear that as a non-clinical person I remember going home at night and I was -- I was in tears about it.
LANGDALE: So pausing there. What's the relevance of the fact that he told you and when he told you to how serious the concerns were?
HODKINSON: Sorry, what's the --
LANGDALE: Well, you say you were wondering why had he told you that now, what's the importance of that compared with the importance of what he was saying?
HODKINSON: I suppose I couldn't understand why that information was only coming to light then.
LANGDALE: What were the options for that? When you say you couldn't understand it, what did you think it might be, the reason for him taking that time?
HODKINSON: I don't -- I don't know. I think because it was an open and hopefully a trusting conversation.
LANGDALE: So you had made it easier for him to say it?
HODKINSON: I hope so, I hope so.
LANGDALE: So that didn't discredit anything he was saying, was it; if anything, it reflected on the fact that no one had been as receptive as you had before
then, is that fair?
HODKINSON: You could see it that way, but --
LANGDALE: Isn't that the only way to see it. Help me with it another way, it is a genuine question: how on earth can you look at that differently?
HODKINSON: No, I see what you are saying, Ms Langdale, as well and --
LANGDALE: He is talking --
HODKINSON: I suppose I am pleased -- apologies, I am pleased that he had that conversation with me because I think it changed our direction.
LANGDALE: It appears to have been used against him that he only raised these concerns at this point.
HODKINSON: I don't, I think I have reflected a lot around this particular aspect because I think to have that conversation as a member of the Executive Team and to be told in those terms I think one, I was very privileged that he told me in those terms in that way. You know, I don't know why he told me but I am glad that I enabled him to tell me in those terms.
LANGDALE: And you believed him --
HODKINSON: Yes, and I did believe him.
LANGDALE: -- without a doubt?
HODKINSON: Sorry?
LANGDALE: You had no doubt?
HODKINSON: I did believe him but I think my reflection point is, and I know we may come to this as well, but I think it's important I say this at this time: "I should have said to Ravi and because we spoke a number of times the days afterwards, apologies, I should have said at that stage: "Ravi, I don't want you to go through with the mediation". You know, from knowing that and now knowing the distress that mediation meeting caused him as well, I can only say I am very sorry, Ravi, because I shouldn't have continued with that. I cannot tell you why I did. I think it was just, you know, the flow, but I -- I should have paused.
LANGDALE: You did though go to Mr Chambers and you did at the next meeting, let's go to a meeting on 16 March, which is INQ0003344, page 1, and this is a meeting with the Execs, it is the day after his comments to you and let's see what you do tell your fellow Execs then. Halfway down, you speak about still unexplained deaths. On behalf of all bullied and intimidated, being victimised like other whistleblowers?
HODKINSON: Mm-hm.
LANGDALE: That's of course -- I didn't take you to the full note of 15 March, but that is what Dr Jayaram is saying to you, that he feels victimised?
HODKINSON: Yes.
LANGDALE: You are very clearly sharing that at the meeting, aren't you, with Ms Kelly and Mr Chambers?
HODKINSON: (Nods)
LANGDALE: Want conversation with Tony/Ian. They do not feel assured. What did they not feel assured about?
HODKINSON: I think the way that Tony and Ian were managing, managing the process, maybe the -- you know, their kind of relationship as well. Yes.
LANGDALE: And you say, or somebody says: "Needed more support as clinicians." I am assuming that's you because you seem to relay or hear what happened in the meeting. Would it be you saying: they need more support
HODKINSON: Yes.
LANGDALE: Over the page: "TC had conversation with the CEO of Great Ormond Street, help me understand mindset of neonates, Peter will meet them, favour, he could then advise on process to get through this." You refer later they want a neonatologist. Can you remember what that's about, what's Mr Chambers saying about "help me understand mindset of neonates", do you know?
HODKINSON: Yes, I think -- I think it was around almost like a bringing together of the Executive Team and the Consultants as well to try and I suppose rectify the relationship that had broken down at that stage as well.
LANGDALE: And get a mindset, a collective mindset. There was a very different mindset, wasn't there, with the Consultants having, you trusted them, genuine concerns that a nurse was murdering babies --
HODKINSON: Mm-hm.
LANGDALE: -- and them looking for other ways to investigate events internally within the hospital?
HODKINSON: I -- I think, you know, there was multiple different factors that probably led us to that situation as well. I don't think -- you know, I am sure we will talk about the grievance again but I don't think that helped. I think, you know, you have got to remember that the Consultants had raised these concerns, we then had multiple reviews which were also, you could argue, criticising the care that was happening on the unit as well. Then they had the elements -- particularly Ravi and Steve had the elements related to the grievance, that is further criticisms. Then, you know, the elements around, well, we are then getting Dr Hawdon in.
LANGDALE: We will deal with those separately.
HODKINSON: No, I know, I am just trying to describe I suppose all of those aspects plus --
LANGDALE: You thought that you were doing things and it's in retrospect they weren't right --
HODKINSON: No, no, what I am describing is that the -- I suppose that appreciation, the breakdown of the relationship was due to a number of factors. I think all of those different points that I have just described, plus then, you know, how they perceived Tony or Ian in some of the meetings as well, and I think all of that came together to break down --
LANGDALE: How did you perceive Tony Chambers in some of the meetings? Did you witness him to be intimidating and bullying in his tone and manner?
HODKINSON: Not -- knowing Tony, no.
LANGDALE: What does that mean; that sounds like a caveat?
HODKINSON: I can see what you are saying, but knowing Tony, he's --
LANGDALE: For those of us who didn't, what would we make of him if we went into a meeting.
HODKINSON: If may just describe Tony as I knew him, you know, he was a fantastic Chief Exec. He couldn't have cared any more about making a difference within the Countess. He was passionate, he was supportive as
a leader, as a manager to me and I think to the other Executive Team. But he got emotional and I think sometimes those emotions meant that he said things that came across in a way that --
LANGDALE: Aggressive and intimidating?
HODKINSON: Some people may see it like that.
LANGDALE: So the answer is yes, you liked him, but yes?
HODKINSON: No, I can see why people could see it like that but I don't think he meant to come across as intimidating.
LANGDALE: Page 3, you set out at the top what's been said about three deaths?
HODKINSON: Yes.
LANGDALE: Alison Kelly says: why not before serious allegations? Was that the first time Ms Kelly had been told by you --
HODKINSON: Yes.
LANGDALE: -- what Dr Jayaram said. Her response is "why not before?"
HODKINSON: Yes.
LANGDALE: Mr Chambers says: "Lucy cannot go back to unit. "[Ms Kelly] challenges: she should go back."
HODKINSON: Mm-hm.
LANGDALE: So you have just told her a description of events that you say was a turning point for you: "Took you home, afterwards upset"?
HODKINSON: (Nods)
LANGDALE: Ms Kelly's first reaction is diametrically opposed on its face because she says "she should go back". What did you make of that? Why do you think she was saying that?
HODKINSON: I think she was -- she was shocked around why this was the first time it had been said in these terms.
LANGDALE: Therefore it couldn't be true?
HODKINSON: Sorry?
LANGDALE: Therefore it couldn't be true because she is suggesting here, isn't she, "she should go back"; if she thought she was murdering babies, would she say that?
HODKINSON: No, I don't think it was because she was suggesting it wasn't true. I think she was, she was genuinely concerned why -- why had -- why had this information not been shared in these terms before?
LANGDALE: Why is that relevant to whether she should go back?
HODKINSON: I -- I don't know. I don't know.
LANGDALE: It isn't relevant, is it?
HODKINSON: I think possibly because Alison and I were having those regular conversations with Letby and that was -- that was the position that obviously we had -- we were continuing to inform Letby about. I think with that, there was -- I know it's hard to say it now, but there was almost a point of where we were just trying to maintain the status quo with Letby, knowing that certainly from my perspective it was highly unlikely she was going to go back even though I may have said it -- it was highly unlikely she was ever going to go back into that unit.
LANGDALE: Mr Chambers: "Okay she goes back and something happens. Deal with the Speak Out Safely. Part of me says ring police and GMC."
HODKINSON: (Nods)
LANGDALE: What's the purpose of the GMC?
HODKINSON: I don't know. I don't know.
LANGDALE: But he's suggesting there GMC?
HODKINSON: Yes, I don't know. I think if you can imagine in the meeting obviously I am relaying what -- information which shocked me hugely. It was a very emotional meeting, it was a very difficult meeting.
LANGDALE: Ms Kelly doesn't seem shocked or emotional about the safety of babies on the unit, does she,
because she says "she should go back"?
HODKINSON: She --
LANGDALE: So what was she shocked by?
HODKINSON: I think she was shocked about these -- the -- the information that I was relaying back. She was absolutely shocked. Ms Kelly, you know, again I have as, as a nurse and as a Director of Nursing she -- she was an excellent nurse to work with.
LANGDALE: Let's go, please, to INQ -- that document can come down -- 0014281, page 1 and a meeting on 28 March. Sir Duncan is here?
HODKINSON: Yes.
LANGDALE: Ian Harvey, yourself, Alison Kelly. Sue and Alison Kelly. "Lucy being returned to unit week commencing Monday, 3 April 17 for one hour a day." Mr Cross says: "This can't happen in the view of police investigation. To be discussed further." But at 28 March 2017 that was your and Ms Kelly's view; that she was on her way back to the unit and due to start the following week?
HODKINSON: So that -- that goes back to my point earlier that in terms of trying to maintain the status quo, that was the position we were saying to Letby, so that was
describing that.
LANGDALE: Let's deal with the management of Letby now, because it is complicated in terms of what she has been told. I appreciate that. Let's go to INQ0012175, page 9. This is what you tell the police.
HODKINSON: Sorry, what was the page number again?
LANGDALE: It is INQ0012175, page 9. It's going to come up. We see here you tell the police: "Lucy was informed, it was her first day back from annual leave, because as I said" --
LADY JUSTICE THIRLWALL: Are you using a hard copy?
HODKINSON: I have got the hard copy here as well.
LADY JUSTICE THIRLWALL: I didn't appreciate that.
HODKINSON: Yes.
LADY JUSTICE THIRLWALL: Will you also look at it on the screen, so we are all looking from the same copy?
HODKINSON: Thank you.
MS LANGDALE: You said: "Deep dive review took place while she was on annual leave. This was the first day back and she was advised that obviously there were some concerns around the increase in neonatal mortality and a potential connection with her being on duty. You know, a concern
that obviously on that basis potentially we needed to refresh her competencies and we would redeploy her from the unit but she was not advised that she was going under an investigation. She was not advised she was being suspended. We went for a different employment process. A different, yes, I suppose than what we would normally do but that was because we still weren't saying that was all due to Lucy at the time."
HODKINSON: Mm-hm.
LANGDALE: Then over the page, you comment, so page 25 actually, not over the page, page 25, you comment this: "So, you know, I think that -- I suppose alongside all of that the Royal College review and the draft report had happened but Ian and Alison to some extent were kind of managing that part but we started those series of meetings with Lucy. Did I believe she had done anything or did that come across or did she know nothing of that came across? When I have thought about this for a long time and I never -- I did not believe at that stage she had done anything. She was a quiet person, very reserved, but could get angry at other points. In those meetings she was very emotional, but, you know, I suppose when you have got a member of staff and you know they are being led by a very strong Union, you don't know whether they are being like that because of the Union or, you know, that's generally how they are." So when you say to the police you were following a different employment process, you tell them that's not what you would normally do because you weren't saying that this was due to Lucy at the time. Is that your thinking about why you are not telling Letby the concerns you have? What employment process were you following?
HODKINSON: I -- I think the reason that we didn't explain all of the concerns was in case we had to take further action further down the line. You know, redeployment is -- is in people professional terms and in employment law terms, it is a neutral act. It's supporting both -- and we did it to support both the unit and to run functionally and also to support that member of staff as well because we still needed to make sure that the unit continued to run.
LANGDALE: Before you redeployed her to the Risk Team, can we have on screen, please, INQ0002839, so it is not before then, this is when the review has been undertaken, the RCPCH review. This is the letter that Sian Williams sends to Letby and she told the Inquiry that you drafted this letter for her and she didn't think it was transparent:
"...and with the benefit of hindsight I should have stood up to this more than this." So if you read this letter, it's one of a number. Do you think you were being clear with Letby at all?
HODKINSON: I think the grievance found that we weren't as well.
LANGDALE: If we look at INQ0002879, page 91, this is drafted by -- sent from Eirian Lloyd-Powell, I think Yvonne Griffiths may have had a hand in drafting it but you presumably saw it and would have approved at the time of what was being said at this stage?
HODKINSON: I don't think I approved this, no.
LANGDALE: But it was being suggested, did you know it was being suggested Lucy was agreeing to the supervision first and others would have to follow and there was no plan for everyone to have supervision, was there; it was just her that you were concerned about?
HODKINSON: It was just, yes, and that's -- that's -- apologies, Ms Langdale, I thought you were going to ask something else then as well. That -- the process around supervision was a normal process that we would use and any organisation would use within the NHS. But it was potentially around was there a concern with her competence, her education and ensuring that there was a relevant professional supervising her
practice during that time.
LANGDALE: You had a complaint from her Union, didn't you, about the process? If we go to INQ0002960, page 2. You are cc'd to this email to Clare Edwards. We see at the first paragraph: "It has been alleged our member has been involved with more of the deceased patients than any other member of staff. According to our member she is going to be informed at the meeting on Monday she will have to work under direct supervision and an action plan will have to be followed." Next but one paragraph: "My concerns are more to do with processes, what process has been followed and how has the organisation come to the conclusion it has? I would like to see evidence of an investigation into these allegations and the subsequent outcome. Who was the investigation officer? What evidence is there to suggest that our member may be linked to these unexplained mortality rates?" If we go back to page 2, we will see further emails between yourselves. You email Alison Kelly. If we go to page 1. Concerned about the situation, and at the top, everyone is very stressed, Sian mentioned her email, you managed to have a chat with her and the
Unions. I will chat with you tomorrow. So this appears to have created some stress for you, for Sian Williams, for Alison Kelly. Would you like to expand upon that for us?
HODKINSON: Yes, I think one managing -- understanding the concerns from the Consultants, you know, was -- was -- again I said it in my first words at the start, being in this situation knowing those concerns from the Consultants at the start, knowing the difference of opinion of the nursing team, knowing that there was a whole set of other initial reviews that had been undertaken, you know, this, this was something that I had never envisaged having to go through. And I don't think any of the team, and that added to the stress around this as well, trying to find the right set of actions to undertake, yes, it was -- it was an incredibly stressful situation.
LANGDALE: The next day we know you seek some advice from Mr Ian Pace. That is INQ0102205, page 1. So this is on 18 July. You are setting it all out on page 1. If we go to page 2. He sets out paragraph 2: "We may also want to refer to the fact this action has been taken only in the interests of patient safety but also to protect her position going forwards." Further down the page, the penultimate paragraph, we see you say: "Sue believes that they are going to need to call in the police and she also mentioned there was potential press interest in the story." So your view following the emails from the Union reps and talking to him was that you would need to go to the police?
HODKINSON: I think you -- it was very helpful this morning, actually, because you raised the point around Dee Appleton-Cairns' first conversation with Ian. I think it was roughly around 5 July and Dee had used the phrase around Beverley Allitt at that stage with -- with Ian. So he knew and then obviously then I had the conversation as well so he knew the gravity of the situation that we were dealing with.
LANGDALE: Did you think you should go to the police? You seem to be saying you are going to need to. Was it your view --
HODKINSON: I think that was one of the options, definitely. It was always an option that we were looking at as a team, it was -- absolutely all the way through it was an option we were looking at.
LANGDALE: When did it become the option you thought that was the right one?
HODKINSON: For definite 15 March 2017.
LANGDALE: That can come down, thank you. On 8 September you have another consultation with Mr Pace, that is INQ0102274, page 1. You explain to him that Letby had now been removed from the unit and placed in the Risk Management Team. You refer there to: "The barrister who is on the review particularly commented in relation to the treatment of Letby and raised concerns regarding her treatment and exclusion from the ward." We know there was a non-practising barrister on the RCPCH review. When you refer to the person as a barrister, what was your understanding about that person's qualifications or role?
HODKINSON: I -- I didn't know initially that there was a barrister on the -- on the review group at all. And to be honest, I wasn't really managing that whole process. That was from Mr Harvey.
LANGDALE: So had Mr Harvey told you there was a barrister on it? Who had told you, do you know?
HODKINSON: I can't recall exactly who had --
LANGDALE: So someone had said it to you and then you say that to him. And then over the page at page 2, you say: "In respect of the Consultant Dee and Sue both have
concerns about him and said that more issues are being raised about him regarding behavioural issues. Seems to be a suggestion he's bullying and harassing employees on the ward. I accept this is likely to be an issue which, depending on the issues, whether it is bullying or whether it is a breakdown in relations may need to be managed. My concern was that there was a risk now that he has raised these concerns that he could allege this was a protected disclosure and if we start managing these concerns at this stage she may say she has been subject to a detriment as a consequence." What did you make of the advice you were being given around this?
HODKINSON: Apologies, in respect of what?
LANGDALE: What did you think he was telling you there? You have said you have raised concerns about behavioural issues --
HODKINSON: Mm-hm.
LANGDALE: -- being raised about him regarding behavioural issues. What were those concerns, what were you understanding they were?
HODKINSON: So I think the concerns were the impact this was having on Dr Brearey and how then he was coming across with others as well. So, you know, I think it
was the stress of the situation was impacting on his behaviour, whether knowingly or unknowingly, I don't know. But it was impacting on his behaviour. And I think the point that Ian was saying was that because Dr Brearey had raised those clinical concerns at the -- obviously with -- with other members of the Executive Team before I was involved, that was a protected disclosure from a whistleblowing perspective.
LANGDALE: That can come down, please. The 8 September there is a meeting again between Execs and if we go to an options document first, if we can, INQ0004660, page 1.
HODKINSON: Excuse me.
LANGDALE: This appears to be the document you presented in the Executive meeting with the options around what could be done with Letby. Do you recollect that this is your document?
HODKINSON: Yes, I pulled this together.
LANGDALE: You put it together. So we see there's four options on the front, other options on the next page. In the meeting, it suggests you went for option number 4. Do you know which option were you going for?
HODKINSON: What I think we went with -- actually 4. It -- we -- you know, there was the intention to reintegrate back at some stage but the redeployment continued within the Risk and Patient Safety team.
LANGDALE: So: "Reintegrate that with NNU without ITU/HDU duties whilst competencies review in three months." That looks like that's option four, doesn't it?
HODKINSON: It could -- yes, I don't know who took the notes of the meeting, obviously when you are presenting it it's -- you know, I wasn't capturing all of the details but we -- we retained her in that redeployed role at that time.
LANGDALE: If we go back to the meeting notes, INQ0006265, page 1. This is Mr Cross, Mr Harvey, Ms Kelly, Ms Rees, part of the meeting, yourself, Tony Chambers: "Position re Lucy Letby. Options paper. "Constructive dismissal discussed, other risks, no further work for nurse. Paediatricians not happy on return. SH options, recommended option 4." Which appeared to be the one we have just spoken about?
HODKINSON: Mm-hm.
LANGDALE: Competencies being assessed, et cetera. Then it says: potential deal with Steve. Was this about managing a move or getting him away
from the unit, potential deal with Steve?
HODKINSON: No, I think -- I think it goes back to my point earlier as well in that there were concerns around Dr Brearey's behaviour at that stage which, you know, now on reflection I can see why because of the way in which the Consultants were having to deal with so many matters. But I think it's important to note that right at the outset, and I think it's on my notes from around about 27 June 2016, that we were considering occupational health support for Dr Brearey at that point as well.
LANGDALE: We will go to that later. When you say "his behaviour", there's one email he sent Ruth Millward which the Inquiry has examined and subsequent to that he was asked to attend mediation with Ms Millward as a consequence of that email. Is that the behaviour you are referring to, because there is nothing else in his behaviour or communication with staff that the Inquiry has seen that would reflect what you have just said?
HODKINSON: So, I don't -- I don't think the mediation actually happened with Ms Millward, apologies. I think that was -- she raised a concern, we saw it on one of the earlier emails as well. But I understood that there was other concerns being raised around how he
was speaking to people within the unit.
LANGDALE: Who did you think -- who told you that and who was it?
HODKINSON: I can't recall specifically but it was definitely, it was -- it was raised?
LANGDALE: If it had foundation, no doubt you would have been interested to know so who, what? You have had a long time to think about this.
HODKINSON: I think -- I think it was from a nursing perspective.
LANGDALE: A nursing perspective?
HODKINSON: Yes.
LANGDALE: So one of the nurses may have said that to you. Who?
HODKINSON: It may have come through from Alison Kelly or from Karen Rees but, I -- I can't recall specifically. I think it was, it was valid to be concerned about Steve's behaviour because of the pressure that he was under as well. He was the clinical lead for that unit.
LANGDALE: The pressure he was under because he wasn't being heard with the complaints he was making?
HODKINSON: No, I don't, I don't think it was just that. I think it was all the different aspects as well, you know, it's clear I didn't have much interaction with Dr Brearey but it's still clear he took this very
personally as well.
LANGDALE: If we go to INQ0015640, page 40, the next day, it's Dr Jayaram's behaviour looking at this meeting that appears to be being raised. Is this your note? Is this one of your notes, Ms Hodkinson?
HODKINSON: It is, yes, apologies.
LANGDALE: Behaviour is not appropriate now we have got it for Ravi Jayaram, can you see, number 2?
HODKINSON: (Nods)
LANGDALE: The obstetrician's behaviour. That is Mr McCormack, is it?
HODKINSON: Yes.
LANGDALE: So suddenly we are talking about their behaviours as well.
HODKINSON: (Nods)
LANGDALE: Why was that?
HODKINSON: I think it was because the -- again, I -- I don't remember the full specifics around it but I think there was a particular incident or -- or a number of people were concerned around some of the language that was being used and how things were being talked about, which weren't necessarily in keeping with the Trust's values and behaviours.
LANGDALE: We will go to the evidence for that later, thank you, but if we look, please, at INQ0002860, page 1, on the same day you are getting this letter from Karen Rees. We see in the second paragraph she says: "In my opinion, this decision is wrong and immoral." This is about the position for Letby not going back on the ward. She says at paragraph 4: "I am led to believe two of the clinicians do not want LL back on the NNU. Why is the senior clinician allowed to destroy someone's career without any clear evidence?" When you received that, you knew, because you had spoken to Dr Jayaram, that he had genuine concerns and you believed those concerns. You had been in a meeting on 30 June with Mr McCormack, Dr Brearey. This wasn't about one or two Consultants; it was a respected medical body of people, wasn't it?
HODKINSON: (Nods)
LANGDALE: When you read Karen Rees' letter, did you go and disabuse her of some of this?
HODKINSON: Sorry, I missed that?
LANGDALE: Did you go and tell her: you have got that wrong, that is not what Dr Brearey's saying or what he was trying to destroy someone's career? There is no motive there is nothing I am worried about; that's not the position?
HODKINSON: I think -- I think Karen was a very passionate individual but she was a very strong nurse as well. And she would challenge -- there was many situations -- excuse me -- outside of this that I saw her challenge things. So the question that you are asking me is: did I challenge her back?
LANGDALE: Yes, did you say to her: that's not an immoral decision, these were genuine concerns raised by the medical body?
HODKINSON: Yes, we had.
LANGDALE: You had those conversations?
HODKINSON: We did go through that and the reasons why. I think it's also important to know that at roughly the same point I was also having similar concerns raised by Kathryn de Berger, who was one of my direct reports but she was the Occupational Health and Wellbeing Lead supporting Letby as well and raising why were we not letting her back on the unit.
LANGDALE: Both Karen Rees and Kathryn de Berger we know were having weekly meetings, weren't they, with Letby? Karen Rees says she was asked to do that by you and looking back, that may have compromised her objectivity. She got close to Letby. Do you agree that it was not a good idea those meetings should happen in the format
they did?
HODKINSON: Again I have reflected on this an awful lot, you know, I have also had multiple different meetings with Letby, as you will see from the various letters, the various notes in my notebook and yes, it's -- it's something -- I think we were all we were almost acting like almost business partners as such managing the situation and I think all of that now has meant that my trust and judgment in people has really changed.
LANGDALE: If you look at one of those letters, INQ0008964, page 83, you find yourself in the situation where you are reassuring Letby from an early stage and before there's been any question of investigating the Consultants' concerns, at paragraph 5 here you say: "Alison and I advise the best outcome would be to get you back working on the neonatal unit. Karen reiterated not to worry about how this would happen. She reassured you that a robust supportive plan would be put in place to facilitate this."
HODKINSON: (Nods)
LANGDALE: And we go over the page, page 84. You repeat: "Whilst you know you have support already available from Occupational Health, please be aware the service can be accessed at any time." So not only does she have support, she can access
direct line for service help?
HODKINSON: (Nods)
LANGDALE: If we look at another letter, 26 October, INQ0008964, page 81. This is October. And you say at paragraph 4: "We explained we would represent your concerns within the board conversations and would continue to keep you updated on how this was progressing."
HODKINSON: (Nods)
LANGDALE: If we go over the page. Paragraph 2: "I explained you are not under investigation but that we are temporarily redeployed you as a supportive measure as it was a vulnerable environment with some of the comments we have been made aware of." So suddenly she is not being told of the genuine concerns which you believed and felt were a patient safety concern. She's being told she needs to be protected from a vulnerable environment because of some of the comments that are being made by others about her, what did you mean by that?
HODKINSON: I think, now looking back at this, I could have worded that differently.
LANGDALE: Because it wasn't true?
HODKINSON: No, no, no. No, but I just think that I could have perhaps again been more transparent with this.
LANGDALE: What should you have said then? Let's not worry what's there, what would have been the right thing to say to Letby then?
HODKINSON: That, you know, there were these the concerns around her providing care.
LANGDALE: And that they needed investigating?
HODKINSON: But I -- apologies.
LANGDALE: No, go on?
HODKINSON: I was just going to say I think you asked me at the start as part of my role as the Exec Director of People as well within the Trust and I think any Chief People Officer, as they are now, or Executive Director of People, also has to -- when you have an employment case such as this, not only are you considering the patient safety implications, the workforce implications, you are also considering the potential legal risk, the employment legal risk around a situation. I had been advised obviously by Mr Pace that we were at risk of a potential constructive unfair dismissal claim and while that was a claim that I was prepared to -- if it came out from Ms Letby, that I was prepared to manage. As a steward of the organisation and managing taxpayers' money obviously, you are trying to ensure that you balance your decision-making. And so I think that that was, you know, a factor.
It was obviously advice had given by our external legal team and it was an element where I was trying to make sure that we were mitigating any other risk as well.
LANGDALE: You get letters from Tony Millea, from Kathryn de Berger, I won't take you to them all but expressing concerns about Letby's health and well-being and you come yourself to write a letter, INQ0002982, page 1, back to Tony Millea. You say: "Both Alison and I are very much aware of the impact on Lucy's health and well-being ... we know Karen, Hayley and our occupational health manager are providing significant support around. We did discuss any further support she may require and we agreed to follow it up with clinical contact with the NNU team which had not taken place whilst Eirian was on leave." What pressure were you feeling at this point in respect of Letby herself?
HODKINSON: I think particularly throughout all of this process the Royal College of Nursing put myself and Alison Kelly under significant pressure. I don't know whether that was right or not but that's certainly how it felt, so that was not only the local representative who I did work with really well who was the Staff-Side Chair as well, but also Tony Millea, and other
representatives, Colm Byrne and others who -- who supported the RCN and I think when going through the documentation from the RCN I have had probably 10 or more different types of emails expressing concern around the way in which we were treating Letby. When the mediation process took place, and Dr Brearey did not attend, their view around how we should be managing that, there was also other aspects around the multiple different conversations that I had with Hayley Griffiths I think it was at the time. So there was a significant amount of pressure from the RCN.
LANGDALE: You write a further letter to Letby, INQ0008964, page 79. This relates to a review that's been conducted, the RCPCH review. And you say at paragraph 5: "Alison reassured both yourself and Hayley Mr Harvey was very clear around the confidentiality of information contained within the draft report ... doesn't want to cause you or any member of staff more distress. The process of factual accuracy review would be strictly managed by him." By Mr Harvey.
HODKINSON: Mmm.
LANGDALE: "... and I added that if either yourself or Hayley become aware of anything untoward then you need
to advise Karen, Alison or myself immediately." What was the instruction you had had there from Mr Harvey, if any?
HODKINSON: I think there was a concern that information was going to be disclosed around any member of staff but particularly Letby, given the volume of -- or not necessarily volume, the concerns that the Consultants had raised. And I think as well, you know, within the grievance there was the point around her confidentiality.
LANGDALE: Over the page, you also explain that you thought Mr Millea's availability was key to the grievance hearing alongside the chair of the hearing and would ensure he was available. Why was that?
HODKINSON: It was important that -- again this is standard practice I suppose within any grievance, that if -- I think I mentioned it before as well, that anyone who raises a grievance -- apologies -- particularly when it goes through a formal basis, they are afforded the right to have either an employed member of staff to support them or their Union representative. So obviously Letby was keen to have an experienced Union representative there, which was Mr Millea.
LANGDALE: That can go down, thank you, and a totally different document from the Risk Register, INQ0004657. This is an entry, Ms Hodkinson, on the Risk Register placed by Karen Townsend and it says: "Potential damage to reputation of neonatal service and wider Trust due to apparent increased mortality within the neonatal unit." The risk was added 11 July 2016. In Karen Townsend's evidence, she said Ms Kelly and Ms Hodkinson scripted this for her. Do you remember scripting anything or putting anything together for the Risk Register that reflected what was going on in the neonatal unit?
HODKINSON: I-- I don't specifically remember scripting that for Karen, no, I don't. I can see that it -- you know, the damage to the reputation point.
LANGDALE: What was the damage to the reputation point about the neonatal unit?
HODKINSON: I -- I -- how -- how would those requiring the services from the neonatal unit feel by having their babies there?
LANGDALE: When there were suspicions of a nurse murdering babies there?
HODKINSON: Or that, you know, the unit was being downgraded, you know, some of the public communication that we had to do, how would --
LANGDALE: It would depend why it was being downgraded,
wouldn't it, that might --
HODKINSON: Sorry?
LANGDALE: It would depend why it was being downgraded; that might influence most of us as users of a hospital?
HODKINSON: Yes, yes. I mean, ultimately as I know from friends and family I mentioned earlier who had to access the service, to have that facility on your doorstep was fantastic and to have you know those -- those clinicians on your doorstep was amazing. But to then not -- take that away or reduce that level of service, you know, for a -- for a local Trust, that's -- that's significant in terms of the reputation.
LANGDALE: That can go down now, please. Can we have INQ0008964, page 95. I am sure we can take this quite swiftly in the light of your earlier evidence, Ms Hodkinson. I am going to put on the screen the grievance and I think you agree with me that the grievance was actually against how the Execs, yourself, as head of HR, Sian Williams, Alison Kelly, how you had been communicating and the processes you had been using to inform Letby about what was actually taking place?
HODKINSON: Yes, I think there was a further element as well, if I may, which was around the concern in terms of how Letby had been spoken about but it, but it was
predominantly around that openness and transparency in managing the issues.
LANGDALE: She wanted to know what the allegations were and how the Trust were dealing with them and informed of any evidence the Trust may have in regards to the above. She was never, through this process, given the Consultants' or the Thematic Review or anything like that, which was the evidence of the concerns against her, was she?
HODKINSON: No, no.
LANGDALE: So why was that?
HODKINSON: I think it didn't feel appropriate because it goes back to the point I said before in that potentially if there was an investigation that was required further down the line, you know, we were balancing that -- that position all the time and you can see from various different notes the options appraisal, as I said before, the advice from Corinne Slingo, various different aspects, you know, going to the police was a potential. So to give that information we felt was not appropriate.
LANGDALE: INQ0005279, page 2. This is your deputy summarising the key questions needing answering and she says: "We do not have a modicum of defence for this ...
propose we appoint an investigating officer, I suggest Sandra Flynn. However, the investigating officer will have to ask very difficult questions of the Consultants. I understand you were considering asking Ian Harvey to speak to Stephen Brearey and other Consultants have asked him to explain their concerns in writing and Speak Out Safely."
HODKINSON: Yes.
LANGDALE: Because then they wouldn't have to have been shared. Did you actively consider following the process at this point and avoiding what was going on with the grievance?
HODKINSON: I did speak to Ian -- excuse me, I did speak to Ian Harvey at that stage. I don't know what Ian did with that but I suppose it goes without saying and I think I mentioned this earlier as well, apologies, that Speak Out Safely was always around this set of issues as well.
LANGDALE: You were then interviewed yourself in the grievance INQ0002879, page 25. And you are asked about the redeployment decision. Second box: "The point I am concerned with is how open we were with Lucy. The reason we weren't was there being such vehement feeling without substantiation." Vehement feeling without substantiation. It's not what you have told us you thought, certainly from March 2017, is it?
HODKINSON: No, I know, I -- I -- I realise how that now looks and feels but it was from in terms of March 2017, did you say, as well, apologies?
LANGDALE: Yes.
HODKINSON: Yes. If I had -- if I known that information at the point of this meeting, on 21 October 2016, I would not have been -- I would not have said that in that way.
LANGDALE: You had had by the meeting, the June 2016 meeting when the doctors had said what they were concerned about and why. Did you still see that as without substantiation? Are you saying even then what we know was said on 30 June from your perspective was without substantiation?
HODKINSON: I -- that was potentially a poor choice of words at that stage. I think what I was trying to get at, and didn't articulate it well, I see, was that there was this range of factors that, that were we were having to unpick. You know, many different people had looked at this, the clinicians were raising those concerns around, around Letby. You know, at that stage, multiple different
reviews, multiple different people outside of the organisation telling us different things.
LANGDALE: The only people we have seen you describe before this meeting as either being emotional or over-involved are senior nurses. You don't describe the doctors as being vehement in terms of tone or emotional involvement, do you?
HODKINSON: No and that's why I say I apologise. That's -- it's, it's -- I think that it was the emotion myself at that time and that was probably inappropriate.
LANGDALE: Over the page, you say, in answer to Dr Green's question: "The aim is to get Letby back on the unit, that is the intention to get her back, how she wants it to happen. She needs some control." And then in the last, on the last page, page 27, at the top: "Difficult conversations for the board. Kathryn de Berger has concerns over Letby's short and long-term health as a result of it. IH is following up on the medical side." So you express in this meeting concerns for Letby, don't you? They are filtering through even at this point?
HODKINSON: Yes, without doubt. But I think I'm also
referencing the concerns from the medical perspective as well. I don't, I don't recall exactly when it was but Kathryn did raise to me particularly the health concerns around Letby and that was picked up in, from one of the meetings that I had with her with, with Kathryn and also with Letby as well. I think, on reflection, the medical side of the support that we offered we could have done more, we could have done more. I think whilst it goes without saying the Occupational Health support was there, did we -- Ian was managing multiple different aspects -- I've done it again -- multiple different aspects and did he have the capacity to pick all of that up? I don't know. Could we have put someone in place to support the team? Yes. Could I have asked one of my business partners to support the team more regularly? Yes. And I think those are some of the reflections that I would like the Inquiry to be aware of as well.
LANGDALE: The hearing manager's findings. If we go please to INQ0003611, page 2 and while we do, the appointment Annette Weatherley, do you think she was an appropriate choice as a nurse? Would it have been better to have a neonatologist, for example, who understood the medical concerns?
HODKINSON: I think when you go back to what the grievance was about: this was about the transparency of the information we had provided to Letby and how she believed she was being referred to by clinicians. This wasn't about clinical care. This was about the transparency and openness of the Trust and this was about how she was being treated. So on the basis of that, we felt it was important to have someone independently hear the investigation and all the findings that Dr Green had, had undertaken and it was important that that person was aware of what potential nursing support could be put in place because Letby was a nurse.
LANGDALE: Should she have been aware, when Dee Appleton-Cairns was putting material together, for example of the Thematic Review, conversations, like the one you had on 30 June? Should she have been aware of the bigger picture, Annette Weatherley?
HODKINSON: You could look at it now and say that absolutely, yes. But at the time, those weren't the points that she was raising her grievance about. So it wasn't relevant for the points that she needed the answers on.
LANGDALE: So you stayed in the lanes of the grievance process?
HODKINSON: Sorry?
LANGDALE: You stayed in the lanes of the grievance process, the points she had raised and dealing with those?
HODKINSON: She was dealing with those, yes.
LANGDALE: Looking at these findings now, at paragraph 7. When you read this, what did you make of this conclusion at paragraph 7, particularly her finding herself able or appearing to be able to acknowledge concerns were raised through appropriate channels in line with both the Trust's Speak Out Safely policy and guidance proffered by the GMC? Did you think that was the case when you read that?
HODKINSON: Obviously this, this was shared with me. I didn't make any changes. It wasn't for me to make any changes to this. I -- I participated as one of the --
LANGDALE: Interviewees.
HODKINSON: -- witnesses essentially as well. But it's not for me to change what the Chair of a grievance hearing finds.
LANGDALE: Did you think that was wrong, just inaccurate? I see you couldn't change it, but did you read that and think that's wrong?
HODKINSON: Now? Now?
LANGDALE: Did you then? I mean, you knew what had
happened in terms of him talking to you, Dr Jayaram, what had happened at meetings.
HODKINSON: I -- I think it could have been worded differently, but it wasn't -- it would be completely inappropriate for me to change that wording that a independent Chair has added into their findings from a grievance.
LANGDALE: And here we see the next finding: "I do not find the Consultants' concerns when reiterated to the Executive Team were clear, honest and objective." What did you make of that? I mean, Dr Jayaram had spoken to you as and Exec. Did you think he wasn't clear, honest and objective?
HODKINSON: These were the findings of the, the Chair of the grievance hearing.
LANGDALE: But you knew that one was wrong, didn't you? You were an Exec and you knew that it wasn't the case that any Consultant hadn't been clear, honest and objective with you?
HODKINSON: I can see that now, how you are saying that, yes.
LANGDALE: So when you read that did you say: Well, which Exec are they supposed to have not been clear, honest and objective with you?
HODKINSON: I don't -- I don't believe I did. But as I say, would it be -- I don't -- at the time I did not think it was appropriate to change the -- the information that was included from an independent Chair of a grievance hearing.
LADY JUSTICE THIRLWALL: Just to be clear. This is the Chair incorporating what Christopher Green says.
HODKINSON: Yes.
LADY JUSTICE THIRLWALL: A direct quote from his. That's just really for the record.
HODKINSON: Yes.
MS LANGDALE: So you didn't challenge it at the time, but you knew that that had been said; that's the position?
HODKINSON: I didn't challenge it at the time, no.
LANGDALE: That can come down, thank you. You send another letter to Lucy Letby, January 2017, INQ0008964, page 49, and you say at page 50: "We went on to discuss how we all needed to agree a communication plan for your transition back to the unit." You explained how you wanted to be open and honest in the communication that was issued regarding your return. You recognise that as a Trust we may not want
to communicate certain things. And then four paragraphs down: "Alison and I advise you that one of the key actions stated within the letter was to arrange a meeting with your parents and yourself." This is the grievance letter.
HODKINSON: Mmm.
LANGDALE: What did you make of that recommendation, that there should be a meeting? As head of HR, what did you think about that?
HODKINSON: Very unusual. Very unusual to meet with the parents and I -- I'm sure the Inquiry has seen from my statement that I had already had a quite difficult set of interactions with Mr Letby as well. So it was an unusual step. But as far as possible whenever a grievance hearing is undertaken, you -- an organisation will try and deliver each of those points of that grievance.
LANGDALE: We know in a meeting, the meeting held on 22 December 2016, at the Chief Executive's office, if we go to INQ0002912, page 3. We see Mr Letby at the penultimate entry says: "Look at the highlighted section of the grievance. At the summing up of the hearing Dr Chris Green advised everyone that they showed everyone empathy. Only RJ [that is Ravi Jayaram] SB [Stephen Brearey] lacking. The behaviour of those two people, they should be instantly dismissed." If we go over the page to page 5, Mr Harvey at the bottom: "It's not appropriate behaviour nor had it been reported to me subsequently. SH and I met with SB. Will be followed up with documentation to all of them." Mr Letby: "What severity of action?" And you say: "It depends on the issue. If it's helpful we can share the disciplinary policy with you so you are aware. Hayley will be able to advise you from her understandings." Mr Harvey, over the page: "We need to support you. We need to ensure we pick up with medical staff and also the requirement for mediation." So he is saying they should be dismissed. Mr Harvey is saying it's not appropriate behaviour and you're saying, "I can share the disciplinary policy and Hayley will be able to help you." Why did you want to share with him the disciplinary policy or why would that be helpful?
HODKINSON: I think just trying to be, I -- I think just trying to be helpful in the meeting. Sometimes that's my downfall.
LANGDALE: So you are trying to please him, "We have our disciplinary policy." But you know why he's asking for that, or you think you know why he's interested in that. Because he thinks they should be instantly dismissed, doesn't he?
HODKINSON: I think it's very clear that the parents wanted -- they wanted to take action against the Consultants.
LANGDALE: If you take that down. At paragraph 375 of your statement.
HODKINSON: Which paragraph, apologies?
LANGDALE: 375.
HODKINSON: Thank you.
LANGDALE: It is your calls with John Letby and you documented calls on 16 and 17 January. You say: "In my view he wanted to express his anger towards the ongoing situation with Letby. He had previously contacted Kathryn de Berger who was providing Occupational Health support to Letby. John was placing Kathryn under significant pressure to have the calls escalated to a more senior level. In normal circumstances I would not have dealt with a call of this
nature or spoken to a staff member's parents. These were however exceptional circumstances and I felt I needed to step in and support other members of staff who were struggling with the amount of pressure being exerted." When Kathryn de Berger was asked if she felt she was being pressured by Mr Letby in phone calls she said she couldn't recall that. Can you tell us from your perspective how it was that you saw that staff were responding to the situation of being contacted by Mr Letby?
HODKINSON: Sorry, it went in and out slightly then. Apologies, could you say that again?
LANGDALE: Yes. What was your understanding of how your staff, Kathryn de Berger in particular, was responding and/or Hayley Griffiths if she had said anything to you about the level of calls from Mr Letby?
HODKINSON: So I think I do recall the conversation with Kathryn and again for the benefit of the Inquiry Kathryn, extremely experienced Occupational Health nurse, been at the Trust for a good number of years, been at other organisations as well, and I had no reason to doubt her telling me this as well. She, she described to me how Mr Letby was getting quite agitated on the phone with her, that it was
becoming increasingly difficult for her to manage. She felt very uncomfortable. And, you know, I didn't -- I felt that it was -- I needed to try and support her through this situation as well. It was very unusual for me to have that; in fact, I don't think I have ever spoken to a member of a family in relation to an employment issue. That was the only time. And then having the conversation with Mr Letby, it was very clear it was a very difficult set of conversations.
LANGDALE: You found yourself at the board meeting, I will call it up, INQ0003237, page 4. It is a board meeting on 10 January 2017 and it's you who finds yourself reading out a statement from the individual, it's reported that it was in the individual's own words. Was that the statement from Letby herself, the one that Karen Rees then read to the Consultants in the Consultants' meeting? See page 4, paragraph 6.
HODKINSON: Yes. Yes. Sorry, what is the question as well?
LANGDALE: You read it out, we have seen the statement, I don't need to take you to you it, is three or four pages long. How come you were reading that out at the board, had anyone asked to you do that? Did you think that was a good idea?
HODKINSON: I can't recall exactly why I read it out. Maybe because I -- I was representing members of staff, only for those purposes or perhaps because I was -- you know, I had, I had met with Letby on a regular basis. I can't recall the reason why I read that out.
LANGDALE: That can come down, please and very briefly before we stop for another break, INQ0057275, page 1. There is now an issue for communications, wasn't there, it is just the top of the email we need from Mrs Appleton-Cairns. You see at the top, we don't need the A&E stuff. "Met with Lucy and her family prior to Xmas. Comms being worded with Gill. Lucy wants to draft her own comms. Work to be done with SH." So this is comms around what obviously people are going to be told and if we see -- if that can come down INQ0102217, page 1, you look like you sought advice on this?
HODKINSON: (Nods)
LANGDALE: Can we get a draft from Mr Pace --
HODKINSON: Yes.
LANGDALE: -- on INQ0102217. That's his suggestion. Let people read it. (Pause) But then we see what is sent at INQ0058663, page 1.
We see there: "After a thorough investigation established all the allegations to be unfounded and untrue and I have therefore been fully exonerated and I have received a full apology from the Trust." That goes to all of the staff in the NNU. What did you think about the accuracy of that as a communication as far as you were concerned?
HODKINSON: Very disappointed in it, if I am honest. We had provided the guidance to Letby and her Union colleague and this was the information that was then distributed.
LANGDALE: You then have a meeting on 6 February again with Mr and Mrs Letby and Lucy Letby, INQ0008964. It starts at page 29. INQ00089640029, there we are. If we go to page 33 in this meeting, this is a regroup to discuss everything: "SL: We want something on record. What if I leave?" And you say: "There will be nothing on your record. It will not affect your reference or any other matters." So she's asking in February 2017 what is going to happen hereon in, and you say not affect your reference or any other matters. Was that your understanding at
that time?
HODKINSON: At that -- at that stage because she was she had been redeployed, I see -- if she wasn't due to leave at that point so at that point in time that was -- that was factual.
LANGDALE: You thought she was coming back at that point in time in April as far as you --
HODKINSON: (Nods)
LANGDALE: Is that option 4 she was getting back?
HODKINSON: That was -- that was the direction of travel at that stage, yes.
MS LANGDALE: The meetings you have or the weekly meetings there are a number. Perhaps it is a good time to break and we will only go to a few of those and a few comments.
LADY JUSTICE THIRLWALL: Okay. Ms Langdale, how long for the lunch?
MS LANGDALE: Would 2 o'clock be suitable?
LADY JUSTICE THIRLWALL: Yes, certainly. That's five minutes longer than I was thinking, so that's good. We will take a break now and start again at 2 o'clock.
(1.08 pm)(The luncheon adjournment)
(1.58 pm)
MS LANGDALE: My Lady, Ms Hodkinson, we will pick
up with the meetings that were happening on a weekly basis with Letby and they are at INQ0005340, beginning from page 2. I am not going to highlight many passages as we scroll through but just a few, if you can, for amplification. This first meeting on 10 January, second paragraph. Reassurance is given by Mr Chambers that there was nothing in the report about you. This is the RCPCH report, because he is talking about governance, communication, doctor/nurse relationships. Did you ever see yourself the RCPCH report. It can be highlighted in paragraph 2 at the top?
HODKINSON: Sorry, again?
LANGDALE: Did you ever see the RCPCH report yourself?
HODKINSON: I -- I do recall, yes, but it was really for Mr Harvey to kind of manage that report.
LANGDALE: There was a whole section about Letby, of the nurse, wasn't there and the HR process that needed to be followed and recommendations for forensic review of a number of babies that had died and we see here reassurance given there was nothing in the report about you. When Mr Chambers said that, were you uncomfortable or ...
HODKINSON: I think there was.
LANGDALE: Actually, my apologies, you may not have been -- were you at this meeting?
HODKINSON: I don't think I was, no, no. In fact if you look at the details above, no. Tony, Alison, Letby, Karen Rees and Hayley.
LANGDALE: Would you have thought that's not right if you had been?
HODKINSON: I think I seem to recall there were two different -- there was a confidential report and there was a more public facing report as well or not necessarily public facing but there was a different type of report.
LANGDALE: So there was something where stuff had been taken out and if it was talking about the bit that had been taken out, that was justifiable?
HODKINSON: I -- I -- having not been in the meeting I couldn't necessarily comment.
LANGDALE: Okay. Let's go to page 3, please. You are advised in the top meeting: spoken with Karen Rees about taking those calls that you said about in the evening with Mr Letby.
HODKINSON: (Nods)
LANGDALE: Made it clear you are a trusted member of staff. The onus is to have correspondence with you
first and not your parents.
HODKINSON: Mm-hm.
LANGDALE: So that was discussed at the time. In paragraph 3, there's reference to "further support was needed at the time for your mum", and "that you would follow it up with Kathryn de Berger, Occupational Health and Wellbeing Manager, as necessary." Was that an invitation for her mother to take Occupational Health support?
HODKINSON: No, no, it wasn't. I think I may have described this in the statement with the police as well. Mrs Letby came across is quite timid but also very, very upset and -- and it was a concern about her own well-being and potentially I wanted to check with Kathryn whether there was something that she needed to do in terms of liaising with her -- with Ms Letby's GP, nothing more from a Trust provision to be provided.
LANGDALE: Page 5. A meeting on 31 January in the second to last paragraph. You had advised -- this is Letby presumably: "... have been liaising with a colleague based at Alder Hey to view theatre lists and to have an observational contract. We agreed you would work with Karen to come back with a plan around this next week." Were you expecting Letby to keep you informed of
any arrangements around where she was going?
HODKINSON: Yes.
LANGDALE: You were aware of the Alder Hey visits, weren't you, that was something that was discussed?
HODKINSON: Well, not at the time when they had actually happened. We were aware but she was supposed to be advising us.
LANGDALE: So did you find out later than you would have expected?
HODKINSON: Those that she had been but at that point we stopped it straight away, because it was clear that she was supposed to be advising us.
LANGDALE: There was also a course, I think, that she attended, there was a discussion and you followed up whether there was any clinical involvement or something similar?
HODKINSON: Yes, there was no clinical involvement.
LANGDALE: And then the Trust funded that?
HODKINSON: Yes, that was at I think Glan Clwyd, if I recall.
LANGDALE: That's right. If we go to page 7, this time 14 February, the third paragraph in that middle meeting, you are saying: "It would be helpful if you [that is Letby] could start thinking about what you wanted out of the
mediation and what success looks like as part of this as the mediator may ask you to describe this as part of the process." Did you have that conversation with Letby about what she wanted out of it or not?
HODKINSON: Yes, because I recall that we had clarified with -- I think Kathryn had clarified with the Cheshire and Wirral Partnership Mediation Team as to how the mediation would go and what they would be looking to speak to Letby about as well. So that was one of those points.
LANGDALE: Page 9, please. A meeting on 1 May at the top: "We concluded the meeting [sorry, 1 March] by discussing your plans for transition back to the NNU. You had been working with Karen on dates 3 April and 10 April." That's your understanding of the dates that were being aimed for at that time?
HODKINSON: That's correct.
LANGDALE: We see overleaf at page 10, the penultimate paragraph: "We agreed we would continue working through the plan for you to return and you would continue with your planning meeting with Yvonne, which was taking place on 3 April." Those can come down now, thank you, and if we go to INQ0004402, page 1, this is an Executive Team note. I don't think that date's correct, Ms Hodkinson, Wednesday, 22 March, because the action notes from 29 March have already happened, do you see that, accepted?
HODKINSON: (Nods)
LANGDALE: Your meetings are on Wednesdays so it looks like this may be 5 April, the following one. But look at the box at 2: "LL was due on the unit today, has chest infection, leave next week so defer until post Easter. [She] doesn't want to go back to be pulled off unit again." Can you remember her having a chest infection or something that delayed that 3 April start, it seems to be being referred to there?
HODKINSON: I -- I can't specifically remember the chest infection. I think it -- you know, at this stage maybe it isn't explicit in the notes there, but I think as I mentioned before it was almost like a maintaining a status quo with Letby and, yes, we weren't transparent at that stage but it was because of the information that Dr Jayaram had disclosed to me on 15 March.
LANGDALE: Indeed it looks 5 April 2017, there is
a letter --
HODKINSON: Yes.
LANGDALE: -- sent from you, INQ0003477, page 1. "Alison provided an update ... She advised that work has been ongoing regarding clinical concerns raised. She had met with Karen earlier today ... after further discussions it was felt we should pause your return to the neonatal unit at this time and to review the position after the Easter break." We see at the bottom, Letby asked if it was guidance that she shouldn't return, or a management instruction. Over the page: "... asked if [she] could continue to visit the unit and we advised we would consider whether this was possible. After reflecting on this further and to support your successful transition back to the unit, we would recommend that we again pause with these visits at this time." The Inquiry received some evidence about a tea party or an occasion in anticipation of her coming back on to the ward having a cup of tea with some colleagues on the ward and one of them saying it was very awkward because she seemed very angry and didn't talk to them. Do you remember that being set up, a kind of facilitation visit or something to set the tone?
HODKINSON: Yes, only afterwards.
LANGDALE: So no one spoke to you about that at the time?
HODKINSON: No.
LANGDALE: Then we see another letter of 27 April, INQ0008964, page 7, we see paragraph 4: "You asked if you can return to the unit and both Alison and I explained that this time the Trust decision was your return to the unit has been paused." Then over the page, penultimate paragraph: "Alison explained that as your professional lead she did want you to return to the unit. However, she acknowledged again that this position is very difficult for you and that we will get there. She reiterated that Mr Harvey is facilitating the discussion in relation to the clinical case review and requesting an urgent meeting with the Consultants". So as late as 27 April 2017, Ms Kelly explaining she did want her to return to the unit?
HODKINSON: (Nods)
LANGDALE: Was that your understanding that that's what Ms Kelly thought at 27 April?
HODKINSON: At that stage, it wasn't, that -- I think -- it's fair to say we weren't transparent with Letby at that stage.
LANGDALE: Can we go, please, to INQ0002797, page 4.
Paragraph 5. Meeting between yourself, Kathryn de Berger, Hayley Cooper, Karen Rees, Ms Letby and Alison Kelly. Paragraph 5: "Hayley then added how you had both been informed by two different sources that Dr Brearey was leaving the Trust. Alison and I explained we were not aware ... In addition, Kathryn explained she had some concerns in relation to the completion of the mediation with Dr Jayaram. She advised that as part of mediation the second part of the process required both parties to sign an agreement on agreed ways of working and this was returned to Jane, the mediator." So pressure around them mediating. I think you conceded at the outset you should have made it clear to them and everyone they didn't have to do that?
HODKINSON: Yes.
LANGDALE: They clearly thought they did, didn't they, and Dr Jayaram did and didn't want to? In terms of Dr Brearey was leaving the Trust, that's what Hayley Griffiths said to you. What did you know about that at that time?
HODKINSON: I didn't know anything about that, that was news to me.
LANGDALE: So 4 May, if people were talking about that in the hospital, that was of news to you?
HODKINSON: At that -- at that stage, yes. I mean, I think -- I think it also links back, though, potentially to the pressure I mentioned before that he was feeling, you know on various different bases.
LANGDALE: At a meeting INQ0002797, page 9, so 3 June 2017 this is. Three paragraphs up from the bottom: "You asked what was the reason [so Letby asked what the reason was] behind the decision that you could no longer go to Alder Hey. Alison explained she had instructed Karen to also pull every member of staff from their shadowing sessions at Arrowe Park Hospital and it was not about singling you out." Again was that transparent?
HODKINSON: No. It wasn't. With Letby, no. And I think, you know, that is that's a recognition that potentially we could have been more transparent with her.
LANGDALE: Then over the page, page 10: "Hayley also asked if you could visit the unit but we collectively agreed this may be a police decision as they may want this to take place in a controlled way."
HODKINSON: Apologies, which paragraph is that?
LANGDALE: The penultimate paragraph on page 10.
HODKINSON: Thank you very much.
LANGDALE: You see:
"Hayley also asked if you could visit the unit but we collectively agreed this may be a police decision as they may want this to take place in a controlled way." It was very important that it was understood where she was working --
HODKINSON: Yes.
LANGDALE: -- or not, right?
HODKINSON: Yes.
LANGDALE: Throughout the time in 2017 there was no restriction, there was no interim order preventing her from doing so?
HODKINSON: I am trying to remember whether we had, I don't think at that stage we had a system called TeleTracking in place. We had that at some other point. However, she was being closely monitored within the Risk and Patient Safety team as well and if there were any areas that she -- she was not given any aspect around the neonatal, midwifery, obstetrics areas at all and I recall that they were more pharmacy based.
LANGDALE: I am going to move finally now to the Consultants' position and the support they by comparison did or did not get. If we look, please, at INQ0002884, page 1. This is a letter to Ms Kelly and you and others from Hayley Cooper. "Yesterday, some of her colleagues informed her
that a Consultant, SB, is going around the NNU and informing staff he has seen the external report ..." That's the RCPCH report: "... and, I quote, 'appears to be bragging about it', stating 'the report has cleared all the medical team as expected' and he also informed the staff that had been given the funding for a new Consultant post because of it." When you received that, as head of HR --
HODKINSON: Mm-hm.
LANGDALE: -- what did you do with that? Did you find out who was supposed to have said it or did you just let that sit as a hearsay complaint?
HODKINSON: No, I think it's -- I can't remember exact sequencing but I don't know whether this was linked to one of the conversations that I had with Ian and whether we spoke to Dr Brearey at the time. I can't remember the exact sequencing around it. So it may have been before that, but I -- yes, I -- I can't remember it exactly what else happened then.
LANGDALE: This is 23 November and then we know from Dr Brearey's evidence he receives and has a meeting with Ian Harvey. If we call that up before we look at your note of the meeting INQ0003094, page 1. This is a letter that Mr Harvey sends Dr Brearey
having had you in the room when he met with Dr Brearey. And so you know, if you don't already, Ms Hodkinson, Dr Brearey's evidence on this is: "The only discussion I had with one nurse in respect of the RCPCH report was to mention one aspect that was not contentious, that two new Consultants had to be appointed before the unit went back to the LNU designation." That is what he said; he was talking about the designation and what was required?
HODKINSON: Okay.
LANGDALE: We see in this meeting and from this letter that Dr Brearey is being told that he can't share the final report, but only in a controlled way, by which he means Mr Harvey there should be an order of priority and sharing the information whilst ensuring appropriate support for those with whom it's been shared and he expects a factual response. Do you think that's quite a controlling letter in terms of the issue it was addressing, how a professional Consultant should deal with a report into concerns he has about babies dying?
HODKINSON: I don't know whether controlling -- I would agree with the phrase controlling, but I can see where it says "in a controlled way". I think -- and again this would be from, for Mr Harvey, for Ian, to -- to reference really as well, but I think he was making clear that the information that came through from the RCPCH report was shared sensitively and obviously there are -- you know, there are parents and there are babies at the heart of the report as well and making sure that that information was carefully managed and -- and communicated in the right way.
LANGDALE: So what did you think they knew about that report in December 2016, the parents?
HODKINSON: What did I what, sorry?
LANGDALE: What did you think the parents knew about that report in December 2016?
HODKINSON: I wasn't involved in any of the parent communications, so I couldn't be clear in terms of what happened then.
LANGDALE: So do you know if Mr Harvey was --
HODKINSON: I know he was responsible for -- for that. But I don't know which parents he spoke to and when.
LANGDALE: Shall we look at your notes of the meeting because you were there and you can perhaps tell us how the meeting unfolded?
HODKINSON: I was.
LANGDALE: INQ0015641, page 26. It goes over to page 27 [not found].
If we look at -- sorry I will wait until it comes on screen.
HODKINSON: No problem.
LANGDALE: If we look at your third paragraph about SB. Sorry, second paragraph: SB wasn't entirely explicit?
HODKINSON: Mm-hm.
LANGDALE: Hasn't spoken about any sensitive details, discuss with Ruth, is that Ruth Millward?
HODKINSON: I think it is Ruth Millward yes.
LANGDALE: So Ruth Millward, so the Head of Risk and Patient Safety this conversation is being had with?
HODKINSON: (Nods)
LANGDALE: So discuss with Ruth re draft discussed with Ravi Jayaram, a fellow Consultant. Mentioned to some nursing staff about the ninth Consultant before Level 2 designation. So as he told the Inquiry then that is what he said he had spoken about?
HODKINSON: Mm-hm.
LANGDALE: What does the next -- can you decipher your writing? I am sure it is clear, it's my eyesight probably, tell us what it says --
HODKINSON: No, no it's my writing as well --
LANGDALE: -- the next paragraph?
HODKINSON: -- I will be honest.
"... said no issue with Medical Consultant because of review getting ninth Consultant. Everyone hearing all sorts of things. Be very careful at this stage what you say and report concerns nurses and medical staff. Problem is they are getting head of steam."
LADY JUSTICE THIRLWALL: Gather.
HODKINSON: "Gather head of steam", apologies.
MS LANGDALE: The next bit?
HODKINSON: "Stephen Brearey, if cross line not my intention but not explicit in what discussed two weeks ago." Would you like me to continue?
LANGDALE: Please.
HODKINSON: Okay. "Not completely quiet", possibly.
MS LANGDALE: Not kept.
LADY JUSTICE THIRLWALL: Keep.
HODKINSON: Yes: "... but this was a draft. I am sure I made clear at outset when final versions not received but need to be very careful, a lot of sensitivities, what say and no say it."
LANGDALE: And over the page?
HODKINSON: "Misrepresentation, hopeful find two reports, next two weeks. Conversation with you. This is a note
of conversation re concerns I have."
LANGDALE: What did you think the concerns he did have, he doesn't mention parents and patients, by the way, does he, he says members of staff in terms of concerns? So from being there rather than trying to anticipate it from being there, what were his concerns?
HODKINSON: I think it was, I think Steve was the clinical lead for the unit and I think whether Ian was explicit or not he was wanting Steve to make sure he was leading the messaging around the unit and leading them in the -- in the appropriate way.
LANGDALE: What was the appropriate way to lead that messaging?
HODKINSON: I think it's, you know, trying -- trying to keep to the facts.
LANGDALE: What facts?
HODKINSON: The -- the facts that Ian had described as such. I think, you know, on reflection whenever I join or whenever a member of HR joins a meeting it always can be perceived in potentially the wrong way which is more of a management conversation and -- and to some extent this was -- but I think I was also there to also offer that additional support to Dr Brearey as well and also, you know, to ensure that the points that were, there was no other points that Ian made that were not needed.
LANGDALE: It appears, though, with the timings, doesn't it, that all this arose from the letter I have taken you to from Hayley Griffiths, the complaint effectively at the end of November. She makes a complaint, he's been heard to speak, when in fact it's Ruth Millward who is spoken to, and this is the response?
HODKINSON: (Nods)
LANGDALE: Where Mr Harvey, you are there noting it, all formal, isn't it?
HODKINSON: Mmm.
LANGDALE: We are having to respond to this complaint made by Hayley Griffiths, you don't go and speak to Ruth Millward to see what was said?
HODKINSON: Mm-hm.
LANGDALE: He's hung out to dry, isn't he, here, in your letter telling him in a matter that he's really concerned about as the neonatal lead who he can't discuss and when?
HODKINSON: Mm-hm.
LANGDALE: The contents of a report that they were promised was going to be obtained in two weeks, that was the condition: remember, we will get a report in two weeks?
HODKINSON: (Nods)
LANGDALE: Comes much later, they need to scrutinise it,
but Letby's complaint precipitates this, doesn't it, this meeting, this formality?
HODKINSON: I think -- I think there were other elements that played in and I think there was other information that was coming through. I know that there may not be the documentation associated with it but I seem to recall there were other elements coming through, so it wasn't just about Letby's complaint.
LANGDALE: Let's look at the rest of your note here, it is still on the screen. Is there anything else in there that deals with anything other than his discussion of a draft report with Ruth Millward and mentioning a ninth Consultant?
HODKINSON: Sorry?
LANGDALE: Look at this meeting, so the meeting that you have had, you have been asked by Mr Harvey to note this meeting?
HODKINSON: Yes.
LANGDALE: So is there anything else in these two pages of notes before we take them off the screen that refers to anything else bubbling up?
HODKINSON: I think there is a point around further down the page, the third from bottom: IH, a magnet for all gossip.
LANGDALE: Yes because Dr Brearey says are we able to see
the unredacted version?
HODKINSON: Mm-hm.
LANGDALE: So he wants to see the whole report, to see what's been said by the RCPCH?
HODKINSON: (Nods)
LANGDALE: And is the answer he gets to that --
HODKINSON: I think likely, yes.
LANGDALE: -- magnet for all gossip?
HODKINSON: Yes so, "give heads up, something circulating".
LANGDALE: So what did you understand from that, that they couldn't see the unredacted version or could or what?
HODKINSON: I -- I believe at some stage they were going to see it, yes.
LANGDALE: But not at that point because of concerns of gossip, is that what that reads like?
HODKINSON: I -- I couldn't -- couldn't say exactly why Ian said that. Or what was, you know, the exact meaning around it but I think there was a general concern from Mr Harvey that things were being said in the unit that were starting to gather, as he said in his words on the first page, a head of steam.
LANGDALE: So that can go down now. So we know from the doctors' point of view they
think a review is going to be done within two weeks although at the meeting we saw Mr McCormack pointed out they wouldn't be able to do a review looking at the suspicion of a nurse or an Allitt/Shipman situation. When the report comes, it is redacted, they have not seen it. You know the Executives are shown it first?
HODKINSON: Mm-hm.
LANGDALE: When you sit there now, thinking from an HR perspective, that was not how the Consultants should have been treated, was it?
HODKINSON: I think I said before there were different elements -- there are -- there are reflections around how we could have supported the Consultants differently.
LANGDALE: Then if we look at INQ0005795, page 1, Ian Harvey asks you in preparation for a meeting, he's trying to get the Consultants to do mediation, isn't he, and he wants information from you?
HODKINSON: Mm-hm.
LANGDALE: You set out what's required from the grievance process and you set out there Annette Weatherley's findings.
HODKINSON: Yes.
LANGDALE: "Clearly evident within the witness statements that your movement from the unit was orchestrated by the Consultants with no hard evidence to support this action." This was 25 January 2017.
HODKINSON: (Nods).
LANGDALE: "... behaviours and comments, as witnessed by a number of senior managers and Executive staff, fall far short of what is expected by the Trust and professional standards." Had you read the grievance report and tried to see what the evidence was for any of those comments or behaviours that were suggested?
HODKINSON: Yes, I had, I did read the grievance report afterwards of course.
LANGDALE: There was hearsay and no hard evidence from anyone, was there? There was Eirian Powell's written document sent by Mrs Appleton-Cairns, to Dr Green. But no first hand account from someone saying: I heard them say this ...
HODKINSON: I -- I -- I can't recall specifically but I know that definitely in my notes I have reference to in various different meetings this person had said this or this person had said that.
LANGDALE: What names -- the Inquiry has heard from a lot of people and asked questions about it --
HODKINSON: No, I appreciate -- I appreciate.
LANGDALE: Just doing the best you can, what names of a person do you say heard either of the Consultants Drs Brearey or Jayaram speak in a derogatory way about anyone?
HODKINSON: Certainly I think Eirian Powell described that Dr Brearey had said that or Eirian was concerned about Letby's well-being and Dr Brearey had said: I am not concerned about that. And Eirian had said something along the lines of: what if she goes and takes her own life? And he said: I am not bothered, or words to that effect.
LANGDALE: Mm-hm.
HODKINSON: That is one of those instances.
LANGDALE: So she told you that, did she, or did you see that in writing?
HODKINSON: I either was told that through one of the nursing team -- I can't remember seeing it in writing but I was definitely told that.
LANGDALE: That can go down now, thank you. Another document, please, just to see what you understood about the Coroner at this point. INQ0015641, it's another of your notes, 1 March. Sorry INQ0015641, page 111. Page 0111. I don't think it's that, 0111. Read the note by all means to anchor yourself into the position it was at
the meeting.
HODKINSON: Apologies, which note is it, Ms Langdale?
LANGDALE: 1 March.
HODKINSON: Okay, thank you.
LANGDALE: So at the top you say: "Response from Coroner more optimistic." What do you mean, more optimistic?
HODKINSON: I am, I am not clear on whether that was around point 1 or in relation to something else, apologies, I'm not clear.
LANGDALE: It says: "Allow them to distance from allegations, collectively raise concerns conflating the two together. Not helpful moving forwards. Doesn't mean don't follow through on the grievance. Ian Harvey: separate grievance and concerns. Processes in parallel, grievance and mediation". So did Mr Harvey -- indeed did you -- see them as separate issues, investigation of the concerns about whether she was harming babies, from the grievance process, and whether the Execs had failed to be honest with her?
HODKINSON: They were absolutely two separate things and I think -- I don't know whether this also refers to that the Consultants could raise a grievance as well, should
they feel that that was appropriate.
LANGDALE: Well, the Consultants, Dr Jayaram wanted to find out what had been said at the grievance, didn't he?
HODKINSON: He did.
LANGDALE: So if we can just trace a series of emails to see what happened there. In fact, before we do, can we just pick up with your email to Mr Harvey in relation to Jim McCormack. INQ0006219, page 2.
HODKINSON: Excuse me.
LANGDALE: We see there he's asking for your assistance because Jim McCormack doesn't know what he is supposed to be apologising for so he's finding what that's about and sending an email back and you set out what Eirian Powell's statement had said in the grievance investigation. So it was her written statement of what was said?
HODKINSON: Mm-hm.
LANGDALE: Can you see at the bottom?
HODKINSON: Yes, I do.
LANGDALE: Again, did it concern you sending that to Mr Harvey for which Mr McCormack was required to apologise, did it concern you whether he had ever been asked if he said that, Mr McCormack, in other words, if he had done that?
HODKINSON: I think in one of the meetings he had said he had done that as well, Mr McCormack.
LANGDALE: Was that your understanding?
HODKINSON: Yes.
LANGDALE: Had he ever said that to you?
HODKINSON: No. He hadn't specifically called her a murderer to me.
LANGDALE: He had never been interviewed for the grievance, you see. So it was Ms Powell's comments in her written document that formed the evidence for that but you didn't trace that back, you relied on Ms Powell, did you?
HODKINSON: It wasn't for me to rely on Ms Powell, it was for the grievance obviously to -- that highlighted the issue and in addition I think Ms Letby had already heard that prior to Ms Powell raising it.
LANGDALE: Just to make the position clear for all, at INQ0006432, page 1, Dr Brearey writes to you to make it clear he thinks it's inappropriate to be undertaking the grievance process. And then we know and we will come to the meeting in a moment, Dr Jayaram discusses going to it as well but he also emails at INQ0011870, page 1. It's when he appreciates we see at paragraph 2 that the mediator told him it was an entirely voluntary process and he hadn't appreciated that. If we can go please to INQ0003219, page 1, this is
a meeting with you on 15 March to discuss mediation and follow-up and you explain the process at page 1?
HODKINSON: Mm-hm.
LANGDALE: If we go to page 2, Ravi Jayaram, so looking at the treatment of the Consultants, he: "advised he's read about whistleblowers in other organisations and those who raise concerns and they feel they are being treated by the board like this. The board going down a path and set on a path, making decisions around a member of staff returning and think they may have been misled. [You] advised Ravi Jayaram that Speak Out Safely incorporates whistleblowing and patient safety concerns encouraged for everyone. Concerns treated under the policy. "Dr Jayaram raised concerns regarding losing confidence in Tony Chambers, Ian Harvey and the board. Feel bullied and intimidated to just accept it, the plan. Feel being pushed back on to the Consultants as our fault."
HODKINSON: Mm-hm.
LANGDALE: "Alison Kelly praised her nurses and offered support. Medics had nothing from Tony Chambers and Ian Harvey. All started with Tony Chambers meeting in September re the ninth Consultant. Poor communication. Could have made a complaint then about his behaviour.
Talk about Trust values and behaviours, [Chambers] didn't display those then. "Feel the board want us all to leave. If [Tony Chambers] really wanted this to work, would be thinking about STP and pushing as hard as he can to get the unit back to Level 2. We feel we are not wanted ... Raised he's written his resignation, three of us all actively looking. "Feel I can offer more outside of the organisation to patient safety as not wanted here." It is very troubling, is it not, that Dr Brearey and Dr Jayaram thought they could keep patients in your hospital safe when they weren't working there; safer than when they were working there?
HODKINSON: Mm-hm.
LANGDALE: When you read this, what did you think about how the hospital had failed to treat the Consultants with respect and concern that they had for the babies?
HODKINSON: Obviously this -- this was the first part of the meeting and it really disappointed me that Ravi was feeling like this and I think, you know, I expressed that to him as well. I did state that to the Executive Team the next day in terms of the level of feeling and --
LANGDALE: It is not feeling, is it?
HODKINSON: No, it is --
LANGDALE: It is reality.
HODKINSON: Yes.
LANGDALE: Because there is plenty about they had gut feelings about, suspicions, how they felt, not loved. It is belittling, isn't it, Ms Hodkinson? They had medical concerns, wanted to protect babies at the hospital, and this is how they were treated?
HODKINSON: I know it -- and it's, you know, it's disappointing to read this now and I'm glad that Ravi felt that he could raise that with me. And I think I said earlier and I stand by this as well, I think now on reflection, we should have put more in place for the Consultants. I think if there is an opportunity for me to add on this as well, I think when trying to run a hospital, you know, in a busy medium-sized district general hospital alongside managing this type of case was extremely difficult. I think not only for Tony, but for Mr Harvey, for all of us, and I think potentially we should have put additional support in place for the medics particularly.
LANGDALE: Support from you, from the behaviour --
HODKINSON: Not necessarily.
LANGDALE: From the behaviour you were all exhibiting towards them, they needed protection from the way the Execs were treating their concerns and suspicions and them?
HODKINSON: Apologies, are you meaning me personally or --
LANGDALE: All of you as Execs, collectively, as Execs: Mr Chambers, Mr Harvey, you, Ms Kelly; they needed protection from you?
HODKINSON: I don't think necessarily they needed protection from us but I think we should have put more -- an additional level of support in place to make sure that they felt they were listened to, they were supported and whether that was one of the Divisional Medical Directors who specifically undertook that level of support, whether it was designated occupational health leads, there are multiple ways we could have done it and I think with everything that we were managed, managing, we overlooked that.
LANGDALE: This is why they needed protection, Ms Hodkinson. Can we have a look, please, at INQ0015642, page 48. 11.45 am. 12 May 2017: "RJ/SB plan re management. "GMC [number 1] actions from grievance, mitigation from whistleblowing. "4. Action plan to manage out."
To manage out?
HODKINSON: (Nods)
LANGDALE: That is what Mr Chambers was discussing, wasn't he, managing them out?
HODKINSON: (Nods). Yes. Nothing happened with that though.
LANGDALE: Well --
HODKINSON: Nothing happened with that at all.
LANGDALE: Very difficult to find that note as well, not a criticism of you, you at least noted it. But in all of the material we have, that was clearly a discussion, wasn't it, from him?
HODKINSON: It was a discussion in our one-to-one and nothing happened with that at all. I think in addition as well just -- apologies, I forgot to mention, in that conversation with Dr Jayaram on 15 March he said to me it was the first time he felt he had been listened to. And I can absolutely say I did not take anything forward around Deborah Healey and follow-up call. I expressed to Tony my concern around this, this advice, but nothing happened around this.
LANGDALE: And it's clearly the case you did hear his concerns when he first raised them --
HODKINSON: (Nods)
LANGDALE: -- back in March 2017?
HODKINSON: (Nods)
LANGDALE: You were then dealing with your fellow Execs but you weren't able to do what should have been done with those concerns or even before then, were you? Was that because you liked to please those around you or you were an active participant in the conversations around how do we shut this down, stop the Consultants on their witch hunt and make sure Letby gets back on the unit?
HODKINSON: Okay. Could you just clarify what you are asking me, sorry?
LANGDALE: How actively were you involved in the decision-making around she should stay on unit and come back and there is a witch hunt here with the Consultants' concerns? How active were you in that story?
HODKINSON: I think from that point onwards, I was absolutely not active in anything in relation to that. However, as I said earlier, I think the messaging to Letby was almost like a stalling tactic as such to ensure that we were not, I suppose, raising concerns around us bringing the police in. I think one of the difficulties, it took some time for that -- for a follow-up meeting to happen with Dr Jayaram and Dr Brearey. Obviously Tony and I went to see Ravi and Steve the
next day on 16 March. As you will see in my police statement, there is various different elements where I have then spoken to Ravi a number of times. But the key part that we had agreed at that stage was to then have a meeting with -- apologies, I can't remember the name, I know it's Nim and Julie Maddocks, I can't remember the -- is it the Neonatal Network?
LANGDALE: Mm-hm.
HODKINSON: And that was one of the actions that they wanted. So that took some time to -- to be arranged I think that took place on 27 March and obviously that was the one where there was collective agreement around going to the police and I think, you know, I was concerned that it was taking some time then to go to the police.
LANGDALE: If we just finally, Dr Jayaram's complaints about the grievance. If we go to INQ0068497, page 1, there are a series of INQ numbers here, Mrs Killingback, so I apologise in advance for that, but the first one is the first two emails. You have emailed to say: "I just want to advise you that I have receivded feedback that the joint meeting has gone well ... very much appreciated." He responds: "Cognitive dissonance once more. No, it did not go well. I have never felt as threatened, vulnerable, disappointed and angry in my life." We then see another email chain, INQ0011817, page 4. Pausing before we begin that. Dr Jayaram said in evidence that he felt he was under duress to engage in the mediation, do you appreciate that's how he must felt?
HODKINSON: Sorry, what was that?
LANGDALE: That he felt under duress to engage in mediation?
HODKINSON: As I said earlier, I have reflected a lot around this and obviously I have heard Dr Jayaram's evidence, I can see this in the emails now and I regret putting him through the mediation process, I should have stalled it at that stage on 15 March as soon as he disclosed that information to -- to me. I apologise if he felt under duress and for the -- for the experience he went through.
LANGDALE: Page 5 -- we are looking at page 4. Page 5 of the letter he says: "I felt as if I had been hung out to dry." "Two things that I found disturbing [paragraph 3] were that she has been led to believe (I am unsure whether from the grievance statements or from her
discussions with board members) that I and a colleague orchestrated a campaign to have her removed and a colleague gave an ultimatum to the Trust that if she was not suspended we would call the police, which as we know is clearly not true." At the bottom of the page, he says: "In the light of my concerns, please could you arrange for me to be provided with access to copies of the minutes from board meetings attended by the paediatricians, board meetings where the neonatal issues were discussed by the board and relevant copies of the grievance documentation."
HODKINSON: Yes.
LANGDALE: If we go back to page 4, you respond: "Thank you for your email. As you may be aware, I have spoken with Ian about your email. I understand he has spoken with you. I would be happy to meet with you." Above he says: "I think the concerns I have made were explicit, what's the process for me to be allowed to see the documentation referred to previously?" If we go back to page 3. You say: "Thank you for your email. I will provide a more comprehensive response to your email and your concerns
in due course which will include more detail around your request to access relevant documentation." And higher on 10 April, "any progress," he's having to follow it, saying: "None of my colleagues have any recollection of an ultimatum being given to the Trust by myself and Steve, nor do they feel we orchestrated a campaign." If we go to page 2. You say on 11 April: "Apologies, I am just on leave for a few days I will be back in later this week and be pulling together relevant extracts of the grievance." Email above. He's saying it is over: "... three weeks since I have asked for the documents discussed in my original email. Am I to assume the relevant extracts are still being pulled together, you are completing a fuller response and that Stephen Cross is still looking?" If we go back to page 1, so 11817, page 1, he says: "I am still keen ..." What was the delay, had you spoken to Mr Cross about it?
HODKINSON: Yes.
LADY JUSTICE THIRLWALL: We have not seen that last document, I don't think.
MS LANGDALE: If we go to your response, the
response email, 5 May. INQ0002931, page 1. Take your time. Everyone can read the response.
HODKINSON: Thank you. (Pause)
LANGDALE: We know the Trust subsequently took legal advice on this. You weren't at that meeting with Corinne Slingo, it is Dee Appleton-Cairns, so I don't went to trouble you with that. But you respond with the extracts of interview notes on page 2 and that was it. Dr Jayaram made a Freedom of Information Request, didn't he, and got sent little sections but he gave evidence it was only with the Public Inquiry he saw the whole grievance investigation and how it was put together, both Dr Green's findings and also Annette Weatherley's decision-making?
HODKINSON: Mm-hm.
LANGDALE: When you look at that now, and the way Dr Jayaram and Brearey were criticised within that process and subsequently, do you accept that was entirely wrong?
HODKINSON: The criticism of them?
LANGDALE: Yes, the criticism and the process, it was entirely wrong?
HODKINSON: I think it goes -- I think it goes back to what the grievance was about though. The grievance was not about the care within the unit. The grievance was about how Letby felt that she had not been openly and transparently communicated with by the Trust and also reference to inappropriate comments being made about her. So I think it's slightly different.
LANGDALE: The grievance finding by Ms Weatherley was that the doctors, the Consultants, had not been clear, honest and objective dealing with you, the Executives. That was wrong?
HODKINSON: Mmm (Nods)
LANGDALE: The way they were treated by you as an employer was totally wrong?
HODKINSON: (Nods) Sorry, the question is?
LANGDALE: Do you agree that it's totally wrong?
HODKINSON: I have already said I think we should have put more -- more support in place and as I mentioned earlier, you know, I regret taking Mr -- Dr Jayaram going through the mediation process once I knew on 15 March.
LANGDALE: The Speak Out Safely policy was never followed as it should have been at the beginning, never followed?
HODKINSON: I -- I think I -- because of there being so many reviews the view was that all of those reviews were still being captured under the Speak Out Safely policy and I think I recall at some point early 2017 the formal recording of this was captured within the, as it
probably was called then, the Freedom to Speak Up Group as well.
MS LANGDALE: Those are my questions, Ms Hodkinson.
HODKINSON: Okay, thank you.
Questions by LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: Thank you, Ms Langdale. Just before you start, Mr Baker, I will just ask a question because I meant to ask it earlier and I don't want it to come out of anybody else's time but mine. Early on in your evidence, you were referring to -- you were referred to one of the meetings at which you thought Dr Brearey had said something and you couldn't find it and then we moved on?
HODKINSON: Yes.
LADY JUSTICE THIRLWALL: I think I have found the passage.
HODKINSON: Thank you.
LADY JUSTICE THIRLWALL: So the document is 0015639 and it is at page 60.
HODKINSON: Thank you.
LADY JUSTICE THIRLWALL: Now, I know you have had a hard copy made of a set of notes but I don't know if it's this meeting but let's have a look and see if you can read what's on the screen first --
HODKINSON: Certainly.
LADY JUSTICE THIRLWALL: -- when we get to it. So if you look at the bottom left-hand corner.
HODKINSON: Yes.
LADY JUSTICE THIRLWALL: Is that the bit you were thinking of?
HODKINSON: There was -- there was another point as well.
LADY JUSTICE THIRLWALL: I haven't found that but do you want to read out this bit, if it's one of them, if you read it out?
HODKINSON: In relation to Dr Brearey's point?
LADY JUSTICE THIRLWALL: Yes, I thought that is what we were looking for, yes.
HODKINSON: Of course: "Something nagging me, open about care on the unit. Observations before meeting, Datix incidents, inconsistencies, problems governance." I don't know whether that is "facilitates" or "facilitators: " "First one wonderful and left. Second replaced, less than adequate, replaced by someone, fish out of water."
MS LANGDALE: My Lady I think at page 57 there is also a reference that you may have been referring to before, Ms Hodkinson.
LADY JUSTICE THIRLWALL: Thank you, Ms Langdale.
MS LANGDALE: Bottom right of page 57. That's 58.
HODKINSON: Yes, that is the point.
LADY JUSTICE THIRLWALL: That is the bit you were looking for.
HODKINSON: Yes.
LADY JUSTICE THIRLWALL: Do you want read that?
HODKINSON: I can indeed: "Reviewed every case more than once. Care never perfect. Learnt concern, theme to this individual. All clinicians come back, not going to reassure us that issue comes back but Dr Brearey was saying that the care was never perfect."
LADY JUSTICE THIRLWALL: Thank you very much. Now Mr Baker, it's your turn.
Questions by MR BAKER
MR BAKER: Thank you, Mrs Hodkinson. I ask questions on behalf of the Families of 12 children. You referred to whistleblowing as being a protected disclosure, what do you mean by "protected disclosure"?
HODKINSON: In a sense that if a member of staff raises concerns around patient safety that they will be protected around ramifications of any action taken by the Trust.
BAKER: Why do whistleblowers need to be protected?
HODKINSON: So that they can raise concerns openly, fairly and on a timely basis.
BAKER: It's because there is a problem, isn't there, when it comes to whistleblowing, that whistleblowers are often victimised, bullied, managed out of Trusts?
HODKINSON: There has been -- there has been, it's I think -- you know, certainly from the education I had around it through Henrietta Hughes, who was the National Freedom to Speak Up Guardian at the time through the team. There was various different cases, unfortunately were there were some -- some deaths of former members of staff who have, you know, been whistleblowers, absolutely. So a critical, a critical element.
BAKER: So whistleblowers are vulnerable first of all?
HODKINSON: (Nods)
BAKER: That is why they need the protection to make their disclosures. They are vulnerable to victimisation bullying, managing out of their jobs?
HODKINSON: (Nods)
BAKER: What they do is incredibly important?
HODKINSON: (Nods)
BAKER: Because they are the eyes and ears of the organisation --
HODKINSON: Mmm.
BAKER: -- when it comes to patient safety?
HODKINSON: Mm-hm.
BAKER: So they have to be protected because a culture has to be created whereby whistleblowers feel safe to disclose patient safety issues?
HODKINSON: Yes.
BAKER: There is an expectation when it comes to whistleblowing, provided that the whistleblower acts in good faith --
HODKINSON: Mm-hm.
BAKER: -- then they will be protected?
HODKINSON: Yes.
BAKER: And their concerns will be listened to?
HODKINSON: (Nods)
BAKER: And effectively what's said within the Speak Out Safely policy, and if we go to INQ0003014, and to page 2, now towards the bottom of the page, it says: "By implication this policy is concerned with the possibility that a member or members of staff are not delivering the standard of patient care expected of them. Making a complaint about the way in which a patient or patient group has been treated may therefore place an individual member of staff in the difficult position of choosing between loyalty to a colleague and the patient's best interests." So we can see this dichotomy between the need to protect patient safety and the loyalties that people may
feel to their colleagues?
HODKINSON: Yes.
BAKER: Being a whistleblower is a brave and difficult thing, isn't it?
HODKINSON: Extremely.
BAKER: What it says at the bottom, the final paragraph: "If staff are uncertain about whether or not to express a concern it is normally better for them to voice this rather than to remain silent. Often discussing an issue, normally with the immediate manager, will provide an opportunity to view the matter from a different perspective. From there it can go forward be and be dealt with if necessary. Delay in expressing concern could lead to recurrence and/or make investigations more difficult."
HODKINSON: Mmm.
BAKER: So what you are telling your staff or the hospital staff there is: if you have a concern, voice it?
HODKINSON: Mm-hm.
BAKER: We will listen to you, we will protect you but if you delay voicing this concern, then you risk harm to the patients, so that's what's written on paper for the staff.
If we go back to a snapshot of early 2017. History tells us that the Consultants were right, Lucy Letby is a serial killer?
HODKINSON: Mm-hm.
BAKER: Now, a receptive whistleblowing culture, one that is properly embedded and has proper leadership behind it, would encourage people to come forward with their concerns as soon as possible?
HODKINSON: Yes.
BAKER: Potentially if it existed it could have actually saved lives?
HODKINSON: Mm-hm.
BAKER: If we go to INQ0015642, and to page 48, there we go, you have seen this note before. Now, you were taken to this note and you said nothing happened around this?
HODKINSON: Mm-hm.
BAKER: Well, can I tell you the reason why nothing happened around this. Because on 12 May, there was a meeting between the Executives and the police, so the involvement of the police on 12 May stopped this, it didn't happen because people changed their minds about it.
HODKINSON: May -- may I just raise a point there, though, if that is possible?
BAKER: Yes.
HODKINSON: Apologies, please continue if you were going to.
BAKER: You can raise a point, that's fine?
HODKINSON: Thank you. I think -- again I have thought long and hard about why Tony said this, I think it was linked back to what I described before, you know, Tony -- he was -- he was -- he is or was then a great person to -- to work around, but I think sometimes his frustrations came through and this was one of those moments. But it was in a place to me, I made a note of it, you can all see that there, but nothing did happen with it and I challenged it in the meeting and if it had continued, I would have challenged it then as well.
BAKER: Yes. So let's look at what's being discussed. So plan re management item 1 GMC, so refers the Consultants to the GMC?
HODKINSON: Mm-hm.
BAKER: Item 2, actions from grievance. Now, in February 2017, at a meeting Ian Chambers(sic) Had said to Lucy Letby and her parents that he supported the nurses and that Lucy Letby would be back on the ward, he gave that assurance didn't he?
HODKINSON: (Nods) Mmm mm.
BAKER: Now, item 3, what does this mean: "Mitigation from SOS/whistleblowing"?
HODKINSON: I can't -- I can't recall the specifics around that at the moment as to what -- what exactly, you know, he said or meant by it. I --
BAKER: Does that stand for Speak Out Safely?
HODKINSON: "SOS" is Speak Out Safely, yes.
BAKER: So why would you need to mitigate the Speak Out Safely/whistleblowing policy? Why would that need to be mitigated in this situation?
HODKINSON: I -- I don't know.
BAKER: Well, can you guess?
HODKINSON: Potentially "how do you manage around that", but as I say I -- I think I just took a note of this at that stage and I know that I would have gone back to Tony about it because it really concerned me.
BAKER: So given what's written next: "Action plan: to manage out the two Consultants."
HODKINSON: Yes.
BAKER: Presumably you would have to do that by working around the SOS whistleblowing policy which protects them?
HODKINSON: Potentially.
BAKER: Well, not potentially; you would have to, wouldn't you? Because they would say: we were
whistleblowers, we were doing the brave thing that the policy told us to do, and now you are managing us out?
HODKINSON: I -- it -- as I say, nothing further happened around this.
BAKER: Well, something may have interrupted it. But this was certainly Tony Chambers's plan on the 12 May, wasn't it, because you are writing it down?
HODKINSON: It's what we talked about in our one-to-one.
BAKER: Yes, and this is your note and nowhere within this note does it say that you challenged him about it?
HODKINSON: But I wouldn't necessarily write my own note about what I discussed. If you check any of the notes that I have taken, I don't -- if I do say something it's very quick, if, say, for example, going back to that 30 June meeting, I think I say one point there around Occupational Health, so I quickly make a note of it myself.
BAKER: Okay.
HODKINSON: But we definitely did discuss.
BAKER: So when you have meetings and you make file notes you don't write your own words down. We will come back to that in a moment. Are you saying that you challenged him about this or were you part of this?
HODKINSON: I believe I did, but I -- but again you would need to verify that with Tony. I think I was very
surprised that that was --
BAKER: Yes. Because it's reprehensible, isn't it, if that was the plan, utterly reprehensible?
HODKINSON: It's disappointing.
BAKER: No, no, it's reprehensible. Because these are whistleblowers and a plan is being created to refer them to the GMC and manage them out which is completely the opposite of what should happen to whistleblowers, isn't it?
HODKINSON: (Nods) It, it's -- if those are the words that you choose to use, I suppose from my perspective, it was disappointing.
BAKER: Well, let's look at what you write when you write notes then, please. Can we go to INQ0003219. So this is a note of your meeting with Ravi Jayaram on 15 March 2017. We can see it's effectively a script that has "RJ" for Ravi Jayaram and "SH" for you. So it does actually include your words as well?
HODKINSON: But I think that's very -- this type of meeting is very different to a one-to-one with a manager. This is a meeting where Ravi has at the end of the meeting disclosed very serious concerns to me that I had never heard in those terms before. So and in addition his concerns around the mediation. So I think it's appropriate that I wrote it like this, but for a one-to-one with my line manager, I wouldn't be -- I think if you checked in any of my notes, I wouldn't be saying "I said this, he said that".
BAKER: So a one-to-one with your line manager where your line manager tells you to mitigate the whistleblowing policy and manage two Consultants out of the Trust, that must be a fairly extraordinary meeting to have?
HODKINSON: And I think as you will see from one of the actions that I -- I typically -- what I do when I take an action is I write an A and circle it. And so one of the actions was to get external advice about this which, whilst I can't remember all of the detail of that meeting, because it was eight years ago, or seven years ago, I think that one was now, you know, I -- I felt uncomfortable to give advice on that myself and needed to take external advice on it. Deborah Healey is a partner at DACB and so was the most experienced person I could go to there from an employment perspective.
BAKER: Can I suggest to you that the note is written in the way that it is, the note on 12 May, because you were a willing participant in that conversation; you were there supporting Tony Chambers in that conversation?
HODKINSON: No, not at all. Not at all, categorically not supporting that position.
BAKER: Finally, can I tell you something else that almost happened. You see this process, the defensive grievance, the victimisation of the doctors, delayed Lucy Letby being brought to justice?
HODKINSON: Mmm mm.
BAKER: Do you agree?
HODKINSON: I said earlier that, you know, I was disappointed that they took so long for the police to be instigated from that 15 March meeting.
BAKER: But the diversion into the grievance, into meetings reassuring Letby and her parents that apologies would be given, the victimisation of the doctors all delayed Lucy Letby being brought to justice, didn't it?
HODKINSON: I don't think the grievance did. I think that happened in parallel to the external reviews. All of the external reviews were still taking place while the grievance process happened. So I would -- I would disagree with that point.
BAKER: What Dr Brearey and Dr Jayaram said in -- one of them said in their evidence was that at the time the police were contacted they believed that Lucy Letby was about five days away from coming back to the ward. That's what would have happened, isn't it --
HODKINSON: No.
BAKER: -- had they not taken this step and called the police?
HODKINSON: No, I said earlier that we were maintaining almost like a stalling position, a status quo position with Letby because of the growing likelihood at that stage that the police were going to get involved and I think because of the pressure from the RCN throughout, you know, that year and a bit, they were very clear around how they wanted the doctors to be managed as well. So it was not to add anything further to make this an even more difficult position than it was.
BAKER: Can I take you then finally to INQ0005810 which is a note between -- of the meeting between a number of Executives and Lucy Letby's parents and Lucy Letby. If we turn, please, to page 3. Tony Chambers: "I met with the neonatal nurses. Hayley was there. What you say in the email are two different things. We have made it clear we support the nursing medical team. All support your transition back. We are in a good place. The unit needs time to reflect what the report says. Leadership, trust, professional honour, intact
for yourself. I want it to continue." What Tony Chambers is saying there to Lucy Letby and her parents is that he backs the nurses, we are supporting you coming back, your honour is intact and I want that to continue. Now, that's a reassurance, an assurance to Lucy Letby that she's coming back, isn't it?
HODKINSON: I think he says we made it clear we support the nursing medical team, so both staff groups there. I think some of the wording that Tony said could have been worded differently and I think this is where Tony perhaps tried too hard on some occasions, not just this, other occasions I recall outside of this case where he tried to do the right thing and sometimes it just didn't come out in the right way.
BAKER: I mean his attitude, do you agree, was that Lucy Letby was coming back and if the doctors didn't like it, they would be gone?
HODKINSON: I don't think that was -- I think also in that particular meeting and in the conversations I had had with Mr Letby he was adamant about the feeling for the doctors. He was wanting to refer them to the GMC. I think Tony was trying to manage that in the meeting as well.
MR BAKER: Thank you, my Lady, I have no more questions.
LADY JUSTICE THIRLWALL: Thank you, Mr Baker. Mr Sharghy.
Questions by MR SHARGHY
MR SHARGHY: Mrs Hodkinson, I ask questions on behalf of the remaining Families of the babies that Lucy Letby harmed. Can I start off by asking you that during the period from 2015 to 2017, did you believe that a nurse could deliberately harm babies in their care?
HODKINSON: No, not until that point on 15 March. But you always have to have an open mind that not just a nurse could harm babies, but that any member of staff could do something which either knowingly or unknowingly could affect patients within the Trust and that's -- apologies, that's -- you know, there are other cases that I was dealing with during that time where that happened as well.
SHARGHY: You were asked by Ms Langdale previously in terms of your knowledge regarding the actions of Beverley Allitt and the fact that she did harm babies in her care. Was that not even within your contemplation during that period of 2015 to 2017?
HODKINSON: It absolutely was, it absolutely was, and I think it goes back to a point I made earlier as well
in terms of my deputy Dee Appleton-Cairns who actually raised this with our external legal time DACB on 5 -- gosh, I have forgot my dates now. Is it 5 July 2016?
SHARGHY: July.
HODKINSON: So absolutely, the point was well known at that stage.
SHARGHY: So even though you didn't quite believe that a nurse could deliberately harm babies within that period, you would have known, wouldn't you, in your role that if there were concerns raised about the very thing, that that is quite a serious matter?
HODKINSON: Absolutely.
SHARGHY: In terms of the threshold for action that needs to be pretty low, doesn't it?
HODKINSON: It does, it does.
SHARGHY: Insofar as evidence is concerned, that goes with the threshold, if there is a low threshold you don't need a huge amount of evidence; is that your understanding at the time?
HODKINSON: It was at the time. However, I think it's important to note that having reviewed the Bowers report particularly I think there's an excellent recommendation in there that if I and the rest of my Executive colleagues had had at the time would have been extremely helpful for to have.
SHARGHY: Of course, but at the time --
HODKINSON: Yes.
SHARGHY: -- the level of evidence that's required before action is taken doesn't need to be substantive, does it?
HODKINSON: It -- it -- I think at that time eight years ago it -- there was various, the Thematic Review had happened, certainly from my perspective I was hearing those other elements on 30 June, not consistent around how the care was in the unit, there was multiple different factors playing in. And whilst now I know that we all -- you know, we all know the terrible acts that Letby did, it wasn't clear at the time.
SHARGHY: Do you agree or disagree with the proposition that at that stage, in 2015 to 2017, the evidence concerning deliberate harm did not have to be substantive before action was taken?
HODKINSON: I can only say from the point I was involved, if that's -- because I wasn't involved prior to.
SHARGHY: Which is why I have taken the period 2015 to 2017?
HODKINSON: Yes, yes. The concerns can be raised as -- absolutely.
SHARGHY: Is it also right to say that there was no policy at the time between that period that specifically
required a certain threshold or type of evidence to substantiate action to be taken to protect patients?
HODKINSON: Safeguarding policy.
SHARGHY: Yes, but it didn't require things such as substantive evidence to be provided?
HODKINSON: No, no, but the safeguarding policy I suppose was one -- was an element you could link in to there.
SHARGHY: In your witness statement to this Inquiry, you have used the phrase "no substantive evidence" 13 times --
HODKINSON: Right, okay.
SHARGHY: -- to indicate and justify why no action was taken. Can you help explain why that does appear multiple times in your witness statement when in fact that was not the threshold?
HODKINSON: I hadn't counted how many times I have, I have written it. So, but it -- this was an extremely complex set of circumstances, set of information, the Consultants' concerns, absolutely, I have said, you know, that I heard them and I specifically acted on them when Dr Jayaram spoke to me on 15 March 2017, but I think it was incredibly, incredibly complex.
SHARGHY: Let's go to the discussion and I won't necessarily turn up the notes, unless you wish me to do so, about the discussion you had with Dr Jayaram on 15 March 2017?
HODKINSON: Yes.
SHARGHY: I understood your evidence to the questions that Ms Langdale asked you that you were stunned?
HODKINSON: Mm-hm.
SHARGHY: You were drawn to tears on your way home and you said two further important things which was: it changed our direction, and I understood that to mean the direction of the Executives?
HODKINSON: Mm-hm.
SHARGHY: You also said that at that meeting and the information you were provided regarding these three babies was what made you sure, "definite" I think is the word you used, that this was the time that the police should be brought in, so those are your words?
HODKINSON: (Nods)
SHARGHY: Insofar as actually what happened only 15 days later, and I think it is important to bring this document up, INQ0005340, page 10, this is a meeting that you were present at with Lucy Letby, Karen Rees, Kathryn de Berger and Alison Kelly on 30 March 2017. So 15 days after this shocking revelation is made to you and you are of the clear view the police need to be called?
HODKINSON: Yes.
SHARGHY: Can you explain why, therefore, on the penultimate paragraph up, it says: "We [that must include you] agreed that we would continue working through the plan for your return to the unit and that you would continue with your planning meeting with Yvonne ..." Which would take place a few days later?
HODKINSON: Yes, yes. So the reason -- reason from that as I stated earlier as well is that we were maintaining a status quo with Letby. There -- there was not a plan at that stage for her to go back but I think in terms of communication with her we were stating that there was still that plan to happen. But internally from an Exec perspective that was not going to proceed.
SHARGHY: Can I please take you to your own witness statement, which I hope you have a hard copy of?
HODKINSON: Yes.
SHARGHY: It is on page 131, paragraph 390, where you discuss this very meeting.
HODKINSON: Sorry, 131?
SHARGHY: Page 131, paragraph 390. You say just two-thirds of the way down: "It remained a collective decision [that again must include your part] to work towards Letby's return to the NNU on 3 April 2017. Whilst there were ongoing clinical
concerns and the potential for a police referral, there continued to be no substantive evidence." That is simply not true, is it?
HODKINSON: I accept that now and -- yes, but --
SHARGHY: What?
HODKINSON: I think, sorry.
SHARGHY: I was going to say: this is a witness statement you made to this Inquiry this year?
HODKINSON: Mm-hm.
SHARGHY: Earlier on this year. Why are you making such statements when you must clearly understand and know that it isn't correct?
HODKINSON: I -- I apologise for that.
SHARGHY: You were also taken by both Ms Langdale and Mr Baker to the discussions about managing out the Consultants. Again I'm not going to take you to the note. What I would like you to do, please, is go in your witness statement to pages 116-117, paragraphs 348-349. Thank you, that document can come down. Mr Baker has taken you through in some detail the action plan, that is not what I am going to focus on. I am going to focus on what you say in paragraph 349. You indicate that you didn't agree with the position of managing out the Consultants but what you do go on to
say is that: "There was a growing consensus at the time that the Consultants, namely Dr Brearey and Dr Jayaram, were not acting professionally or working in the best interests of the Trust." Do you agree that all of the concerns, all of the matters that these two doctors raised, were solely in the best interests of their patients, the babies?
HODKINSON: I think they were in -- in the best interests of the patients and babies, yes.
SHARGHY: So who was part of this consensus that was suggesting that they should not have their patients' best interests at heart, but the Trust's best interests?
HODKINSON: I think that --
SHARGHY: By who, I should indicate names, please, if you can?
HODKINSON: Sorry?
SHARGHY: Names --
HODKINSON: Names.
SHARGHY: -- of people within the Executive Team who were part of this growing consensus.
HODKINSON: I think potentially Tony, Ian, Stephen.
SHARGHY: Alison Kelly?
HODKINSON: No, not specifically, no.
SHARGHY: So were they the driving force behind effectively the shutting down of the Consultants and the concerns they were raising?
HODKINSON: They -- there was aspects which they were concerned around how they were.
SHARGHY: Okay. You also go on to say that as far as you were aware there appeared to be resistance to accept and work to implement the recommendations as a result of the RCPCH, again Dr Jayaram and Dr Brearey have given evidence and the Inquiry has heard more evidence around what recommendations were being made. But what evidence were you being told was present that indicated that these two Consultants were not supportive of what the RCPCH had in fact recommended?
HODKINSON: May I have a moment to think about that as well?
SHARGHY: Of course.
HODKINSON: Thank you. (Pause) I think -- and again it's probably best to pick this up with Mr Harvey as well, but I think it was some of the points that were coming through from the recommendations and whether they were appropriate or not. Or -- or that needed to be seen through. I think having, I didn't manage the RCPCH process, I didn't manage the communication with the -- with the
Consultants as part of that but I think there was some reticence around what some of the findings were from the RCPCH review, the Hawdon review, all of those different factors and I think it also goes back to what I said earlier: when you look at it now, the Consultants were being criticised from all angles and we didn't see that, we didn't think -- we didn't think of it in their terms and we should have done.
SHARGHY: Standing back for a moment and looking at the totality of your involvement, your knowledge and your actions at the time, it's hard to steer away from the narrative which was an individual nurse who serious concerns were raised in relation to of deliberate harm, was assisted and being worked back into her position on this unit, despite the serious concerns. Those Consultants who were raising the concerns and should have had the protection under the Speak Out policy and other policies, no doubt, that the Trust had were effectively being ostracised and in the process of being managed out. How did you allow that narrative to arise, to develop, and to continue until the police effectively became involved?
HODKINSON: So I think they weren't effectively being managed out. If you go back to that point around the
12 May and Tony's points there, that no further action took around that and I would -- as I have said in my statement and I challenged it in the meeting, granted I accept I didn't record it, what I said, but I did challenge it and I would have continued to have challenged that view if that was Tony's view on a long-term basis. I think -- you know, on reflection now it's as I said before in terms of the process that -- the feeling that Ravi has had particularly. You know, I was closer to Ravi because of that conversation. For him to have felt like that I accept, you know, is really difficult and that is something that we should have acknowledged.
SHARGHY: Finally, would you accept it was a spectacular failure on the part of the Executive Team to take patient safety seriously and to put it primarily in their thoughts?
HODKINSON: No. I would not accept that at all. I think at the outset of this we took patient safety extremely seriously I mentioned right at the beginning, this is my local hospital, I still go there now for various different things. Members of my family still go there now. I am really passionate about the care that is provided at the Countess of Chester and
I was extremely passionate about it then. We didn't get everything right. But we certainly tried to get everything right.
MR SHARGHY: Thank you, my Lady, thank you.
LADY JUSTICE THIRLWALL: Thank you very much, Mr Sharghy. Mr Kennedy.
Questions by MR KENNEDY
MR KENNEDY: Ms Hodkinson, I have one or two questions on behalf of the Countess of Chester Trust. You have been asked a lot of questions about managing out and I am not going to -- I do not know want to take more time over that, I just want to address two points with you, if I may. We can put back up your note if you need it. But the second part of the note refers to a call with a solicitor at DAC Beachcroft?
HODKINSON: Mm-hm.
KENNEDY: Just so that we are clear, was that the plan at the end of your meeting with Mr Chambers, that you would speak to DAC Beachcroft about the issues that you had addressed, including managing out?
HODKINSON: Yes, it was the plan, I didn't -- I didn't instigate that.
KENNEDY: Understood. Just in terms of the chronological context, so this is 12 May. Were you aware on 12 May when you were having this conversation with Mr Chambers that 10 days before, so 2 May, he had written to Cheshire Police seeking an investigation?
HODKINSON: I -- I can't remember specifically the dates around --
KENNEDY: All right.
HODKINSON: -- that, but I think because particularly Mr Cross and Tony were dealing with most of those -- in fact, all of those aspects.
KENNEDY: All right. Ignoring the date -- sorry, the number of days, were you aware in general terms that at the time of this meeting, there had been a request to Cheshire Police that they investigate --
HODKINSON: I knew that we were going to be speaking to the police, yes, at some stage -- apologies. I knew that we were going to be speaking to the police at some stage and as I said earlier from that meeting on 15 March, it seemed to take a lot of time.
KENNEDY: Indeed. My question to you was whether you were aware that that conversation with the police had taken place before this meeting with Mr Chambers?
HODKINSON: It's difficult to specifically remember now eight years ago but I -- I -- so I couldn't speculate.
KENNEDY: You were a member of the Executive Team, there
had been a lot of toing and froing, hadn't there, about whether or not it was appropriate to refer the case to the police?
HODKINSON: Mm-hm, there was --
KENNEDY: Do you --
HODKINSON: Sorry.
KENNEDY: Do you think that you were aware that that had happened by 12 May?
HODKINSON: I -- I think I probably was.
KENNEDY: Okay.
HODKINSON: And obviously I think Mr Cross was also taking advice from Mr Medland as well at that stage.
KENNEDY: I am not concerned about that. I just want to understand your state of knowledge. I am going to ask you just to look at one, to start by looking at one document, if I may. It's INQ0102280, and just for you to sort out where we are in time, what we are about to look at, this is a note of a meeting that you had with Ian Pace -- sorry, note of a telephone call you had with Ian Pace. We can see it was 25 January.
HODKINSON: Yes.
KENNEDY: I want just to ask you about two passages in it. So the first is at the foot of the second paragraph. So there's a comment, last sentence I think:
"The Trust should explain that it was prepared to listen to any concerns raised in respect of patient safety and Sue [so that is you] agreed that she would be able to support this by the fact that the three investigations [sorry, that doesn't read very well] have been raised and considered and each have concluded that LL [so Letby] has played no part"?
HODKINSON: Mm-hm.
KENNEDY: So that is just one part. Can I just ask you also to comment on a second, which is -- or just take you to a second, which is five lines down that same paragraph, starting on the right-hand side of the page -- sorry, four lines down. If we need to read in for context, please say. Mr Pace records they, so I take that to be the Trust or the Executive Team: "... consider this to be a failure to follow reasonable management instructions, specifically the continued comments they make." Do you see that?
HODKINSON: Yes, I found that now, thank you.
KENNEDY: Okay. I want to deal with, if it can stay up on the screen for a moment, the first of those that we looked at, so the conclusion that Letby had played no part.
Firstly, do you think that is an accurate record of the conversation or that part of the conversation?
HODKINSON: I think on reflection now eight years ago I could have worded it differently -- I could have worded it differently, but I think what I am referring to is that there was multiple different reviews, there was multiple different aspects and each of them were still really unclear.
KENNEDY: Each of them was ...
HODKINSON: Still very unclear, apologies.
KENNEDY: Well, that is how you might word it now. But Mr Pace has recorded you as wording it on the basis that each have concluded that Letby had played no part?
HODKINSON: Yes.
KENNEDY: My question to you is: do you think that is an accurate record of what you told him?
HODKINSON: If that is what he's documented in terms of the telephone note out -- you know, Ian is a very experienced lawyer, that must have been what I said.
KENNEDY: All right. The three investigations, are those the Thematic Review, the RCPCH Review and the Hawdon Review?
HODKINSON: Yes.
KENNEDY: Okay. Just so that we understand the basis for that assertion that they played no part, had you read each of those yourself or were you relying upon a report from somebody else as to the contents of those reports?
HODKINSON: I would have certainly reviewed them but I wouldn't necessarily understand all of the clinical aspects around them, so I would be dependent on clinical colleagues to advise me.
KENNEDY: Okay. So the assertion that Letby played no part, would that have been a conclusion you reached yourself or that you required assistance?
HODKINSON: There was always a collective decision with this.
KENNEDY: All right.
HODKINSON: Always a collective decision.
KENNEDY: So that was the collective decision of the Execs that Letby had played no part derived from those three investigations?
HODKINSON: At that point yes, and I think it's not only the collective decision of the Execs, it was the collective decision of the board because the board were also being advised about all of this information as well.
KENNEDY: Very well. We might just look at that latter question. So in terms of -- in terms of timing, we know that the following day, 26 January, there was a meeting
with the paediatricians at which they were told that the board's conclusion was that Letby should be allowed to return to work?
HODKINSON: Mm-hm.
KENNEDY: Yes?
HODKINSON: Mm-hm.
KENNEDY: That conclusion we trace back to the 10 January, you recall that, that was the meeting at which the outcome of the RCPCH and Dr Hawdon's report was presented to the board by the Exec team?
HODKINSON: Mm-hm.
KENNEDY: Does that ring a bell?
HODKINSON: I believe so, yes.
KENNEDY: Okay. Well, if I help you further. It was the meeting at which you read Letby's statement to the board?
HODKINSON: (Nods)
KENNEDY: It may be helpful just to -- we can anchor it in terms of INQ number, it's 0003237. Do you remember this just while it comes up: the RCPCH report was provided to the board at the beginning of the meeting. I don't think we can derive that from -- particularly from the note but we can see that object that Part 2 is to look at this very issue. Do you remember that the RCPCH report was presented to the board to read at the
meeting; do you recall that?
HODKINSON: I -- I do, yes. It's difficult because obviously it was specifically eight years ago so I don't remember every single meeting in detail.
KENNEDY: No, but this was quite a significant meeting because --
HODKINSON: No, I appreciate that. I remember -- I remember elements of the meeting but I am -- I can only assume you are correct.
KENNEDY: All right. Do you remember whether Dr Hawdon's report was presented to the meeting at all?
HODKINSON: I don't specifically remember now.
KENNEDY: All right. Do you recall that the board received a presentation from Mr Harvey?
HODKINSON: Yes.
KENNEDY: All right. That presentation, if we look through that presentation, was consistent with what we have just looked at with Ian Pace --
HODKINSON: Mm-hm.
KENNEDY: -- that these reviews indicated that Letby played no part?
HODKINSON: Yes.
KENNEDY: Okay. If it is right that the board didn't receive a copy of the RCPCH report aside from to read at
the meeting and if it is right that they didn't receive a copy of the Hawdon report from an HR perspective, so your skill, is that an appropriate way of assisting people to make decisions?
HODKINSON: No, I mean ideally you want to take in the information particularly, you know, as an Executive Director you are going from meeting to meeting, you know, and it's with that nature of information you need time to digest it.
KENNEDY: From the board's perspective, which is being asked to sign off the recommendation from Mr Harvey, it needs to do so on an informed basis, doesn't it?
HODKINSON: I would imagine so, yes.
KENNEDY: You imagine so, or do you know so?
HODKINSON: Yes, apologies.
KENNEDY: To do so on an informed basis it would need to have the material to read at least in advance?
HODKINSON: Yes.
KENNEDY: Okay. And if we look at the same -- similar question in relation to the meeting on 26 January, with the paediatricians, same question. If the paediatricians were being asked to sign up to now a board decision to allow Letby back on to the unit again for them to make an informed decision they would need to see both the RCPCH report and the Hawdon report, wouldn't they?
HODKINSON: I -- I believe so, you would need to double-check with Mr Harvey as to what he -- whether the sequencing of when he shared both elements with them, particularly obviously the RCPCH report because that was earlier.
KENNEDY: Indeed. Well, we have looked at some material in relation to whether Dr Brearey had seen a draft of it earlier, haven't we?
HODKINSON: (Nods)
KENNEDY: Okay. But just in terms of -- in terms of good HR management, for that a decision of that level of importance, it would need to be taken on an informed basis and therefore with people having had sight of the material which is said to ground the decision; correct?
HODKINSON: I would agree, yes.
KENNEDY: Okay. Another matter, just see if we can agree on. The board -- sorry, the Exec team did not have the benefit of subject matter expertise, so they didn't have the benefit of a neonatologist or a paediatrician advising them?
HODKINSON: Correct.
KENNEDY: That was a point that was made to you by Dr Jayaram when you saw him -- excuse me, Jayaram?
HODKINSON: Yes.
KENNEDY: On 15 March?
HODKINSON: And that --
KENNEDY: Sorry, forgive me?
HODKINSON: No, I was just going to say and hence why I think, you know, Ian Harvey was -- I hope I get this right -- an orthopaedic surgeon.
KENNEDY: He was an orthopaedic surgeon?
HODKINSON: So that's another reason why that external advice was sought; to ensure that that additional and appropriate and knowledgeable clinicians who were based in that particular specialty were involved in reviewing the cases.
KENNEDY: Very well. That external support and advice being a reference to the RCPCH --
HODKINSON: RCPCH, Dr Hawdon.
KENNEDY: -- and Dr Hawdon?
HODKINSON: Yes.
KENNEDY: All right, because of course the Thematic Review was in-house?
HODKINSON: Yes, with an element of an external representative, I believe, as well.
KENNEDY: All right. It might be observed that if the conclusion of the Execs was that both reports effectively exonerated
Letby, that they could have benefitted from some independent interpretation of the reports. Do you have any thoughts on that?
HODKINSON: I think as a reflection, without -- yes, I think that is a good recommendation really as well --
KENNEDY: All right.
HODKINSON: -- and I think there are some other aspects that if I do get the opportunity to, I would like to reflect on some other points as well.
KENNEDY: So subject matter expertise is crucial, particularly in matters of this importance?
HODKINSON: Absolutely.
KENNEDY: Okay. I just want to ask you briefly about behaviours. Do you think -- I am trying to, we have had a lot of questions, so I am trying to just steer a way through this. Do you think that the net effect of the way that the grievance was managed was to turn the focus from concerns about how the Exec team had managed Letby to what it was that the paediatricians were alleged to have said about her? Do you think that was a failing of the grievance process?
HODKINSON: I think it was -- it's a complication of the grievance process happening.
KENNEDY: All right.
HODKINSON: But I think the two elements, the reviews of which, as we all know, there were multiple different reviews, plus the grievance process both happened in parallel. I think it goes back to my point that I have made several times, I don't think we considered things fully from the Consultants' perspective, that they were getting information and criticism from all different angles from the grievance, from the reports, how they felt that as an Executive Team they were being heard or listened to by us. I think all of that alongside probably the -- real feeling of angst they had around these patient safety issues, you know, and what that meant to them -- apologies, I will finish in a moment as well -- I think that all impacted on how they were feeling.
KENNEDY: My question was a slightly different one which was whether you think the focus moved from the way that Letby had been managed by the Executive Team to criticisms of the behaviour of the Consultant paediatricians; do you think that happened?
HODKINSON: Mm-hm.
KENNEDY: That was a change of focus?
HODKINSON: Looking at it now, you could say that but I think at the time we tried to deal with both aspects independently.
KENNEDY: Well, they were both part of the grievance, weren't they?
HODKINSON: Well the -- the way in which the Consultants had spoken about Letby was part of the grievance and then how the openness and transparency from the Trust was part of the grievance.
KENNEDY: Okay. So they were both party to the grievance. My question is whether the focus moved from the former so that is how things had been managed by the Trust towards or the Executive Team towards how, what the paediatricians had said?
HODKINSON: Sorry, I'm not sure quite -- apologies.
KENNEDY: All right, I am not going -- I can deal with this in due course, I will leave this and move on. I want to -- I just want to ask you one question if I can or one or two questions about the meeting that you had with Dr Brearey and if we could bring up INQ0003094, which is the letter that Mr Harvey wrote to Dr Brearey at the conclusion of or after your meeting?
HODKINSON: Yes.
KENNEDY: So this is the 24 November meeting. You were asked questions about this letter by Ms Langdale. The proposition that I was going to put to you, and she put something similar, was that this letter was
a little heavy-handed. Would you agree with that?
HODKINSON: Yes, I would now, yes.
KENNEDY: All right. Particularly just help us with the final sentence of the penultimate paragraph, where Mr Harvey writes: to do anything other than this is in direct contravention of an instruction from myself?
HODKINSON: Yes.
KENNEDY: As noted by you, by Sue, by you. So you are the witness to the direct -- sorry, you are witness to the instruction?
HODKINSON: Mm-hm.
KENNEDY: If we understand that phrase "direct contravention of an instruction from myself", so myself being the Medical Director or management, we understand that in employment law perspective, that would be a basis for disciplinary action against an employee, wouldn't it?
HODKINSON: It would be -- you could consider it under the disciplinary policy and -- but it would depend on the level, the level of the -- the I suppose discretion -- the level of the action really as well.
KENNEDY: Very well. I am just going to move on finally, if I may, just to your conversation with Dr Jayaram on 15 March and just ask you to reflect on what you have said in your witness statement about this
being a -- you say in paragraph 443, this is a real turning point. So this is page 149?
HODKINSON: Yes.
KENNEDY: You make various points but you say it is a real turning point. You describe it as a crucial meeting, you mentioned in your oral evidence about it bringing you to tears?
HODKINSON: Mm-hm.
KENNEDY: The serious concern we can see over the page in 444. It resulted in a meeting I think the following day or that day between you and Tony Chambers --
HODKINSON: The following day.
KENNEDY: -- and Dr Jayaram?
HODKINSON: Yes.
KENNEDY: That in turn led to a meeting 10 or 11 days later on 27 March and if we can just bring up that meeting, so that's INQ0004406. So we can see that, thank you, in addition to you, the three protagonists, so you, Mr Chambers, Dr Jayaram, we have now -- in addition we have Ian Harvey and then we have two from the Neonatal Network and we have Dr Brearey.
HODKINSON: Mm-hm.
KENNEDY: We don't see anything about Dr Jayaram's revelations or what he had said in this document, do we?
HODKINSON: I -- I -- I don't recall, no. I mean I think this meeting and I think I state it in my police statement as well, this was one of the -- the core outcomes that came from that, that meeting with Dr Jayaram. When Tony and I then went to see Ravi and Steve the next day, they wanted to have the meeting with the Neonatal Network as well to go through, obviously took some time to get arranged and Ravi's request for me to be there. I would not normally be in that kind of meeting. There would be no need for me normally to be in that kind of meeting because it was a clinically facing meeting.
KENNEDY: But --
HODKINSON: Apologies, if I just continue on this point. Ravi wanted me to be there in case there was any tension for me to mediate as such.
KENNEDY: All right. But from your perspective, the conversation that you had had 12 days earlier was a game changer?
HODKINSON: Yes.
KENNEDY: I just wonder why there is no reference -- if it was a game changer, no reference to it being brought up by Dr Jayaram or by Mr Chambers or indeed by you?
HODKINSON: I think it was a -- I believe some of the information had already been provided to particularly I think Nim, by Dr Jayaram or Dr Brearey, they were going to have some of those conversations as well and so this was about what do we do next? If we are going to call the police what does that mean? If we are going to change further aspects round the unit, what does that mean? And ensuring that the Neonatal Network was part of that conversation as well.
KENNEDY: But there is no reference to this game-changing revelation from Dr Jayaram?
HODKINSON: I think that was -- you know, it was a given as part of -- I wouldn't say there was any stage in which Dr Jayaram couldn't describe that again in that meeting should he chose to -- sorry, should he choose to.
KENNEDY: I appreciate that but there is no reference to you raising it?
HODKINSON: No, but I was more on an observatory mediatory basis.
KENNEDY: Okay.
HODKINSON: This was a group of people I have -- you know, that was I think Julie Maddocks, Nim. I didn't have any connection with them at all.
KENNEDY: Okay. Can we look just briefly at the second page and just see -- what are you, notetaker?
HODKINSON: I took the notes on this as well, yes.
KENNEDY: So we see what amongst others observations Mr Chambers made about calling the police and it's the fourth entry from the bottom of the page where you have written that he says: "If that's where we are then phone the police, you can call the police."
HODKINSON: Mm-hm.
KENNEDY: Presumably directed to Dr Brearey?
HODKINSON: I -- I believe so, or to Dr Jayaram, it could have been either.
KENNEDY: All right, but directed to the paediatricians?
HODKINSON: Yes.
KENNEDY: That effectively: over to you if you want to call the police?
HODKINSON: I think that is the nature. Obviously that was how I have noted it.
KENNEDY: Okay. We know as -- and we can -- we can go to the foot of the -- just briefly if we can, the foot of that entry -- sorry, the foot of that note, where I think it's page 7, Mr Chambers's sign-off is: you need to leave it with us?
HODKINSON: Mm-hm.
KENNEDY: What we know happens thereafter is then a barrister is instructed to look at it, there is
a briefing paper prepared by Ian Harvey, do you recall that?
HODKINSON: Yes, I do.
KENNEDY: All right. There is a rationale document prepared by Mr Cross, the gist of both of those is that it's not thought that a crime had been committed, isn't it?
HODKINSON: Yes, but I think that it was -- it was appropriate to go to the police because I think also around that time, it could have been 18 April, I think I also reached out to Corinne Slingo again, had that conversation there.
KENNEDY: But -- and there is the consequence of those two pieces, those two documents seem to have formed the basis for the instruction of the barrister?
HODKINSON: Yes, but I -- Mr Cross was --
KENNEDY: If you don't know, please do say?
HODKINSON: Stephen Cross was leading that piece.
KENNEDY: All right. But wherever we are from the meeting on 15 March which is -- my words -- a game changer --
HODKINSON: Mm-hm.
KENNEDY: -- the contact with the Cheshire Police is still six weeks away?
HODKINSON: And as I explained before that was
disappointing from a personal perspective.
KENNEDY: All right. Do we take it that perhaps your views of the importance of what Dr Jayaram had said to you were not shared by others on the Exec Team?
HODKINSON: You would have to ask the rest of the Executive Team that -- that question.
MR KENNEDY: All right. Ms Hodkinson, thank you very much. Those are my questions.
LADY JUSTICE THIRLWALL: Thank you, Mr Kennedy.
MS LANGDALE: I am conscious of the time. We have been going two hours.
LADY JUSTICE THIRLWALL: Yes, we had better take a break. We will start again at 10 past 4.
(3.55 pm)
(A short break)
(4.09 pm)
Questions by MS BLACKWELL
LADY JUSTICE THIRLWALL: Ms Blackwell.
MS BLACKWELL: Thank you, my Lady. Mrs Hodkinson, the questioning by Ms Langdale this morning followed themes rather than a strict chronological order and so I want to begin my questioning of you by confirming what your thinking was and when. Is it right that up until 30 June of 2016 you did not know anything about the concerns of the Consultants relating to deliberate harm?
HODKINSON: I think there was reference to something on 27 June.
BLACKWELL: Yes.
HODKINSON: But until that point I had not been involved in any discussion of the detail at all.
BLACKWELL: Now the reason that I alighted upon 30 June was because you have been taken to your notes of that meeting?
HODKINSON: Yes.
BLACKWELL: You were invited to express to the Inquiry what your knowledge was during the course of and by the end of that meeting as to the concerns that had been raised and Ms Langdale identified a comment during that meeting written in your notes by Jim McCormack that there were concerns of a Shipman or an Allitt nature?
HODKINSON: Yes.
BLACKWELL: In answer to her you also raised the prospect of there being clinical care concerns raised at the same meeting and her ladyship also took you to a note from Stephen Brearey --
HODKINSON: Yes.
BLACKWELL: -- in an attempt to assist you.
I am going to ask you to look again at the notes, please, and to invite you to identify certain comments, who made them and what your understanding was about them so that we can get a full reflection of what was being said at that meeting?
HODKINSON: Okay.
BLACKWELL: My Lady, given that Mrs Hodkinson had a little difficulty reading these notes --
LADY JUSTICE THIRLWALL: You have a printed version, have you?
MS BLACKWELL: Well, we have a printed version for her. I'm not sure it has been provided to her. I was awaiting --
LADY JUSTICE THIRLWALL: It was rather last minute but obviously she can have it.
HODKINSON: Thank you.
MS BLACKWELL: The only annotation is the page number at the bottom right-hand corner.
LADY JUSTICE THIRLWALL: Good, thank you.
MS BLACKWELL: Can we also have up, please, the document itself on screen, which is INQ0015639 and if we go to page 54, please. As we are putting that up on the screen, what are your reflections on the tone of this meeting, please, Mrs Hodkinson?
HODKINSON: I think it was a certainly at the outset
almost a collective meeting in terms of members of the Executive Team and -- and the paediatric Consultants as well. I think it was very -- at multiple times during the meeting there was almost like checkpoints to make sure that people were comfortable with the next stages, what we had agreed. If felt a very open meeting.
BLACKWELL: Right, well, with that in mind, let's look please at the right-hand side of page 54 and we can see that there is reference three lines down to what I think is in-depth medical review individual ones. Do you see that?
HODKINSON: Sorry, which?
BLACKWELL: Four lines down?
HODKINSON: Four lines down. From the top -- apologies, I was looking at the bottom: "Indepth medical review, individual cases" Do you want me to continue?
BLACKWELL: Yes please.
HODKINSON: "Independent review. RC Paeds and Child Health. Unit close for model of care, required level of care. Spoken to CQC today, agreed re the informed agreed actions, fair, balanced, proportionate. Did ask some questions. Clinical decision-making, practice, staffing, environmental. RCPCH medical and nursing to be brought in, can do review in August. Two full days.
Immediate feedback and immediate areas of concern. Report two to three weeks. No specific date. Drafting proposal and Terms of Reference. Finalised TOR concerns where ..." I don't know whether that is visit or?
BLACKWELL: Weight?
HODKINSON: "... data who interviewed, all data they require."
BLACKWELL: Which is a reference to the instruction to the RCPCH to prepare their review and ultimately their report?
HODKINSON: Yes.
BLACKWELL: So that was being set out at the beginning of the meeting --
HODKINSON: At the beginning of the meeting.
BLACKWELL: -- as a potential action?
HODKINSON: Yes.
BLACKWELL: Yes. Over the page, please. Now we can see that there is a comment three lines down from the top of the left-hand page attributed to Dr Brearey. What does that say?
HODKINSON: "Good rep", I assume that's shortened reputation, "paeds and obstetrics. Didn't matter of unit. Clinical concerns member of staff. Yes, downgrade to Level 1. Get ..." And I think I have said I have missed out "rid": " ...of intensive cots/HDU cots but not got complete assurance to clinical team without staffing."
BLACKWELL: What did you take him to mean by that because it looks as if he's talking about two different things?
HODKINSON: I think firstly it's, you know, as clinical lead explaining about, you know, the unit had a good reputation.
BLACKWELL: Yes.
HODKINSON: But that, you know, we needed to look at the acuity of the patients --
BLACKWELL: Yes.
HODKINSON: -- that we were supporting.
BLACKWELL: And that was the downgrading of the unit?
HODKINSON: Yes.
BLACKWELL: But also there had to be a reassurance to the clinical team and that couldn't take place without a staffing review?
HODKINSON: Yes.
BLACKWELL: Right, further down the page then there is another comment attributed to Dr Brearey: "Level 1 doesn't specify gestation. Nearest is Macclesfield. 32 weeks. Recommendation we take 34 weeks." Was that him involving himself again with providing
guidance on the unit being --
HODKINSON: Yes, I suppose on the acuity of the patients and the gestation period that we should be taking in for patients as well.
BLACKWELL: On the other side of the page we see the comment by Jim McCormack which you were taken to by Ms Langdale?
HODKINSON: Yes.
BLACKWELL: He concludes that by reference to Beverley Allitt and Shipman being raised. But just above that, in the middle of his comment he says this: "First time about member of staff his last three days"?
HODKINSON: Yes.
BLACKWELL: Do you know what that was a reference to?
HODKINSON: I think whether that was he knew about it over the last three days or this was the concern over the last three days.
BLACKWELL: Of course if we identify the timing of this meeting, 30 June?
HODKINSON: Yes.
BLACKWELL: It was almost a week after [Child O] had died and then [Child P] had died on the following day and then at the bottom of the page there is another comment from Dr V:
"Have to plan carefully, manage better."
HODKINSON: Yes.
BLACKWELL: Then over the page: "Can't provide clear guidelines." Now, that's Jim McCormack again?
HODKINSON: Yes.
BLACKWELL: Then at the bottom of the page again: "Doesn't change ..." What is that?
HODKINSON: "Doesn't change thinking. No less than 27 weeks and six days, approximate gestation 34 weeks, difficulty is sick lady."
BLACKWELL: "Looking after lady"?
HODKINSON: Yes, "looking after lady".
BLACKWELL: Then a comment attributed to Dr Jayaram, "reducing risk"?
HODKINSON: Yes.
BLACKWELL: Was he there agreeing that lowering the level of the unit would lead to a reduction of the risk?
HODKINSON: Yes.
BLACKWELL: All right. Then on the other side of the page, we can see in the middle of the page a comment attributed to Tony Chambers: "Agreed comprehensive review, agreed timescales ..."
HODKINSON: Yes.
BLACKWELL: "... and obstetric service." What do you take that to be?
HODKINSON: That at that stage within the meeting and I think it's also referenced later on in the meeting this was what collectively we had all agreed. So the paediatricians and the Executive Team who were in that meeting as well.
BLACKWELL: Can we turn over the page please to page 57 and on the left-hand side of the page, there is a comment which we know from the previous page is attributed to Tony Chambers, four lines down: "Legitimate concerns re member of staff. Two weeks annual leave from today." Then what? "Looking at every single patient?"
HODKINSON: Yes: "Not snapshot, I have captured, will determine action we take regarding level of action to take. Know request remove from direct patient care duties, during annual leave drill down actions."
BLACKWELL: Right. On the right-hand side of the page at the top of the page, is that Stephen Cross?
HODKINSON: SPC, yes, it is.
BLACKWELL: "Could be anybody."
HODKINSON: "When heard about practices going by clinicians reinforcing open mind."
BLACKWELL: What is that a reference to?
HODKINSON: I think that, you know, that it could actually be anyone, any level of care, any level of issues, anyone who is causing this. There was obviously, you know, multiple concerns and we had to keep an open mind, not just having one member of staff in mind.
BLACKWELL: Then a few lines down tony Chambers again: "know unit under extreme pressure. Review will help."
HODKINSON: With help.
BLACKWELL: "... with help. Acuity of patients change."
HODKINSON: Yes.
BLACKWELL: Right. Bottom of the page, Stephen Brearey again. What does that say?
HODKINSON: So: "Reviewed every case more than once. Care never perfect. Learnt concern theme to this individual. All clinicians come back, going to reassure us that issue comes back."
BLACKWELL: And then over the page, please, to page 58. Stephen Brearey at the top of the left-hand column: "Spoken at depth in May, concerns." That was him confirming that he had raised these concerns in May?
HODKINSON: Yes.
BLACKWELL: "Alison Kelly: circumstantial." Stephen Brearey?
HODKINSON: "Other than HEI (sic) case, present at deaths, let you know about cases this year. Three Triplets just last week. Chances of. Understand don't want to wreck careers."
BLACKWELL: What was that a reference to, whose careers?
HODKINSON: The paediatricians' careers.
BLACKWELL: By raising these concerns?
HODKINSON: Yes.
BLACKWELL: Then a comment from Khalid: "Why not do external review until now."
HODKINSON: Yes.
BLACKWELL: Jim McCormack: "Take stock of what's said. Child health expertise won't look different."
HODKINSON: Yes.
BLACKWELL: Then the reference to air embolism at the bottom the page by Dr Jayaram you have already been taken to?
HODKINSON: Yes.
BLACKWELL: Top of the next page, Tony Chambers: "Direct LL"?
HODKINSON: Yes.
BLACKWELL: What then?
HODKINSON: "Removed".
BLACKWELL: Removed?
HODKINSON: "Unit safe?"
BLACKWELL: Stephen Brearey: "risk removed"?
HODKINSON: Yes.
BLACKWELL: Tony Chambers: "Need to do both ..."
HODKINSON: "... comprehensive review. Proportionate fair help."
BLACKWELL: Jim McCormack says "may help"?
HODKINSON: Yes.
BLACKWELL: If we go over the page to page 59, left-hand column, Jim McCormack: "Team from RCP don't know about ..."
HODKINSON: Member of staff.
BLACKWELL: "... member of staff. "Ian Harvey: increase in mortality, cases highlighted, member of staff."
HODKINSON: "Issues highlighted."
BLACKWELL: Thank you: "... member of staff not finalised Terms of Reference." Then Ian Harvey further down: "Opened up whole can of worms, look at everything, review at some point." Then Jim McCormack further down: "Expertise forensic investigation, decision to evidence police."
LADY JUSTICE THIRLWALL: Involve, I think.
MS BLACKWELL: Involve police. "Difficult decision to make." Tony Chambers: "Explain police". Do you know what that is a reference to?
HODKINSON: So that was around Tony asking Stephen to explain what would happen if the police were involved, Stephen Cross was a former member of the police and it was unusual to have that level of experience in the Executive Team but it was also a benefit during this.
BLACKWELL: Thank you. Over the page to page 60, please. Left-hand column halfway down. What are the comments, please, which have the arrows or the dashes?
HODKINSON: I don't know why I started doing that rather than having the circles there. David Semple: "After two weeks definite decision at that point. "JD: two weeks review and back off leave." Dr Brearey: "Made feeling clear." Khalid: "Apologies for tone. "TC: feels personal ... needs to be safe, kind and effective."
BLACKWELL: Just pause there.
HODKINSON: Yes.
BLACKWELL: Can you remember what Tony Chambers was saying feels personal?
HODKINSON: That this was related to one individual and that we need to -- safe, kind and effective was our phraseology around our core values within the Trust so we need today think about things in a safe kind and effective manner.
BLACKWELL: Then "Jim McCormack on board with plan", is that him expressing his approval?
HODKINSON: Yes.
BLACKWELL: Bottom of the page, and you have been taken to this already, from Dr Brearey: something nagging me?
HODKINSON: Yes. "Open about care on unit. Observations before meeting. Datix incidents. Inconsistencies. Problems. Governance facilitators. First one wonderful and left. Second replaced less than adequate, replaced by someone [and I think I have missed 'who'] is a fish out of
water."
BLACKWELL: That was him complaining about the risk facilitator who had replaced somebody else?
HODKINSON: Yes.
BLACKWELL: Then towards the bottom of the page we are getting to the end of the meeting now, Tony Chambers says anything more?
HODKINSON: Yes.
BLACKWELL: Nothing from Stephen Brearey?
HODKINSON: Yes.
BLACKWELL: He asks Ravi?
HODKINSON: Yes.
BLACKWELL: Dr Jayaram says?
HODKINSON: "Not them and us, Execs versus clinicians. Feeling running high. Safety for babies. Paeds and obstetrics appreciate your support [or appreciate support]. Plan pragmatic way forward. Share discomfort about member of staff. If suspicious ..."
BLACKWELL: Ventilation?
HODKINSON: "... ventilator get checked."
BLACKWELL: Get checked?
HODKINSON: "Not easy with people. Plan going forwards, drill down."
BLACKWELL: Just pausing again. He says that he shares the discomfort about the member of staff and if what,
get the ventilator checked?
HODKINSON: Yes: "If suspicious ventilator get checked."
BLACKWELL: Get checked. So he was suggesting that there might be --
HODKINSON: An equipment issue.
BLACKWELL: Yes. Then Alison Kelly, nothing to add from her?
HODKINSON: Yes.
BLACKWELL: "Appreciate concerns from KR." Then: "Apologies if ..." what, from Stephen Brearey?
HODKINSON: "Apologies if upset you."
BLACKWELL: If upset you and "SH support" and that's you reference?
HODKINSON: Occupational Health.
BLACKWELL: A reference to Occupational Health. Then finally on the right-hand side of this page, the concluding comments, Tony Chambers. "Thank everybody, either collectively or smaller group, get together tomorrow. View of when ..."
HODKINSON: Actioned, yes, unlikely tomorrow.
BLACKWELL: From Mr McCormack?
HODKINSON: "What do we say to our own staff?"
BLACKWELL: Tony Chambers?
HODKINSON: That's being worked through. It was a tough meeting.
BLACKWELL: It was a tough meeting.
HODKINSON: Yes.
BLACKWELL: So is it your belief leaving that meeting that although deliberate harm had been raised, particularly by Mr McCormack --
HODKINSON: Yes.
BLACKWELL: -- that there were other potential problems to do with clinical care and possibly equipment on the ward?
HODKINSON: As I said earlier to the Inquiry, that was my impression coming out of the meeting, it was multiple different factors but of course there was that concern around an individual.
BLACKWELL: Yes, and is it your evidence, Mrs Hodkinson, that by the end the meeting, the atmosphere, the mood was still collegiate?
HODKINSON: Without doubt.
BLACKWELL: Right. Do we note that there was no reference in that meeting at all by Dr Jayaram to the disclosure that he was to make to you in 2017?
HODKINSON: No.
BLACKWELL: No. Thank you. The second matter I would like to ask you about, please, is Letby's redeployment. You have been taken by Ms Langdale to the email sent to you by Karen Rees --
HODKINSON: Yes.
BLACKWELL: -- on that topic and the terms in which she expressed her fervent support of Letby?
HODKINSON: Yes.
BLACKWELL: How did you feel when you read that?
HODKINSON: I think concerned. Karen -- if I -- I may have mentioned it earlier, very credible nurse, very experienced, had nothing, you know, she was -- yes, she was meeting Letby later on on a much regular basis but at that stage it was still early -- early I suppose in that, you know, the considerations and it felt we needed to listen to her as well.
BLACKWELL: Yes. You were also contacted by Kathryn de Berger in similar terms?
HODKINSON: Yes.
BLACKWELL: I would just like to look at her email to you please briefly, it's INQ0002988, and it's page 2, please. Thank you very much. She writes to you in these terms, we will look at the date in a moment: "As you are aware I have been seeing Lucy over the last few months to offer her occupational health support. I have seen her this morning [19 October] and
she has agreed for me to communicate with you following our meeting together. I do have concerns today about Lucy's health and well-being. She's really struggling with the length of time she has been working away from the neonatal unit, the lengthy process and has yet still no date to return for her substantive post. She is feeling isolated from her team and the ongoing uncertainty of the outcome is causing high levels of anxiety. The current situation is having a detrimental effect on her health and well-being and I have concerns for her health, both for the short and longer term. "I would appreciate your advice on how the Trust can expedite an outcome and conclusion so I can help Lucy plan the way forward."
HODKINSON: Yes.
BLACKWELL: Did you take those concerns expressed to you by Ms De Berger seriously?
HODKINSON: Yes, without doubt and I think -- so there was -- there was -- I mentioned earlier the RCN's concerns in relation to her -- you take into account Karen Rees' concerns, you take into account those concerns and I think later as well there were also concerns I had myself around her well-being.
BLACKWELL: Thank you. That can go down, please. The final matter I would like to ask you about are
your reflections and some of these have been touched upon already. But the first is a comment by Professor Bowers, King's Counsel, in his first statement or report and I would just like to ask you for your reflection on his suggestion that he wonders whether management in this case was perhaps discouraged from taking disciplinary action by the fact that the grievance was brought against the quasi disciplinary redeployment. What is your reflection on what Professor Bowers says there?
HODKINSON: I think -- so firstly I think there is lot of very good points in Professor Bowers's report.
BLACKWELL: Yes.
HODKINSON: I think in relation to that particular point, I can absolutely say I would have had no hesitation in taking disciplinary action about -- for a member of staff including Letby as well. Throughout my career I have done that. Sadly I have had had to dismiss -- I have had to listen to appeals, I have had, you know, huge amount of experience both on a patient safety basis and otherwise as well and I would not have had any hesitation in taking that approach if all of the information was very clear.
BLACKWELL: Thank you. At paragraph 11 of Professor Bowers's statement he
talks about his thoughts on a protocol for determining when employers should refer matters to the police. What are your reflections on that?
HODKINSON: I think it's a fantastic suggestion, I really do. I think you may have read in my statement that I sought advice on this not only from DACB -- apologies, but also I sought advice from a peer who was a Director of People at Stockport who had been through a very similar situation.
BLACKWELL: Yes.
HODKINSON: I sought advice from NHS Employers and the Chief Executive of NHS Employers as well and I think it's -- I think to have that guidance not just from a people professional perspective but from an Executive Team and board perspective is essential and it -- it's really unclear. There is no rulebook for dealing with a case like this.
BLACKWELL: In terms of an internal investigation of the sort which was undertaken at an early point in these matters, what are your reflections on the running of a hospital when something like this arises and whether or not there is a need perhaps to consider bringing in another organisation or a designated Executive from another organisation to assist?
HODKINSON: Yes, I think I have added this in my reflections in my statement as well. You know, I -- I recall how much pressure is put under organisations both in my time eight years ago but also now speaking to former colleagues, speaking to peers as well. Particularly there is so much pressure from a regulatory perspective now around the financials that the NHS is managing and I think to manage a case of this gravity alongside managing a Trust and all of the aspects around a Trust you can't do both well. So I think there has, there should be some consideration to how whether it's NHS England, or the system, the local system, the Integrated Care Board --
BLACKWELL: Yes.
HODKINSON: -- or other support, an organisation going through something like this as they would do if an organisation was going through a financial challenge. That happens. People are brought in to support a situation. We would have really benefitted from that as well.
BLACKWELL: Thank you. And finally, at page 467 of your witness statement you tell the Inquiry that a Freedom to Speak Up Guardian was introduced in 2019 through changes to the Trust's policy and prior to your departure from the Trust.
HODKINSON: Yes.
BLACKWELL: But that you note from the third witness statement of Jane Tomkinson that the Trust now actively promotes an open-door policy?
HODKINSON: Yes.
BLACKWELL: What do you say about that, presumably that that is something which is an improvement and should be encouraged?
HODKINSON: Yes, without doubt. I think both Alison Kelly and myself did try to get approval on a number of occasions to have an independent Freedom to Speak Up Guardian towards the end of my career at the Countess after I had been unwell. We obviously recruited one which was fantastic because the Execs are perceived as scary, we have talked about that today and to have ourselves and also a Staff-Side representative as the only people that people could go to was not the ideal situation you need that independence. And I know Jane, I know the vast majority of the Executive Team at the Countess now. I have worked with Jane, I have worked with the vast majority of them as well previously and I am really pleased that they are focusing in that way around Speak Out Safely. Jane is wholeheartedly committed to patient safety and I think that is a really big important step forward.
MS BLACKWELL: Thank you, Mrs Hodkinson. My Lady, those are my questions.
Further questions by MS LANGDALE
MS LANGDALE: Just two questions arising, if I may. Just going back to these documents, INQ0015639, page 58, Mrs Hodkinson. Just to check what you said a note suggested so we understand your evidence. It's Dr Brearey's comment at the top of the left of the page.
LADY JUSTICE THIRLWALL: 15639, or?
MS LANGDALE: 156390058.
LADY JUSTICE THIRLWALL: I think you inserted an extra 8 just to keep us all on our toes.
MS LANGDALE: Did I? Sorry about that. We see at the top to the left: "Other than the HIE case present at deaths." Who's he talking about there, Dr Brearey?
HODKINSON: Apologies.
LANGDALE: Look at the top: "Other than HIE case present at deaths."
HODKINSON: Yes.
LANGDALE: So who's he talking about, who's present at the deaths?
HODKINSON: I -- I believe it was Letby.
LANGDALE: Yes, so Letby present at deaths. "Let you know about cases this year." You have said you weren't included in all of that
but what's he saying in terms of "let you know about cases"? That he has let people know about cases she's present at this year?
HODKINSON: That's either let us know or he has already let us know or he is going to let us know after the meeting.
LANGDALE: Well, he said "let you know" about cases this year: "Three Triplets just last week. Chances of." What does he mean, the chances of, what's he saying?
HODKINSON: I -- it's difficult to I suppose remember the specifics. I have put chances of, but potentially I am speculating here.
LANGDALE: Yes.
HODKINSON: It's chances of this happening again or chances of that individual.
LANGDALE: Then says: understood don't want to wreck careers. Whose career is he talking about there, raising this?
HODKINSON: That I do remember. It was around -- you know the clinicians -- the paediatricians were -- were so proud of the service that they were providing.
LANGDALE: Are you suggesting he was saying that he was worried about wrecking paediatricians' reputations?
HODKINSON: At that stage he was concerned about their own reputations because he didn't want them to be associated with a unit that was having failings of care.
LANGDALE: You have never mentioned that before.
HODKINSON: Sorry?
LANGDALE: You have never mentioned --
HODKINSON: Me?
LANGDALE: Yes, you never mentioned Dr Brearey was worried about the reputation of paediatricians when he spoke at any time about these matters?
HODKINSON: But that was in those notes.
LANGDALE: Because the logic is he is saying she was present at the deaths, I will let you know about cases this year, three Triplets just last Wednesday, chances of. In other words she is on day shifts and they happened day after each other. Understand don't want to wreck career, because the mood later on continues talking about the police and the difficulty. It is Letby he is talking about, isn't it?
HODKINSON: No.
LANGDALE: You think he is talking about the police?
HODKINSON: I remember it was specifically around the concern of the paediatricians as well because they were so proud of the care that they were providing within the
unit.
LANGDALE: Page 60. At the bottom of that page on the "four suspicion", do you see there is a reference there to suspicion, page 60?
HODKINSON: Yes.
LANGDALE: He is talking about equipment, if we go over to the next page. If it is a ventilator, get checked?
HODKINSON: Yes.
LANGDALE: "Not easy with people. Plan going forwards, drill down." He is saying if there is a problem with a piece of faulty equipment you check it to see what it is. When it is a person it is harder, you need to drill down?
HODKINSON: Yes.
LANGDALE: You agree. So he is not complaining about any equipment, he is saying it is harder with a person, you need to get on it?
LADY JUSTICE THIRLWALL: Are we on 61 now?
MS LANGDALE: Look at 61.
LADY JUSTICE THIRLWALL: We have got 60 on the screen.
MS LANGDALE: Look at the top of 61, he is not complaining about equipment, he is saying you need to
get equipment checked if you think it is a problem. Not easy with people, plan going forwards drill down. It is the same principle: if you think there is a problem with a piece of equipment or a person, you need to drill into it.
HODKINSON: Yes, but he's also saying that with a piece of equipment that is easy to manage you can replace it or you can get it fixed. With people, it's not easy.
LANGDALE: So he wasn't saying there was any problem with any equipment. We shouldn't understand your earlier evidence to suggest that you thought he was raising there was faulty equipment in the department. He wasn't suggesting that. He was saying when you got faulty equipment you check it, in this case it is a person, you need to check it?
HODKINSON: But it's harder -- what he is also saying, it is harder when there are challenges around people.
LANGDALE: Yes.
HODKINSON: With equipment, it is: is it working, is it not? Does it need to be fixed, does it not.
MS LANGDALE: Thank you.
LADY JUSTICE THIRLWALL: Ms Blackwell, I'm sorry, I was going to invite you to sit down then I realised you haven't got a chair, sorry about that. Please do.
MS BLACKWELL: Thank you. Further questions by LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: Just one or two matters from me and then you will be able to go. We have looked now a lot of times at 15639 and we have been through it and you have it in hard copy?
HODKINSON: Yes.
LADY JUSTICE THIRLWALL: What you told us earlier was the first thing you thought was: is she on the unit and that we need to protect patients? So you, as I understand it, went to the unit and you had had assurance from the nursing team. So what assurances were you given and from whom, if you can remember?
HODKINSON: I think -- so I went to the unit to go and see for myself --
LADY JUSTICE THIRLWALL: Yes.
HODKINSON: -- as well and very much assurances from the leadership team.
LADY JUSTICE THIRLWALL: So that is Eirian Powell?
HODKINSON: Eirian, Yvonne.
LADY JUSTICE THIRLWALL: What was the nature of their assurances, perhaps it's easier -- what did you say to them and what did they say to you?
HODKINSON: Gosh, I can't specifically remember but I think it was, you know: how is the unit running? You know, what are the pressures on the team? Just to try and get a sense of was it effective, the way in which the unit was running? Because I think at that stage there was multiple different things that were coming in and trying to get another view.
LADY JUSTICE THIRLWALL: Did you say to them: I have just heard some very worrying information in a meeting I have just been at, that is why I have come over here; did you tell them that?
HODKINSON: I can't specifically recall that, whether I did or not, but they knew that -- they knew, certainly Eirian, Yvonne knew the obviously worrying information anyway from the clinicians.
LADY JUSTICE THIRLWALL: And did you ask them specifically about Lucy Letby?
HODKINSON: I think it was probably a more general point to say: Well, how, how is the unit going to run? I'm sure I did speak about Letby as well, but how was the unit going to run, what did we need to do, you know, how did we need to assure around patient safety being maintained as well. So not only around Letby, but also ongoing as well.
LADY JUSTICE THIRLWALL: Because presumably the unit, insofar as they were concerned, had been running safely anyway?
HODKINSON: From their perspective, yes.
LADY JUSTICE THIRLWALL: Yes.
HODKINSON: Although there were, there were pressures in terms of the resources, the staffing.
LADY JUSTICE THIRLWALL: Yes, as one's heard quite a lot about that and in other hospitals as well.
HODKINSON: Yes.
LADY JUSTICE THIRLWALL: But there was nothing particular about that?
HODKINSON: No
LADY JUSTICE THIRLWALL: So there was no particular assurance that you had about Letby or indeed about the unit other than in sort of general terms?
HODKINSON: Yes, there was nothing else that came.
LADY JUSTICE THIRLWALL: You were satisfied, were you, having heard that, that patients were safe?
HODKINSON: Yes. But I think that the key part though was that we were going to daily monitor how the unit was, was -- not performing, that's the wrong word -- was functioning. And that was one of the aspects that was brought in through the Executive Team and we --
LADY JUSTICE THIRLWALL: But she was going to be away, wasn't she, for a fortnight?
HODKINSON: She was.
LADY JUSTICE THIRLWALL: Yes.
HODKINSON: But I think regardless of her being away, we still needed to monitor how the unit was functioning.
LADY JUSTICE THIRLWALL: No, I understand that. Thank you. Can I just ask you this. Once you heard what was said by the clinicians, did you believe them?
HODKINSON: I had no reason not to believe them.
LADY JUSTICE THIRLWALL: So, did you believe them?
HODKINSON: Yes.
LADY JUSTICE THIRLWALL: I will just go now to the grievance process if I may. One of the things, and I don't know if you were aware of this, but one of the things Dr Green told us was that when the two Consultants arrived with their Union representatives he thought that they must be worried about their behaviours and he seemed to have a view that the presence of Union representatives signified something which he then thought about.
HODKINSON: Mmm.
LADY JUSTICE THIRLWALL: Was that something you were aware of?
HODKINSON: I think, as I mentioned earlier, within every grievance or, you know, any, any matter like that a person is able to bring a representative.
LADY JUSTICE THIRLWALL: They are entitled to bring their representative, aren't they?
HODKINSON: Yes, they are.
LADY JUSTICE THIRLWALL: So it's a slightly odd situation where the investigator thinks they must be worried about the way they have been behaving if they bring their representative.
HODKINSON: Yes, they are entitled -- absolutely. They are entitled to bring it.
LADY JUSTICE THIRLWALL: So you are not aware of him having that view?
HODKINSON: I don't see it as an issue that they came.
LADY JUSTICE THIRLWALL: No, no, I'm sure you don't. I'm just asking about the person who was making the determination.
HODKINSON: Yes.
LADY JUSTICE THIRLWALL: You weren't aware of that?
HODKINSON: No, no.
LADY JUSTICE THIRLWALL: Right. Then can I ask you about your meeting, your interview with Chris Green. It's INQ0002879-0026. So it's the sixth box down, where your initials appear.
HODKINSON: Yes.
LADY JUSTICE THIRLWALL: You have been asked a question about whether there had been a relationship and we know that Karen Rees was the source of that suggestion and that that had been eliminated very early on.
HODKINSON: (Nods)
LADY JUSTICE THIRLWALL: And your answer, which you give there, we can read it, what I want to ask you about is the next bit: "We were trying to understand why he might have singled her out in this way. Nothing more" What was the evidence that he was acting dishonestly and singling her out to make these allegations against? Her what were you working on?
HODKINSON: I think that the phrase "singled out", it was because all of the points that Dr Brearey kept saying was that it was around one member of staff. So that was -- that was how I was referencing it.
LADY JUSTICE THIRLWALL: So you were trying to think of a reason other than the fact that he honestly suspected her?
HODKINSON: Yes.
LADY JUSTICE THIRLWALL: So some other reason why he was saying this.
HODKINSON: Yes. Whether it was competence, whether they just had a relationship -- you know, not as in a physical relationship but did they not get on or was there some other reason.
LADY JUSTICE THIRLWALL: Yes, and there wasn't, was
there?
HODKINSON: Not as far as I am aware, no.
LADY JUSTICE THIRLWALL: No. I think that is all I have to ask. I can see, Mrs Hodkinson, you have had a very long day and I can see you are tired. Thank you very much indeed for coming and helping us. We are not going to adjourn now because we have another witness, so if you don't mind if you would just like to leave in your own time, there is no rush.
HODKINSON: Okay. Thank you. Thank you, everyone.
MS LANGDALE: My Lady, may I, while the witness is changing position for the next witness --
LADY JUSTICE THIRLWALL: I think you will need to be closer to the microphone because you are competing with a lot of other noise now. There is something that has to be said which you may want to listen to.
MS LANGDALE: May I update the position for the Executives remaining to give evidence, my Lady. Mr Chambers is anticipated to take the day tomorrow and Mr Harvey will give evidence on Thursday and likely complete by Friday lunchtime, I would have thought.
LADY JUSTICE THIRLWALL: Thank you.
MS LANGDALE: Mr Stephen Cross has assisted the Inquiry with a witness statement and was due to give oral evidence. Due to a serious illness he is no longer fit to give oral evidence. He has been asked as far as he is able to provide the Inquiry with a supplementary statement. If Mr Cross is able to provide this further statement we will adduce that evidence in due course.
LADY JUSTICE THIRLWALL: Thank you very much indeed and that will all be on the transcript.
Witness: Tony Chambers: Former Chief Executive Officer, CoCH
Newspaper article: https://www.cheshire-live.co.uk/news/chester-cheshire-news/chester-hospital-chief-not-expecting-14233721LADY JUSTICE THIRLWALL: Good morning. Yes, Mr De La Poer.
MR DE LA POER: My Lady, our witness today is Mr Chambers. I wonder if he may come forward to the witness box.
LADY JUSTICE THIRLWALL: Yes, come forward, Mr Chambers.
MR ANTONY CHAMBERS (affirmed)
LADY JUSTICE THIRLWALL: Do sit down, yes.
Questions by MR DE LA POER
MR DE LA POER: Please could you give us your full name?
CHAMBERS: Yes, my name is Antony Nigel Chambers.
DE LA POER: Mr Chambers, before we begin, I have been informed that there is something that you would wish to say right at the outset?
CHAMBERS: Yes, thank you. So right at the outset I just want to offer my heartfelt condolences to all the Families whose babies are at the heart of this Inquiry. I can only imagine -- well, I can't imagine the -- the -- the impact this has had on your lives and I am truly sorry for the pain that may have been prolonged by any decisions or actions that
I took in good faith. I am very grateful to have this opportunity to take part, openly and honestly, in this Inquiry and I hope that answers can be arrived at and recommendations made. Thank you.
DE LA POER: Is it correct that you provided to the Inquiry a witness statement dated 13 August 2024?
CHAMBERS: That is correct.
DE LA POER: Is the content of that witness statement true, to the best of your knowledge and belief?
CHAMBERS: I believe it is, yes.
DE LA POER: We'll deal first with your background. Did you begin a career in the NHS sphere as a student nurse in February 1985?
CHAMBERS: I did.
DE LA POER: Did you subsequently qualify and practice as a nurse?
CHAMBERS: I did.
DE LA POER: In 1997, did you undertake a postgraduate diploma in Healthcare Services Management?
CHAMBERS: That's correct.
DE LA POER: After that, did you spend two decades in senior leadership roles, including acting as an Executive Director and as a Chief Executive Officer at various hospitals?
CHAMBERS: That is correct.
DE LA POER: If we just identify some of the appointments in the run-up to joining the Countess of Chester. Were you the Director of Operations at an NHS Trust between 2004 and 2007?
CHAMBERS: Yes, that's correct.
DE LA POER: Were you the Director of Operations, Planning and Performance at an NHS Foundation Trust between 2007 and 2009?
CHAMBERS: That is correct.
DE LA POER: Were you the director of Planning, Performance and Delivery at a health board in Wales during 2012?
CHAMBERS: During 2012?
DE LA POER: During 2012.
CHAMBERS: Yes, yes.
DE LA POER: It was whilst you were in that role, I think in August of 2012, that you were appointed as Chief Executive Officer at the Countess of Chester Foundation Trust, albeit that you didn't start until December 2012?
CHAMBERS: Yes, that's correct.
DE LA POER: Was that your first role as a Chief Executive Officer?
CHAMBERS: It was.
DE LA POER: Before that, had you acted as a Deputy Chief Executive Officer?
CHAMBERS: I think it's fair to say that the role I had in the large health board in South West Wales with -- as the Director of Planning, Performance and Delivery in effect would have been the Deputy Chief Executive, although that didn't have the specific title.
DE LA POER: At the point that you began work as the Chief Executive of the Countess of Chester, did you consider yourself to be adequately qualified and experienced for that role?
CHAMBERS: Yes, I -- I -- I do. I wouldn't have applied otherwise. It was a competitive process that I went through, there were five people that were interviewed and I equipped myself well through that interview and I believe that the Aspiring Chief Executive Development Programme that I completed, and I can't remember the exact years of that, prepared me adequately for the role.
DE LA POER: Now, at the start of your witness statement, you can turn this up if you wish to, or I can just read it to you, it is on the first page, paragraph 3, I will just read it out so everybody knows what we are talking about, you say this: "I wholeheartedly accept that the operation of the Trust's systems failed and that there were opportunities missed to take earlier steps to identify what was happening." Now, I would like to give you an opportunity before we look at the detail of this, Mr Chambers, to identify for us, in light of that very broad and candid statement, what you regard as being your most significant failure?
CHAMBERS: I think it was not a personal failing -- failing. I have reflected long and hard as to why the board was not aware of the unexplained increase in mortality in 2015/2016 and the board was not aware of that until June 2016.
DE LA POER: If I can just stop you there. It is important that you listen to my question and I think you began by indicating that you weren't providing an answer to that question. I'm asking you for what you regard as your most significant failure?
CHAMBERS: So the board wasn't aware of the raise in mortality until 2016 and there were several reasons for that. Some of that was around data, like some of it was the fact that mortality wasn't being discussed and raised through the Women's and Children's Governance Board, wasn't being raised at the divisional board and therefore wasn't being discussed at the board. There I think is some of the failure that our
internal governance systems perhaps were not escalating soon enough, risks and concerns that may have been -- been experienced within -- within the hospital.
DE LA POER: Are you saying that that was a significant personal failure?
CHAMBERS: No, I -- I think as the -- the accountable officer it's my responsibility to -- for the safety and the delivery of safe care within the hospital and clearly, the -- these weren't -- the processes that we had in place weren't being used properly and I think I must take some responsibility for that. But as the Chief Executive of a large hospital, with over 4,000 staff, you are very much reliant upon your people, the five or five different layers of governance that exist in the hospital to do their job.
DE LA POER: Mr Chambers, do you accept that there was any personal failure by you?
CHAMBERS: It's -- it's difficult to say otherwise. My witness statement has -- has acknowledged that.
DE LA POER: So I am giving you an opportunity publicly now to tell what, in light of your candid concession at the start, your biggest personal failing was in your view?
CHAMBERS: It's -- it's really, really difficult to answer that question, Mr De La Poer. There are -- as -- as a Chief Executive, as a board you are very reliant
upon the -- the processes that exist within the hospital that have been put in place that have been assured by independent people that they are robust and good and therefore I suppose, it's -- it's just that is the failure -- that, that we just didn't see it.
DE LA POER: Everything that you have just told us is to point to a system failure. I am asking you and it will be the last time that I give you this opportunity, in such broad terms, after all the reflection you have done, all the opportunity you have had to think about what went wrong and what you did wrong, if anything, last time: what was your most significant personal failure, do you think?
CHAMBERS: The -- the reflections I have had over what is now eight years, one of the -- one of the very enduring examples, if you like, is -- is our ability to have communicated what was a very complex set of messages, with information that was unclear and therefore I do believe that there was in -- in -- on reflection, the communications with the Families could of and should have been better.
DE LA POER: In that sentence before your final one, you used the word "our", not "my". But does it follow from that given the number of opportunities I have given you to answer the question that you are not advancing any
personal failure on your part?
CHAMBERS: No, I --
DE LA POER: Well --
CHAMBERS: Yes, thank you for -- for pulling me up on the language there. No, no I take fully and accept that as the accountable officer for the Trust, I must take some responsibility for that, take responsibility for that.
DE LA POER: We are going to move on. Your first awareness of significant problems on the neonatal unit, you tell us, was on 29 June --
CHAMBERS: That's correct.
DE LA POER: -- is that correct?
CHAMBERS: That's correct.
DE LA POER: Well, let's just see how we got there. It is uncontroversial to say that at some point on the afternoon of 24 June of 2016, so a full five days before you were told, the Director of Nursing, Alison Kelly, was told that the two most senior Consultants in the paediatric unit were concerned that a nurse may have murdered a baby the day before. Should you have been told that on 24 June?
CHAMBERS: If -- if that is the facts of the matter, if that is what Alison has understood to have heard that was said to her clearly and very explicitly articulated in the way that you have just described, then, yes, I am sure I should have been made aware. The, the -- when I put myself back into late June 2016, the only time that I can absolutely say that I was made aware of these matters was on 29 June. I am not clear in my mind who made me aware. I am not clear in my mind was it on 29 June or was it, you know, a day or so sooner. I don't believe I knew about these matters before 29 June because as you have correctly described these are very important, very concerning matters and you can see that the actions that I took from that were very speedy and there were many, many meetings that came after 29 June so my assumption is that I didn't know and should I have known? I don't know where I was, I haven't got my diary, I don't know if I was in the hospital, but I think it's a fair assessment that I perhaps should have been told.
DE LA POER: Dr Brearey invited Mr Harvey and Ms Kelly to a meeting on 27 June of the senior paediatricians for them to explain to those two people what their concerns were. They didn't attend that meeting. Instead, later that afternoon, on the 27th, they met senior nursing managers and a plan was developed as to how to respond to the concerns. That plan included the instruction of the RCPCH to conduct a service review?
CHAMBERS: (Nods)
DE LA POER: Does it follow from your evidence that you were told none of that at the time it was happening?
CHAMBERS: And -- and that's where I think there may be lack of notes or lack of memory of when I was absolutely, when I was absolutely told. I think -- I genuinely feel it's probably inconceivable that we would have got to a point to have instructed the Royal College of Paediatrics and Child Health without me being aware of it.
DE LA POER: We know that first contact with the RCPCH was on 28 June, so the day before you have told us. Does it follow that you think in fact you may have known before Mr Harvey contacted the RCPCH?
CHAMBERS: I -- I can't be sure. I -- I -- I only have absolute memory of the 29th. But the fact that there was actions that were already in train suggests to me that these were the right actions and it suggests to me that I may have been aware but I can't be certain.
DE LA POER: Well, there are two possibilities, either you were aware or you weren't. If you were aware, did you act too slowly to meet the paediatricians because that didn't happen until the evening of the 29th?
CHAMBERS: And that -- that, you know, I know I didn't act slowly so I suppose in -- in my mind what I remember
is -- well, the only thing I really remember is not knowing and then knowing.
DE LA POER: The alternative proposition is that you didn't know, in which case should you have known? It is a simple yes or no?
CHAMBERS: And I think -- I think the answer is that I perhaps should have known because there was key actions that were going on that would be important for me to be aware of. But I don't know whether I was in the Trust, what my diary movements -- had I been in the Trust, I am assuming I would have known, but I -- I -- I don't know what my whereabouts were.
DE LA POER: Would you agree that if you were not told until 29 June, that that is indicative that the matter was not being treated seriously enough?
CHAMBERS: No, I don't think that's -- I don't think that's a fair assessment at all. I mean, if you look at the actions that were being proposed and discussed, these were not trivial actions, these were fairly significant important steps to help us get to a greater insight of what the concerns were and what the nature of that might be.
DE LA POER: So --
CHAMBERS: They were happening very, very fast so I don't think it was a lack of pace.
DE LA POER: Letby worked four days of the week of the 27th?
CHAMBERS: Sorry, can you repeat that?
DE LA POER: Letby worked four days of the week the 27th, the 27th, the 28th, the 29th and 30th. What you are telling us is that it being the case that these two senior Consultants raised with the Director of Nursing that they thought that nurse was murdering babies or may be, that you were not told of that and she continued to go to work. Are you suggesting that that nevertheless suggests that it was being taken seriously enough?
CHAMBERS: All I can say for certain is that I knew on the 29th and from evidence that I have heard that actions were being taken forward in terms of conversations with the Royal College. I was not aware of Letby's name at this point, I was not aware specifically of the nature of any of the concerns.
DE LA POER: It's very important that you just listen to the question that I am asking you. My question was: whether the fact that Letby continued to work and you were unaware of this, despite the allegation that had been raised against her or the suggestion of risk that she posed, that that suggests that it was not being taken seriously enough. You were Chief Executive, you know the threshold for bringing matters to you as the absolute top of the organisation. Do you agree or disagree with the suggestion that if you were not told and she continued to work that indicates that it was not being taken seriously enough?
CHAMBERS: I know that these matters were being taken very seriously. The fact that Letby may have been working those shifts and I -- I genuinely don't know whether that -- that was the case.
DE LA POER: You can take it from me that it is true?
CHAMBERS: Okay, well if that is the position, then I -- I can't answer the question particularly why I wasn't aware.
DE LA POER: Why can you not answer that question? It's a simple question in the sense that it is about how seriously you would expect as Chief Executive Officer concerns to be treated and the threshold for you being notified, particularly if it is about a member of staff posing a risk to babies?
CHAMBERS: And I -- I -- I can't comment on conversations and meetings that I wasn't party to. I can't really comment on how these concerns had been articulated. I can't really comment on -- on whether these concerns were made being made very explicit around,
around Letby's conduct because they were never made explicit to me after the 29th.
DE LA POER: We are going to look at that now, I have dealt with that part of it, so let us look at the decision to call the police and how that was addressed. Dr Saladi -- I don't expect we will need to bring this up -- sent an email early on the morning of the 29th setting out a line of reasoning as to why he believed the police should be called, the Inquiry has already heard that Mr Harvey responded to that internally to the Executive Team, you are not on copy, but Alison Kelly was, that he thought that the police should be contacted. Ms Kelly replied she agreed. That was the resting position before lunchtime on the 29th. You had a meeting with the Consultants on the evening of the 29 June; is that right?
CHAMBERS: That is correct, yes.
DE LA POER: Let's bring up the note. INQ0003371. It's timed at 5.10. We have looked at it before but we are actually going to run through. It begins -- and at the moment I am just asking you to confirm the content of this note and then I will ask you a question about it. We can see near the top that Dr Brearey is talking about postmortem reports, some, but not all, inconclusive. Some not satisfactory giving answers. He goes on to say they were unexplained collapses and conceding that maybe they should have been Datixed. He goes on to say that, if we look down two-thirds. "Met in July 2015, three cases common theme was nurse. Discussed it at Thematic with Liverpool and in May 2016." Then Dr Jayaram says: "Entirely subjective. Staff member almost always nurse in charge. Babies were stable and then deteriorated. Why always this nurse? Babies were unwell but getting better. Babies not getting oxygen then crash. Babies did not respond as they should." Dr Brearey: "Disturbing thing. Twin survived and got better in Arrowe Park. Babies coming back to Countess of Chester. Babies deteriorate, nurse 7 out of 10 between 12 noon and 4 am." I suspect that's supposed to be 12 midnight. Then something that is not difficult to read but which might mean something along the lines of "since change none" or something like that, we can't discern it.
LADY JUSTICE THIRLWALL: I think it is 7 out of 9, isn't it?
MR DE LA POER: Forgive me?
LADY JUSTICE THIRLWALL: I think it is 7 out of 9 or is it a 10?
MR DE LA POER: It is the text which is half cut off, my Lady.
LADY JUSTICE THIRLWALL: No, don't worry, we can follow.
MR DE LA POER: Then over the page, page 2, we have Dr Jayaram raising: "Air embolism. Unquestionably got something at the Countess that they considered equipment, they had considered clinical matters." And then Dr Saladi adds: "Preterm babies. Two steps forward, one back. Don't suddenly deteriorate. These babies are relatively stable. Sudden deteriorate and collapse." So we get to that point. Now, what you have just been given, do you agree, is the expert opinion of three senior Consultants about various aspects of the presentation of these babies who died; do you agree?
CHAMBERS: This was the first time I was made aware of these matters. These were very shocking things to hear.
DE LA POER: I understand that. Do --
CHAMBERS: And -- and but the context of this is really important. These were very, very shocking things to hear. I listened and heard their concerns and, yes, you are right, these were shocking things to hear.
DE LA POER: No. My question was whether this was an expert opinion being given to you by three senior Consultants about the presentation of the babies who died and their expectations? Expert opinion; that's the centre of my question. Do you agree that is what you were being given?
CHAMBERS: We were being -- they were sharing with us their concerns, yes.
DE LA POER: Was it --
CHAMBERS: And they were paediatricians.
DE LA POER: Was it an expert opinion?
CHAMBERS: I think in the -- in sort of comparison to me, absolutely. I am a layperson in the context of this so these were concerns that were being relayed to us by the doctors in our unit.
DE LA POER: And experts compared to anybody else present at the meeting?
CHAMBERS: Certainly, yes.
DE LA POER: Yes. So I think we have got there. This was an expert opinion, do you agree?
CHAMBERS: Yes.
DE LA POER: There was no contrary expert opinion to suggest that anything that they had said was wrong?
CHAMBERS: What we had was the facts as they saw them. There were -- there was -- so that, that's what we had is what was written.
DE LA POER: Again focusing on my question. Was there any contrary expert opinion to suggest that anything that they were saying from their expert perspective was wrong?
CHAMBERS: Well, there was, there was just -- it was their opinion. There was no other contrary opinion being proposed -- proposition being proposed.
DE LA POER: So there was no rational basis for you to think that anything they were saying that was within their expertise was wrong; do you agree?
CHAMBERS: I thought I agree and I have always felt that the concerns that they were raising were always based on their honest belief of their concerns as they -- as they understood them to be.
DE LA POER: Well, not just honest belief. But expert knowledge, experience; do you agree?
CHAMBERS: This was the first meeting on the 29 June, hearing these really challenging matters. I -- I heard what they had to say. I needed to think and reflect on what else could be -- could be going on here.
DE LA POER: Do you have a difficulty accepting that they were there speaking as experts --
CHAMBERS: No.
DE LA POER: -- about matters?
CHAMBERS: Absolutely not at all.
DE LA POER: So they came to you with those concerns --
CHAMBERS: Yes.
DE LA POER: -- looking for leadership, do you agree?
CHAMBERS: I think that is exactly right.
DE LA POER: Do you agree that they set out their expert view of the problem in clear terms?
CHAMBERS: These notes here appear to capture I think what was said in the meeting. I can't remember all of the detail that was said but they -- as it's laid out here, they seem to be fairly clear.
DE LA POER: Do you agree that there was a rational basis based on their expert assessment of the situation for them to be suspicious that serious crimes had taken place?
CHAMBERS: It -- I think it's -- it's really difficult to -- to answer that question. There may be more in this meeting as we go through the meeting note that adds more context that is not being described here. What -- what's being presented is the initial overview. What would be helpful is if you could remind us as to what the -- the ongoing discussion that happened on that meeting in the 29th.
DE LA POER: We are looking at this part of the meeting. Do you agree or disagree that there was a rational basis for them to be suspicious that serious crimes had been committed?
CHAMBERS: Based on what was being presented there, I had no reason to believe that there was no rational basis for what they were saying. But what I do know from many -- from my experience across the NHS is that we wouldn't jump to criminality or as a causal factor. We would begin to -- we would want to explore, you know, a broader -- broader set of answers to those very difficult questions.
DE LA POER: The first thing is there was no suggestion that these doctors had jumped to criminality, was there? This was the product of a long period of time, thought and multiple different aspects of the situation that they were presented with; do you agree?
CHAMBERS: I -- I don't know how, what discussions they had had to arrive at these -- at this position.
DE LA POER: You know --
CHAMBERS: I suspect that this will have been something that will have developed in their mind over a period of time and this was the first time that this was being presented to me.
DE LA POER: You know that they had looked at equipment, you know that they had looked at clinical matters, we can see that on the page, they had told you that they had conducted a number of other investigations to exclude ordinary explanations within the NHS, didn't they?
CHAMBERS: Well, as you can see in the note there were -- postmortems had been completed. There may have been a lack of agreement with the outcomes of those postmortems but they had been completed. So it wasn't clear.
DE LA POER: We can then see "SPC outline" and immediately after that, the entry is I think it should read why didn't we call the police as opposed to why did we because by this stage nobody has. What did Mr Cross say, please?
CHAMBERS: In the outline?
DE LA POER: Yes.
CHAMBERS: I -- I have no -- no memory.
DE LA POER: Bearing in mind the entry afterwards refers to the police, was he giving his view, which we know he did at some point about the police and what would happen if they were contacted?
CHAMBERS: I -- I -- I remember Mr Cross offering his experience as an ex-police officer as to what the nature of a police investigation would look like. I do not
believe that that was at this meeting. So I don't know what the SPC outline refers to.
DE LA POER: As we are on the topic, just tell us in summary please what did Mr Cross say about what he thought would happen if the police were contacted?
CHAMBERS: He -- he described very -- at a very high level that it was potential that the unit could be treated as a crime scene, it could be very disruptive and that people would be interviewed and investigated. But there was nothing that he said that would have persuaded me that if the decision was to go to the police, we would have gone to the police. So if -- if the assumption is that he was somehow trying to provide a reason not to, I don't think that's -- I don't think that's correct.
DE LA POER: Was Mr Cross's description of what would happen when the police were called in fact borne out when the police were contacted?
CHAMBERS: No, because it was some time later. I think perhaps Stephen's experience as a police constable were probably more grounded in a period of time when police investigations have moved on.
DE LA POER: Dr Jayaram has given evidence that when he raised concerns of deliberate harm, you said: I can see how that would be a convenient explanation for you but
there must be something else. Did you say that?
CHAMBERS: Where -- where did I say that?
DE LA POER: That is Dr Jayaram's evidence?
CHAMBERS: Right. Ah, okay. I -- I don't remember ever saying that.
DE LA POER: Well, do you think that's something that you might have said?
CHAMBERS: I really don't know. It's -- but I don't remember ever saying it.
DE LA POER: Dr Brearey has given evidence that he formed the impression that you thought the concerns they were raising was to hide the doctors' failings. Was that your view?
CHAMBERS: No, absolutely not.
DE LA POER: We can see four lines down after you have said "Can we explore more before the police?", Dr Brearey's immediate response as recorded here was "Can we move member of staff?" Do you see that?
CHAMBERS: Yes, yes.
DE LA POER: Do you remember him saying that?
CHAMBERS: I -- I remember a discussion to that effect. I don't remember if it was Ravi Jayaram.
DE LA POER: And 00
LADY JUSTICE THIRLWALL: It was Dr Brearey.
MR DE LA POER: Dr Brearey.
CHAMBERS: Right, okay, but I don't remember specifically.
DE LA POER: Steve B. If we go over the page, we can see how that issue was resolved. One-third of the way down: "Nurse cannot be excluded." Now, whether something could or could not happen was a matter for the Executives, wasn't it?
CHAMBERS: That's correct. Yes.
DE LA POER: So that's not the doctors speaking. That is either you or one of the other Executives asserting that the nurse could not be excluded; do you agree?
CHAMBERS: It's just a note that says "nurse cannot be excluded". It doesn't -- I don't really know what the discussion that may have led to that note but if we were to exclude any member of staff we would look to try and find some grounds to do that.
DE LA POER: Just look at the language that's used. I am suggesting that that is something that was said by one of the Executives as opposed to one of the doctors and I think you have agreed that it --
CHAMBERS: I -- I suspect that's correct, yes.
DE LA POER: Yes. Letby was rostered to work the next day and did work the next day. Should you have taken steps to ensure that she didn't?
CHAMBERS: So can you -- can we just go back to the first page of this note, please?
DE LA POER: By all means.
CHAMBERS: Can -- can we see where there was a discussion around the association of a nurse on duty. Can you just remind me where that was?
DE LA POER: I think the first page is entirely -- we have run through almost every line of it is -- what the doctors told you, so it will be on the second page, if anywhere.
CHAMBERS: Okay.
DE LA POER: So we need to go to the second page. We have looked at some of this already, the first half is the doctors telling you more, there is then the discussion about police being delayed. Dr Brearey: "Can we move member of staff?" You saying you [inaudible] "Babies transferred and then deteriorated", which suggests it is more serious than you originally thought; do you agree?
CHAMBERS: Potentially, yes.
DE LA POER: So there you are.
CHAMBERS: Yes. So at the bottom of that page there you
can say TC -- we can't: "Issues we cannot explain, is this suspicious? Is it criminal? Or are we missing something?" So there was a discussion around that. There's a causal link to one nurse. But also mentions of other members of staff.
DE LA POER: Let's just pause there. Dr Harkness could not be the explanation for the deaths --
CHAMBERS: No, no, I agree.
DE LA POER: -- of [Child O] and P so that was not a relevant consideration, was it?
CHAMBERS: Yes, no, I agree. But I suppose what I was hearing was that there were concerns being raised, there was some hypothesis around what those causes of harm might be and there was a suggestion that there was a member of staff who was on duty more times than another member of staff. I -- I think it -- so that's what I was hearing.
DE LA POER: So the only doubt being cast upon the doctors' rational, as you have told us, suspicion was you raising the possibility that they might be wrong without knowing how they might be wrong?
CHAMBERS: No, it was me raising: are we missing something?
DE LA POER: Yes, that they might be wrong without knowing
how they might be wrong?
CHAMBERS: Yes, I suppose, but I am asking the question: are we missing something?
DE LA POER: Yes. And so the position is: there is no basis to think that they are wrong, you don't know whether they are right?
CHAMBERS: That's -- that's correct.
DE LA POER: That their concern, their suspicion, is rational and based upon an uncontradicted expert opinion and we get to the end of the meeting after it's been raised with you that there is a concern that that nurse needs to be excluded and the management has said: she can't be. Is that a fair assessment of that meeting?
CHAMBERS: I don't recall why the note says the nurse cannot be excluded. I can only assume that there had been a discussion that isn't noted and that a rationale for excluding her hadn't been arrived at and we needed to establish a rationale before doing that.
DE LA POER: Let me help you with that. It was being suggested that a member of staff may have murdered babies.
CHAMBERS: But what you are --
DE LA POER: That -- if I may? And that that therefore, would you agree, is
a safeguarding concern?
CHAMBERS: It's a significant concern, safety concern.
DE LA POER: Yes, so --
CHAMBERS: The -- what is not being -- what is not coming out through these minutes -- these notes, not minutes -- bearing in mind these are the notes of one individual, so we have to accept there may be an incomplete record. But what isn't being brought out here is discussions that I am now aware of and perhaps was aware at the time because it was discussed in the meeting, was the, if you like, the -- what you are presenting is a very emphatic description of harm. I -- and a subjective link to one individual. What I know had been discussed in previous meetings, maybe the meeting on the 27th, the outpull of that meeting may have been brought into this but not noted is that there was very objective support and rebuttal to the proposition that this one nurse was deliberately causing harm.
DE LA POER: The rebuttal was that she was a good, well-regarded nurse, which is I am sure you would agree not a rebuttal to whether she is covertly deliberately harming babies?
CHAMBERS: There was a very strong level of support for this individual. You are right, it was, you know, it -- that in itself could, was not any way describing around any conduct she may have been having around deliberate harm. But what we -- what was being said here was that there was just a circumstantial causal link. So you know, we -- the nurse cannot be excluded is noted here. But let's -- let's remember -- remind ourselves of what actually happened. She was moved.
DE LA POER: Let's remind ourselves what happened, Mr Chambers. She went to work on the 30th. Do you agree?
CHAMBERS: I -- I don't know if that is the case.
DE LA POER: That is the case. Do you agree that as a result of the decision that she could not be excluded that patients were exposed to a risk of harm the following day?
CHAMBERS: If that's in effect what happened --
DE LA POER: That is.
CHAMBERS: That she went on to -- you can see this note -- I mean, I suppose one of the omissions here was actually trying to establish what the circumstances -- you know, what the actual work plan for this nurse was and I was not aware that she would have been working that night.
DE LA POER: Why is there no discussion about that?
CHAMBERS: I -- I -- I -- I don't know. I don't know.
DE LA POER: Is that because?
CHAMBERS: I think all I can say is that from -- from my own personal experience -- memory of this, these were very shocking things that I had -- had heard for the first time. I was trying to process matters and thoughts in my own mind and perhaps in terms of structuring my thoughts that was something that I didn't seek assurance from. However, it wouldn't have been unreasonable to me if -- perhaps wrongly assumed that those matters would were being dealt with by others.
DE LA POER: If in doubt, patient safety comes first; is that fair?
CHAMBERS: Yes -- no, that's right.
DE LA POER: And that is not what happened here, is it?
CHAMBERS: I -- I -- this -- this was just a collection of summary notes. This wasn't a plan. The nurse cannot be excluded. I don't know why the nurse couldn't be excluded on that time. I was not aware that she was potentially being rostered on to shift and maybe I should have enquired. But what I -- what I know is that in my mind right from the get-go of all of this, the most important consideration for me was the safety of the unit.
DE LA POER: Where do we see that there?
CHAMBERS: Yes.
DE LA POER: Show me the note that indicates that that was the most important consideration?
CHAMBERS: And I -- as I said these are Stephen's notes, these were thoughts that were existing in my mind, maybe I at this time didn't articulate it, but I know the very next day when we had our further meetings, that was very clear.
DE LA POER: So you believed that the most important consideration was something that was not noted?
CHAMBERS: It's implicit, I suppose. But this was -- you know, the discussions that were going on about: do we call the police? Do we commission reviews? Do we shut the unit? Implicit in all of that is safety.
LADY JUSTICE THIRLWALL: The word "safety paramount" does appear; those words do appear.
CHAMBERS: Say again, sorry?
LADY JUSTICE THIRLWALL: The words "safety paramount" do appear above "unit closed tonight".
CHAMBERS: Thank you.
MR DE LA POER: "Safety paramount. Nurse cannot be excluded."
CHAMBERS: Safety paramount, the unit is closed tonight nurse cannot be excluded. I can't explain that statement. I -- wrongly I had assumed that the rotas
and the roster patterns would have been explored and even today I don't know whether Nurse Letby worked on the unit that night. You are telling me she did.
DE LA POER: The rota did. She exchanged messages with Dr U talking about it?
CHAMBERS: Right.
DE LA POER: We are going to move on to the 30th and to just look at a particular facet of the meeting INQ0003362 and we will go to page 4. There is one particular aspect and a number of things were said at this meeting but I just wish to look at one part of it. Halfway down the page, you say and by this stage the fact that it's going to be a Level 1 unit I am sure you can agree was determined at the previous meeting. You then go on to say: "... nurse removed, would death stop?" To which Dr Brearey says: "Risk would be reduced."
LADY JUSTICE THIRLWALL: I think we agreed it's "if nurse reviewed".
MR DE LA POER: Thank you, my Lady: "If nurse removed, would death stop? Risk would be reduced." Then a number of points attributed to you: "Test out hypothesis with her being off." Then: "Exclude or inconclusive. Police." Then if we go over to page 5, we can see that this theme about at the meeting the hypothesis is repeated: "Test hypothesis, yes, no, police." So do you agree that at this meeting on the 30th, what was being said in the context of the unit being downgraded, which is what was discussed the previous day, that it would be -- the unit would be looked at without the nurse on it and an assessment would be made about whether or not harm had stopped in light of her being moved off, that is the hypothesis that you are suggesting is being tested; is that correct?
CHAMBERS: Potentially, or -- or was it that we -- we were aware -- excuse me -- that that the nurse was now going on two weeks's leave, which may have been the -- the opportunity to test a test hypothesis. But in my mind -- in my mind, the nurse was going to be removed. I was adamant in my mind. But what I wanted to do and was very -- it was very important to do was to not force my position into the meeting because as Chief Executive, once you make a statement about -- it -- that then becomes a decision. And I was very clear that that we would test all thoughts around how to manage these matters but in my
mind, Letby was going to be removed.
DE LA POER: Yes, and the simple point is this, your word being a decision, that you said: we are going to test the hypothesis of the nurse being off and see what conclusions we should draw in light of what then happens; that is what you are saying at this meeting, aren't you?
CHAMBERS: No, no, there was more to the hypothesis, wasn't there? The -- the hypothesis, if that's what it was, was the removal of the potential -- well, reduce the risk by removing the nurse to the point that Dr Brearey made. But he didn't say it would remove all the risk so we also will reclassify the unit so it's no longer taking the sicker babies. The criteria for admission to the unit would be significantly different.
DE LA POER: Mr Chambers --
CHAMBERS: So the hypothesis was both of those things.
DE LA POER: Let's have a look at page 4. "Test out hypothesis with her being off" is what it says. The decision about Level 1 was the day before. That is what you are recorded as saying?
CHAMBERS: Okay, I -- this now makes sense. So "test out the hypothesis with her being off", is "her being off" the annual leave?
DE LA POER: You tell me.
CHAMBERS: I -- that's, that is my sense of what that refers to. Because the note underneath that wouldn't make sense because it says: then exclude or if we remain inconclusive, we go to the police.
DE LA POER: Yes.
CHAMBERS: So the hypothesis that we were -- that we were going to test would be: are there other potential explanations for the unexplained increase in -- that would explain the causes of the unexplained increases in deaths and collapses.
DE LA POER: The neonatal unit was monitored very closely after this meeting, during the period that she was on holiday and all the way through to when the police were contacted?
CHAMBERS: Correct.
DE LA POER: There was a dashboard which was monitored and reported on --
CHAMBERS: Correct.
DE LA POER: -- weekly. And at -- what was revealed at meeting after meeting is that the pattern had stopped. Do you agree?
CHAMBERS: You were -- you are not comparing -- the unit prior to June 2016 was not --
DE LA POER: We will come to that.
CHAMBERS: No, I think it's important that we understand this. The unit prior to 2016 was not the same as the unit post 2016. Because -- not simply because Letby had been removed but we had changed the admission criteria to the unit, so I will -- I am going to deliberately explain what that meant, is that the gestational age of babies who would be admitted to the neonatal unit following the -- the reclassification and the downgrade, if that's the language we wish to use, would -- would have been that nobody with a gestational age of less than 32 weeks would be admitted; nobody with a low birth weight of less than 800 grams would be admitted; nobody with a complex antenatal history would be admitted. So that was a very significant change from -- so the unit -- so to -- if you are testing the hypothesis and you are only using one criteria to test that hypothesis, then you are -- you are not presenting the whole story.
DE LA POER: No, and I am not for a moment suggesting that. If you will allow me to ask the question, there are two factors, two variables, that were changed: the unit designation and the fact that Letby wasn't there any more. My original question was: did all of the deteriorations and sudden unexpected collapses stop? We know that to be yes.
CHAMBERS: That is -- that is the answer.
DE LA POER: So there is potentially two explanations for that because two variables have changed. Did you ever take expert advice about from the Consultants about what the actual effect was of the redesignation and how that was relevant to the babies who had collapsed unexpectedly previously?
CHAMBERS: So as you -- as you reminded me, we put in process a method of daily management where we had a dashboard that gave a very clear oversight of the -- the level of demand through the unit, the acuity of -- of babies on the unit, the staffing levels on the unit and those -- that dashboard was shared with the -- with the clinicians.
DE LA POER: Mr Chambers, we know and we will come to it, that in March the clinicians wrote to you and set out in terms why in their expert opinion the redesignation did not explain the change in data; do you remember them doing that?
CHAMBERS: I --I do remember the letter. I'm not sure that that was the entirety of the letter. I think they were, but, yes, we can go to it at some point later.
DE LA POER: We will. At all events, we will move to the staying with the subject of police, the evidence that we
have heard from Ms Sian Williams supported by Julie Fogarty, that having undertaken work on the rota she spoke to Executives including Alison Kelly, she doesn't suggest that she spoke to you --
CHAMBERS: Yes.
DE LA POER: -- saying that her conclusion was that the police should be called. Were you aware that she had said that?
CHAMBERS: No.
DE LA POER: Should you have been told that the Deputy Director of Nursing, who had been given a particular task directly relevant to this, had reached that conclusion? Should you have been told that?
CHAMBERS: Perhaps, yes.
DE LA POER: If we move forwards in time, we perhaps don't need to look at the detail but we can if you need to. On 27 March there was a meeting which was attended by you and representatives of the Neonatal Network, do you remember, Julie Maddocks was there?
CHAMBERS: 27 March 2017?
DE LA POER: 2017. Yes, moving forward there?
CHAMBERS: Yes.
DE LA POER: Again, staying with the subject of the police, not all of that meeting, do you recall that Dr Brearey said "this needs to be escalated to the police" in that
meeting?
CHAMBERS: Can you please put the note up?
DE LA POER: Of course I can. INQ0003150.
CHAMBERS: So this meeting, you can see I outlined this meeting and gave an overview as to where I felt we were at that time. So we had had the Royal College review actions and recommendations, we had had the Hawdon review, we had also had the -- the review by pathologists from Alder Hey, 17 cases had been reviewed. Out of all of that there was two unascertained causes of --
DE LA POER: Mr Chambers, if I may everybody can read --
CHAMBERS: But it is important. This was the context for this meeting so the -- the -- the meeting at up until the -- up until the point of this meeting, that's where we as -- as a board believed we were; that there was an explanation for all but two of the causes of death. Those had been --
LADY JUSTICE THIRLWALL: I'm sorry to interrupt you, Mr Chambers, but is this in this note?
CHAMBERS: No, but it's helpful --
LADY JUSTICE THIRLWALL: When you say "TC welcomed everyone to the meeting" that is obviously you?
CHAMBERS: Yes.
LADY JUSTICE THIRLWALL: Then you set out there the
context, did you set out other contexts --
CHAMBERS: I think the note --
LADY JUSTICE THIRLWALL: -- that you are now telling us about?
CHAMBERS: The meeting I think goes on to explore some of that.
MR DE LA POER: This is very important, Mr Chambers. My question was about whether Dr Brearey said that the matter needed to be escalated to the police. It's very important that we focus on that.
CHAMBERS: And I -- I don't disagree with that statement.
DE LA POER: So --
CHAMBERS: But it's important that we understand what this meeting -- what led up to this meeting and what the nature of the discussions were at this meeting because this was the first meeting where there was a decision that we would formally go to the police.
DE LA POER: Mr --
CHAMBERS: So the event, the matters that led up to this meeting was the sharing of the Royal College review, the Hawdon review, the -- the opinion of the Alder Hey pathologist --
LADY JUSTICE THIRLWALL: Yes, you have told us that.
CHAMBERS: Yes, which then was seen as -- was shared with -- with the paediatricians and also the neonatologist. They believed that the -- that didn't explain all the causes of death so it wasn't 2, it became 4, was it 8 that needed to be, you know, looked at in more detail. So this meeting was trying to establish what absolutely the next steps would be and as I outlined in the meeting note at the start, it's about how do we get to the point that the board and the organisation has done everything to answer questions and if it's not at that point, what do we need to do to get to that point? So it was around exploring what the next steps would be.
DE LA POER: Mr Chambers, I have said this already and I am going to say it again, okay, there is going to be an opportunity in the course of my questions for you to give your account. The question that I asked you was about what Dr Brearey said. It simply required you to agree that that is what he said. It is very, very important that you listen to the questions that I ask and that you answer them, all right? The question was: did Dr Brearey say that it needed to be escalated to police? The answer is yes. We have seen that there. We
are now going to have a look at another part of it?
CHAMBERS: Okay.
DE LA POER: We are going to look, please, at page 2. Just, we can see here that Ms Maddocks was asked a direct question by you about phoning the police. Let us just note together what her answer is. "Given the information, on the balance of probabilities, illegal activity has caused the deaths." So that is what she has said in answer to your question. Do you agree that is what she said?
CHAMBERS: These were very comprehensive notes so, I -- I -- I can only assume that is exactly what she said.
DE LA POER: Then if we go to page 6, we will see what you said. What you say is the only thing to do is a police investigation, two-thirds of the way down.
CHAMBERS: Yes.
DE LA POER: Do you see that?
CHAMBERS: Yes.
DE LA POER: Okay. So far so straightforward, do you agree?
CHAMBERS: Well, not really. Because before this you can see the note where I tried to clarify the position and get it clear in my own mind. So I ask a very emphatic question that is: so what we are saying is you absolutely believe we have criminal behaviour?
Stephen Brearey repeats the balance of probability point from that had been made earlier and Dr Jayaram says: well, the honest answer is we really don't know. It's not been sufficiently explored or reassured. There is a subtle difference. So that led to my point that is, well, to get that distinction, we need to go to the police.
DE LA POER: Yes. And I have not asked you anything that requires you to do more than confirm that that is what you said to the meeting and so my question now is this: at the end of this meeting, your position was that the police need to be called; do you agree?
CHAMBERS: That's correct.
DE LA POER: Yes. We didn't need anything else. We just needed that. On 28 March, we know that Letby was due to return to work the following day. We have a meeting. INQ0014281, we can see that you attend together with Sir Duncan Nichol, Sue Hodkinson, Ms Kelly, Mr Harvey and plainly Mr Cross, because he's making the note. Again we will just confirm what is in the note. "The position now, only independent robust investigation is police investigation according to the docs. No natural cause of death, use the phrase 'unnatural death'. Not when but how do we manage
police?" Then a little further down it would appear that it's agreed that Mr Cross was to contact the police on Friday 31st and suggest making an appointment for 3 April. Do you see that that is what is recorded at this meeting?
CHAMBERS: Yes, yes, yes.
DE LA POER: So do you agree it appears that the plan is going to be that the police are going to be spoken to on 31 March?
CHAMBERS: I think, yes, that's right.
DE LA POER: Yes. Okay. Now, we know that the police were not spoken to on 31 March. Do you know why they weren't?
CHAMBERS: There was never any intention to not go to the police. The decision had been made at the meeting on 27 March. What we needed help and advice on is this was a serious escalation of matters and we needed to be clear around how we would manage that next step. What would it -- what would help the police, what would help us, so we sought independent advice? The discussion around that -- I don't remember specifically how Simon Medland came to be offering that advice, other than I was aware that Stephen and Duncan had had a conversation, possibly following this meeting, where there was a suggestion made that getting some independent support so that we could manage the significant escalation to the police in the most effective way.
DE LA POER: My question was: do you know why the police were not contacted on the 31st? Do I understand your answer comes to this, that a decision was made instead to instruct Simon Medland?
CHAMBERS: That is my belief that happened, that the events that happened next.
DE LA POER: We know then that Mr Medland was instructed and that he advised that the Child Death Overview Panel was contacted, we know that led to a meeting with Detective Chief Superintendent Wenham?
CHAMBERS: Correct.
DE LA POER: That brings us to the meeting on 5 May, with the police?
CHAMBERS: Correct.
DE LA POER: Staying with the theme of the police?
CHAMBERS: Yes, that is okay.
DE LA POER: We will deal with other matters in due course.
CHAMBERS: Yes.
DE LA POER: You attended that meeting with Cheshire Constabulary, didn't you?
CHAMBERS: Yes, I wrote to the Chief Constable on 2 May and the meeting from that was 5 May.
DE LA POER: Now as a matter of common sense, do you agree with this: anybody who wanted a police investigation would state the case at its highest; do you agree?
CHAMBERS: Yes, of course.
DE LA POER: Yes. Let us see what is conveyed to the police on 5 May. INQ0102298. We are going to go to page 3 of this, which is the second page of the notes. I am just going to take you to the very bottom. This is what is being presented by the Trust at a meeting you are present at to the police. "As part of the review staffing was looked at. There was a notable high statistical relationship between a member of nursing staff and babies deteriorating in the unit. There is no evidence other than coincidence." Was that fairly stating the position at its highest?
CHAMBERS: I -- I absolutely believe what we said there was our best understanding of the matters as we -- as we saw them.
DE LA POER: What about the Consultants' route map to that position?
CHAMBERS: We had, as is discussed in the paragraphs
above, that where it's headlined "Reviews", we had shared the view the reviews that had been done with the -- with the police at this meeting, so the Hawdon review, the College review. We also described the actions that we had taken around redesignating the unit. We also shared the advice that we had been -- that we had had from the criminal QC. The ACC, the -- Darren Martland outlined the two critical issues as he saw them.
DE LA POER: Mr Chambers, we can all read that. My question was --
CHAMBERS: So I suppose what I am trying to say is I -- I don't think there was anything that we had shared with them did not reflect what the Consultants' concerns were.
DE LA POER: Where is the Consultants' reasoning that they gave you on 29 June and again at other times, where is that here?
CHAMBERS: So the concerns that the Consultants had raised with us on the 29 June had been tested through these independent expert reviews from the Royal College, from Jane Hawdon and -- and also later the reviews with the Alder Hey pathologists. Nothing that they were saying was pointing to deliberate harm.
DE LA POER: Well --
CHAMBERS: So we shared that openly with -- with the police. I am also know -- I am also aware that Nigel Wenham was at this meeting and he would have heard any concerns that had been raised by the Consultants to him at the CDOP meeting, I think on 17 --
DE LA POER: 27 April?
CHAMBERS: 27 April.
DE LA POER: Does it come to this; that the concerns that were articulated to you by the Consultants were not set out to the police?
CHAMBERS: I -- I --
DE LA POER: That is a yes or no. Either they were told --
CHAMBERS: I -- I -- I take issue with that in the sense that it was all -- all those things were, were there within -- within the reviews that we had shared. All of those concerns had been shared with the Royal College. Can we go to the next page just to see if there is any reference?
DE LA POER: Yes.
CHAMBERS: We were very open with -- with the police.
DE LA POER: We are going to look at the next page. We can see here she's been moved from nights to days and redeployed off the unit whilst the review was taking place for her protection. Let's just consider that statement for a moment, Mr Chambers. She was, as you had been told by the Consultants on a number of occasions moved from nights to days and then the pattern of collapses at nights stopped. She was moved off the unit and then the pattern of collapses stopped altogether. You don't tell the police any of that, do you?
CHAMBERS: It's -- it's not clear in this, you know.
DE LA POER: Well --
CHAMBERS: The Datixes weren't always being completed. So -- but I don't -- I don't know the facts of this matter but you are right, it's not been articulated here.
DE LA POER: A person who wants a police investigation would state the case for an investigation at its highest. Do you agree that you did not state the case for a police investigation at its highest?
CHAMBERS: I think that's an unfair proposition. We -- and we shared with the police very openly and candidly what we genuinely believed to be the position as we understood it at the time.
DE LA POER: Meeting on the 12 May. This is INQ0003076, we will see what view the Executives provided to the police there, page 6, please. The second paragraph:
"TC stated a meeting had been held on 11 May with the Countess of Chester Executives and it was felt that the explanations of what had happened do not lie in a single place or cause and certainly not criminal. Concerns from the Consultants were also expressed to the RCPCH as it is referenced in their review." So you were telling the police in terms that it was the collective view of the Executives that no crime had been committed?
CHAMBERS: I think it's fair to say that we were very much taking the independent experts' view that there was no -- no unnatural causes of death identified. There was two cases that were unascertained. We were also aware that in the Hawdon review that there were care failures that had been identified that may well have changed the outcomes and in our mind would have been the advice that we had been given by Simon Medland. So all of that taken together I think represents the position as it's described there.
DE LA POER: So this wasn't an investigation you were encouraging; it was an investigation that you were discouraging?
CHAMBERS: Absolutely not. We -- we can carry on in the note and I'll prove -- I can emphasise where that wasn't
the case.
DE LA POER: Well, you go on to say that you recognise it's a matter for Cheshire Constabulary now to determine the matter. But you have offered an opinion on the very matter that they are investigating and that opinion is to the effect that the Executives don't think there should be a police investigation because you don't think a crime has been committed?
CHAMBERS: No, that's not right. What we were saying is we couldn't find any evidence of criminality: you are the experts, please help us.
DE LA POER: Well --
CHAMBERS: So can we carry on to the notes a little bit further down, please, Mr De La Poer?
DE LA POER: Before we do, let's just remind ourselves of exactly what was said: "... it was felt that the explanations of what has happened do not lie in a single place or cause and certainly not criminal."
CHAMBERS: So it says: "TC satisfied that Cheshire Constabulary would determine whether or not there has been any criminal intent. COCH have maintained an open mind and would welcome an inquiry if necessary but this has never felt the issue. It was felt amongst the Executives that we
just needed it to be checked." That doesn't sound to me that we were trying to not or trying to dissuade the police from doing an inquiry; it sounds to me to be the opposite.
DE LA POER: You weren't stopping them making an initial assessment of whether to investigation, of course you are not, but you are telling them before they start that initial assessment: we don't think there's anything in this, certainly not criminal?
CHAMBERS: What -- I suppose what we were saying is this is our belief at the time and why wouldn't we share that with them?
DE LA POER: Let's move forward, please, to the press statement of 4 February.
CHAMBERS: No, can we please stick with this note?
LADY JUSTICE THIRLWALL: If you just answer the questions and if we get to the end of the document and I feel it has not been fair, we will come back.
CHAMBERS: Yes.
LADY JUSTICE THIRLWALL: Let's just follow what Mr De La Poer -- he is not asking improper questions, let him ask.
MR DE LA POER: Mr Chambers, you need to understand this process. We have a lot to get through. As you know, your barrister representing you will have an opportunity at the end to take you to any matter that we have left or any further thing that you want to say about it. We are going to move through, please, to the press statement on 4 February of 2018. I think that we have a -- I am not going to give an INQ for this because I think that there is a cleaner copy that's been provided to our presenter. This is on 4 February 2018. We can see that you are quoted at the bottom.
CHAMBERS: Yes.
DE LA POER: We will go over the page to look at the particular part of the quote because we are on our topic of police. Explaining why police were brought in, he continued: "We have had various enquiries, including the Royal College of Paediatrics Review, and there were just a few anything else that our clinician said: look, we think we have got 90% of the answers but there are still bits that we need to do and are sensibly clear that we have not missed anything." That is not an accurate characterisation of the Consultants' position before you went to the police, is it?
CHAMBERS: Yes -- no, I agree with that. I -- this, as
it's presented is that this was a conversation with a journalist about neonatal matters. This was an hour's conversation with a journalist about a whole range of matters. This release came as a real surprise to me. We -- we were having a conversation and I may well have -- well, I clearly did say these things and it's with enormous regret that -- that it was reported in this way because it doesn't feel that that was the position as -- A, as our paediatricians would have seen it and I think it's an oversimplification of the position that perhaps as we saw it.
DE LA POER: Dr Jayaram has said in evidence, and I will give you an opportunity to say whether you agree or disagree with his characterisation of this, that it was insensitive and disrespectful to paediatricians and Families, it was demeaning. Do you agree?
CHAMBERS: I -- I don't know, it certainly was clumsy. I wrote to the paediatricians once this press release or -- or article went out to apologise and I can see how insensitive it would be for the Families reading this, particularly where I make the reference that -- that the communication with patients -- with parents could have been better but overall the situation seems to be managed really well. I know listening to the Families' evidence at the start of this Inquiry we didn't get it
right in terms of the communications with Family and I -- so terribly and heartfeltfully sorry about that. It was done with the best intentions and this was a very clumsy article.
DE LA POER: Was this said with the best of intentions?
CHAMBERS: As I said, it was not even meant to be a statement I -- I -- it clearly -- it clearly wasn't within the best intentions but it was not deliberately me trying to be misleading or trying to trivialise or paint a picture that that we were getting everything right.
DE LA POER: I am just going to take you back because you don't appear to have been clear, if I may say so. Was it insensitive to say this?
CHAMBERS: It -- it -- as it's written here yes, clearly it was.
DE LA POER: Was it disrespectful?
CHAMBERS: To who?
DE LA POER: The paediatricians?
CHAMBERS: I -- you, you -- all I can say is if they feel that they -- if that's how they have interpreted it in the way that Dr Jayaram has done in his evidence, then why would I disagree with that?
DE LA POER: And was it disrespectful to the Families?
CHAMBERS: It was -- it was terrible to have seen this
eventually in print. This was never an interview around neonates. It was clumsy, it was disrespectful and I am terribly sorry.
DE LA POER: Would it have been okay for you to have said it if it was private?
CHAMBERS: I think it ... possibly not. Probably not because we -- I -- I now know that we hadn't got these matters right in terms of the communications with Families.
MR DE LA POER: My Lady, would that be a convenient moment?
LADY JUSTICE THIRLWALL: Yes, indeed, so we will take a 15-minute break, we will come back just before 20 to.
(11.22 am)
(A short break)
(11.41 am)
LADY JUSTICE THIRLWALL: Mr De La Poer.
MR DE LA POER: My Lady, Mr Chambers, topic two. Risk. You were the accountable officer under the risk policy; is that correct?
CHAMBERS: That's correct, yes.
DE LA POER: And you were also the chair of the Corporate Directors Group which considered the Executive Risk Register; is that right?
CHAMBERS: That's correct.
DE LA POER: I am going to bring up the Executive Risk Register, INQ0049845. If we go to page 2, please. There are just two matters to ask you about this page. The first is a reference to two particular risks, I am not entirely sure why they have been ciphered here but in fact I can tell you that it is the first risk and the penultimate risk, which is being referred to there. We can see the entry at the bottom: "Chairman's actions were taken on 11 July 2016 to add two risks to the Executive Risk Register from Urgent Care. There are no risks identified by the divisions for escalation to the ERR for July 2016." So those are the two neonatal risks that we see there. We heard from Ms Millward that she thought the reference to "chairman" was not to Sir Duncan Nichol the chairman of the Board of Directors, but to the chairman of the Corporate Directors Group which was responsible for the Executive Risk Register. Now, the first question about this entry is: is that reference to chairman a reference to you?
CHAMBERS: I -- I believe it is, yes.
DE LA POER: Are we to understand then that on 11 July, you said you wanted two risks to be added to the Executive Risk Register from the Urgent Care Risk Register?
CHAMBERS: I -- I don't remember the specific instruction but it -- it's -- it's quite likely that that was an instruction.
DE LA POER: Now, the second matter to ask you about here is if we see the language of one of those two risks: "Potential damage to reputation of neonatal service and wider Trust due to apparent increased mortality within the neonatal unit". That was one of the two risks that it would appear you asked to come on to the Executive Risk Register and we can see that it has a risk level grading that would justify that. My question, however, is whether you were struck at the time about the way in which that risk was framed, in other words by reference to reputational damage? Was that something that struck you at the time?
CHAMBERS: I don't remember seeing the -- the risk as it was drafted there prior to any formal Executive Risk Review Meeting. The phrasing of the risk there is in my view not necessarily capturing -- I will take my glasses off, not necessarily capturing the origin to that risk. A Risk Register is about having the origin to
a risk and then describing the risk itself, so the risk as I saw it was that we had reclassified our urgent -- our neonatal unit, that there had been an increase in mortality and it was very important that in maintaining the confidence in local hospital services and in this case neonatal services, that we -- if you like, that would have been the reference around reputational risk. At any day of the week, even today, there can be a woman in the obstetric unit, labouring, and whose baby may require neonatal services and it was very important that we -- was able to reassure them that the neonatal unit was safe. So that was -- it was around that issue, not any kind of reputational issue that -- that would have been a concern to the organisation around how it was viewed. It was maintaining confidence, so the way that the risk was described there and I don't know if it was redrafted at a later time, but the way it was described, described there, I think is problematic.
DE LA POER: It is problematic. You see, just help us to understand how you can be directing that a risk should be put on the Executive Risk Register without having seen what that risk is?
CHAMBERS: Sorry?
DE LA POER: You have told us that you didn't see it until it got on to the Risk Register as I understand it. But
what note appears to indicate is before it got on to the Executive Risk Register, you asked for it to be put on there which would suggest that --
CHAMBERS: I -- I -- I'm not sure that is necessarily the nature of the instruction. The instruction would have been we need to have risks described on the Executive Risk Register that dealt with the matters around and the -- and maintaining confidence because of the increase in neonatal mortality and I would not necessarily have seen the drafting of that prior to it going on the Risk Register.
DE LA POER: Well, Karen Townsend said the wording came from the Executives; did you know that?
CHAMBERS: I -- I have heard that from her evidence. I cannot imagine a scenario where that would have been the case.
DE LA POER: Well, unless the Executives were trying to control the narrative?
CHAMBERS: Yes, and that is what I am saying. I cannot imagine a scenario whereby we would have instructed the way a risk was described, prior to the Executive Risk Review Meeting, where then there would have been a discussion about: does this risk describe the risk? Are the actions the right actions? Are the mitigations the right mitigations? Are the scores the right scores? This is just an overview and I can't comment on -- on what was said by Ms Townsend but I struggle under any scenario to see how the Executive would have instructed the description of a risk.
DE LA POER: But bearing in mind the wording in your phrase is problematic, do you have any recollection of having challenged that wording and saying: look, we are not explaining what the problem is here. We need to reframe that. Do you have such a recollection?
CHAMBERS: I -- I -- I -- I don't -- I don't remember that discussion but I know from Ruth Millward's evidence and the way that she described the issue around this particular risk. She used very similar explanations to the one I have given, so it must have been challenged through a process.
DE LA POER: If it was challenged, we should be able to find a record of that, would you expect?
CHAMBERS: I think that's right, but I -- I -- I can't help you with that.
DE LA POER: If there is no such record, would you accept some personal responsibility if it transpires that there is no indication that that was changed for not having challenged it?
CHAMBERS: I -- I think as the -- as the chairman of this committee, I think I must take some accountability for
that. But I -- I don't think that what's been described here, if the proposition is that we were somehow putting reputation over safety, that's not right. And I sincerely hope that we can find a record that puts this straight.
DE LA POER: Next topic, we can take that down, the Royal College and Dr Hawdon. You attended a close-out meeting on 2 September, didn't you?
CHAMBERS: Yes. Yes.
DE LA POER: We can bring up the notes but I only want to pick out one or two key points. The first is that you were told in that meeting about the need for a Casenote Review and an HR process?
CHAMBERS: Yes, that's correct.
DE LA POER: Do you recollect that?
CHAMBERS: Yes.
DE LA POER: There was also discussion about a forensic pathologist; do you recall that?
CHAMBERS: No, there was no discussion about forensic pathologist.
DE LA POER: Let's bring it up. INQ0014605. The notes start on page 33 but we will need -- we will bring up 33 first just to show that. So it starts with the feedback, which is the wash-up that you were having.
This is what we have heard from Sue Eardley and we can see the third line, three quarters of the way down: need case by case of death plus HR process for Lucy. We have covered that. If we go over the page we will see page 34 as it appears in here and then we can see that there is a question that you asked in the middle: "Were these unexpected? We have heard that they were not expected." That is attributed to you. Then if we go over the page we can see although it's attributed to you, a possibility at least is that this is a reply to your question: "Some were unexpected, can't say if there was a link to them." Whatever that may mean, my question was about, at the moment, forensic results pathologist Tony Beswell from Edinburgh. Any recollection of that?
CHAMBERS: No, none at all.
DE LA POER: Now, I mean it says "forensic results pathologist". But if you were discussing a forensic pathologist, would you have understood --
CHAMBERS: I -- I -- I absolutely don't, don't remember any reference to a forensic pathology at this time. I am clear that was I think number 6 in the
recommendations from Jane Hawdon. I -- I have no memory of this being raised at this time.
DE LA POER: Well, my question was predicated on if, so if I will ask it. If forensic pathology was discussed in September of 2016, would you have understood that a forensic pathologist is a person who investigates suspicious death, would you have known that in 2016?
CHAMBERS: I think I -- possibly. I would have probably sought guidance as to what -- what you mean by forensic. I wouldn't have assumed to have fully understood what the term meant.
DE LA POER: We'll move forward to the RCPCH recommendation. This is INQ0003120, the letter written on 5 September to Mr Harvey. If we look on page 2, we will see mention again of that HR investigation. It's there saying our understanding is an allegation has been made and therefore a process of investigation needs to be put in place which sets out the nature of the allegation and the process you will follow to investigate it and their recommendation about a particular process that might be followed. Now, we have had heard from Sue Eardley who wrote this letter and from Claire MacLaughlan who spoke about this particular recommendation. Sue Eardley's position was that this was a disciplinary investigation that was being recommended and that is clearly indicated by the use of the word "allegation", meaning something is being investigated that has been alleged. What Ms McLaughlan has told the Inquiry was that her expectation was that a disciplinary investigation would be started and almost immediately a safeguarding process would be triggered and the police would be contacted because effectively, as I understood her evidence, the formulation of the disciplinary allegation was such that that was the only way it could be resolved. So that is the evidence we have received from the RCPCH about this. Now, we know that no disciplinary process of Letby was started based upon the allegations made by the Consultants. What was your understanding of why that was?
CHAMBERS: I would have taken my guidance from Sue Hodkinson, who I know gave evidence yesterday, as to what would be an appropriate way of taking this matter forward. I don't remember specifically what the nature of that advice was, but there was an options paper, as I -- as I remember and I was reminded of it yesterday through her evidence, that said there was a range of scenarios or options that could be worked through to
take this matter forward and one of those options was the one that was progressed. But I haven't got the specific detail.
DE LA POER: Which option do you believe was the one that was progressed?
CHAMBERS: I -- I can only remember it being option 4 but, I can't actually specifically describe in any great detail what that option was.
DE LA POER: I just invite you to take a step back from this and understand what is subsequently said and we will look at the detail of it about the RCPCH. They have given a recommendation to undertake a disciplinary process, that's what the evidence amounts to. That disciplinary process was not instigated, we have heard evidence about advice being taken. But do you agree that in every subsequent meeting with both the board and external agencies it was presented to the outside world that the recommendations that the RCPCH had given had all been followed? That was the impression that was given, wasn't it, at all those meetings?
CHAMBERS: I think -- and that -- that was my best understanding of the position. I -- I -- this letter was -- remind me, was this letter to me?
DE LA POER: It's addressed to Mr Harvey.
CHAMBERS: Yes, I can't specifically remember this letter and maybe it's something you can pick up with Mr Harvey tomorrow. But -- but other than that, I -- I can't offer any -- any -- any particular observation.
DE LA POER: Bearing in mind you can see the text now, and you know what you were saying to people about the RCPCH had made a recommendation which we followed in terms of the Casenote Review, do you think that you misled people?
CHAMBERS: No.
DE LA POER: I am not suggesting intentionally. But that what you --
CHAMBERS: No.
DE LA POER: -- said was misleading?
CHAMBERS: No, I -- I don't really think it was. I mean it -- the -- it was our best understanding of -- of the position we were at -- at the time. The -- what came out of this, as you know, was a grievance. Whether -- whether it was -- it certainly wasn't clear in my mind that there had been any recommendation from the Royal College to the effect of disciplinary.
DE LA POER: Well, again I am not suggesting this was intentional. I will be clear if I do. All right. You can see now the words that were used about
investigating an allegation. You know the way in which you presented to everybody about whether or not what the RCPCH said should be done had been done. Now that you can see that that was a recommendation that they made that wasn't followed, do you recognise that people could have been misled by you -- and I am not suggesting you did so intentionally because of the way in which you were talking about the RCPCH's recommendations and the fact the Trust had followed them?
CHAMBERS: So I recognise you have asked me the same question three times and my answer I think remains the same. Notwithstanding your assurances that you are not saying anything about deliberate, all I can say at the time, I don't believe we misled anybody and what we said was our best -- best understanding of matters at the time.
DE LA POER: I am now going to look at the letter from Dr Hawdon. INQ0003358, this is the letter that accompanied her report. It's addressed to Mr Harvey again and again I would just like you to look over the page at what she says that she was and wasn't able to do. You will recall that on that letter that we were just looking at, the RCPCH set out the areas -- the minimum areas of investigation. So she responds to each of those because she was instructed to do each.
LADY JUSTICE THIRLWALL: Are we waiting for another page?
MR DE LA POER: I think we are waiting for page 2. So her first response is that this is effectively a detailed chronology she was asked that she didn't have time to do it. She says for (b) that she has commented. She says that of the recommendation that she work in conjunction with a pathologist that she wasn't able to do that, that is a -- for every case. (d) is to check out the access requirements to the unit which she says should be commissioned locally, and (e) is effectively saying she can only consider what she's been given. So in terms of the five areas that she was asked to investigate, she's saying in terms that for some of them either she hasn't got the capacity to do it or hasn't done it. Do you see that is what she is saying?
CHAMBERS: Yes, she also goes on to say in (a) I do not consider would yield an investment, rather I have prepared a synopsis of key events and issues focusing particularly on events. So her view was that -- or my interpretation of this, I have not seen this letter, but my interpretation would be that she was able to carry out the spirit of
the recommendation from the Royal College review.
DE LA POER: There is an issue about whether she knew what the RCPCH knew when they made that recommendation. That's not for us to address here.
CHAMBERS: Yes, okay.
DE LA POER: But you have picked on (a). But as to (c) and (d) directly, and of course the access to the unit is the very issue going to who may be harming babies, who may have access to babies, she says she's not doing it?
CHAMBERS: Yes.
DE LA POER: All right.
CHAMBERS: Okay.
DE LA POER: So she had been asked to do it, the Royal College thought she should do and she said: I am not going to do it. Did you know that Dr Hawdon had responded to say that she could not carry out all of her instructions?
CHAMBERS: I -- I hadn't seen this letter at the time.
DE LA POER: Now, again, you spoke externally -- and I am not suggesting deliberately, about the fact that the Trust had followed the recommendation of the Royal College and we can see that the recommendation of the Royal College was not in fact fully carried out by Dr Hawdon?
CHAMBERS: So we can see that she did --
DE LA POER: I haven't got to my question. My question is: do you think that people may have been misled -- I am not suggesting you did so deliberately -- by the way in which you were presenting to the outside world that the Trust had done what the Royal College had recommended?
CHAMBERS: Jane Hawdon produced a fairly detailed report and in that report, it dealt with some but not all of the matters as they are described here. I am not aware of the elements as they are described there in -- is it (d), around the -- and I'm not clear how we satisfied ourselves that that matter had been completely dealt with. You'll need to explore that tomorrow. Do I feel, therefore, that we misled? Again, I -- I think that's such a strong thing to say. I -- I -- I'm not sure I do, if I'm honest.
DE LA POER: So --
CHAMBERS: But it's difficult for me to really give you a firm answer because I hadn't seen previously this -- I certainly hadn't seen this email at a time where we were making any kind of public statement.
DE LA POER: Do you think that people who heard you when you said there was a recommendation for a Casenote Review, and we have completed it, understood that not all of what the Royal College had recommended had been
done, do you think they understood that when you were saying it?
CHAMBERS: Yes, but I'm not sure I agree with your proposition, that that hadn't, that wasn't the case because the areas around the pathology matters was resolved and dealt with and Ian Harvey can take you through the detail of that. In terms of any further requirements from pathology results from, you know -- you know, from Alder Hey was dealt with. I'm -- I'm very comfortable that we had delivered the recommendations from the Royal College review. The one that I'm less clear about is the one that's marked there as (d).
DE LA POER: Yes, the access?
CHAMBERS: Yes.
DE LA POER: Well, I have given you the opportunity to answer that. Let us look at the conclusion of Dr Hawdon's report. We only need to go to page 55 of this. INQ0006862. This is her summary at the end?
CHAMBERS: Yes.
DE LA POER: It is her amended summary because originally there were five children in section 2 and we can see that [Child D] has been moved up. Do you see that?
CHAMBERS: Yes.
DE LA POER: Now, Dr Hawdon says this: "The death collapse is unexplained ... it is the investigation of these cases which potentially benefit from local forensic review as to the circumstances personnel accepted. Date of first collapse is noted". So we know on, over the page -- we don't need to look at it -- she uses the phrase "broader forensic review" for her category 2 cases and you will recall that, so that is what she said. Did you read Dr Hawdon's report when it was received?
CHAMBERS: Yes.
DE LA POER: So you will have seen that in four cases there was a requirement for local forensic review as to circumstances, personnel, et cetera?
CHAMBERS: Yes.
DE LA POER: That was never undertaken, was it?
CHAMBERS: My understanding is that that was the instruction that was given to the pathologist from Alder Hey and when Mr Harvey sought to be clear in his mind what the word "Forensic" meant, he, as I under -- as I remember, had a communications exchange with Jane Hawdon --
DE LA POER: We will come to that. We'll come to that --
CHAMBERS: -- to the effect that she was fairly opaque, I suppose, as to what "forensic" meant. She kind of almost as I remember -- but I haven't seen all the email
exchanges, to the effect of: well, it can be whatever you feel it needs to be.
DE LA POER: Let's just have a look. The pathology as you have told us was part of the original Royal College recommendation for all 17 cases. In fact, as we know only four of them were looked at?
CHAMBERS: No, it's -- the postmortem results of the cases had been made available to Jane Hawdon.
DE LA POER: The recommendation of the Royal College, and we are not going to go back over this, was that she and a pathologist together went through it. That was the recommendation and she said in terms: I don't have the capacity, I can't contact a pathologist. So that was three. What happened was that four cases were sent to Dr McPartland that she had identified as her category 2. But what she's talking here now about is not about a pathology because you can see the clue is in the circumstances, personnel, et cetera. So a pathologist is not going to be look into the circumstances and personnel, are they?
CHAMBERS: I -- that's correct. I -- this is something you will need to pick up with -- with Mr Harvey because there was a very specific conversation that he had with Jane Hawdon to establish, I think, what -- what would be
the appropriate resolution to -- to this -- this action.
DE LA POER: There was no local forensic review, was there, into the circumstances and personnel?
CHAMBERS: I -- all I know for certain is that these four cases were shared and discussed with Dr McPartland and collectively with her colleagues at Alder Hey. They arrived at a view that two of these cases, the causes of death were unascertained.
DE LA POER: The collapse of a third was also unascertained?
CHAMBERS: Say, again sorry?
DE LA POER: The prior collapse of a third was also unascertained?
CHAMBERS: Okay.
DE LA POER: But that was not an investigation into the circumstances and personnel, was it?
CHAMBERS: Yes -- and again, I -- I am struggling to remember how this matter was resolved. It may be that I can't -- I can't be clear.
DE LA POER: Let me help you, Mr Chambers. It was resolved because once this document was shown to the Consultants in the following year, and was shared with the network, there was a discussion about those four cases and to summarise it, four became seven --
CHAMBERS: Yes.
DE LA POER: -- when the network reviewed it --
CHAMBERS: Okay.
DE LA POER: -- and then seven became 8 when the seven Consultants on the unit?
CHAMBERS: Fine.
DE LA POER: So that's how it resolved. It only went up from the four, but until that point no investigation had been done. Now, I would just like to ask you about, please, something that you said about Dr Hawdon's report. INQ0006890 and we are going to go to page 289 and just so that you understand the context of this, this is your document replying to the Consultants' list of concerns, which you sent in 2018 and we are just focusing here, and we will come back to the document in due course, upon what you say about Dr Hawdon's report. So it's INQ0006890, page 289. And we can see at paragraph 2.6, four lines down: "There were four cases in which Dr Hawdon felt that the cause of death was unascertained and she advised that subject to Coroner's postmortem reports, there should be broader forensic review of the cases as an independent clinical review of these cases remained unexpected and unexplained." That is the quote from over the page which you remembered. "I discussed your question with Ian Harvey who describes how time constraints precluded a comprehensive reading and has no recollection that he omitted to mention that further investigation of a small number of cases was recommended. It was certainly not intentional." So the allegation was put that before they received the report, nobody mentioned to the Consultants about those four cases requiring broader forensic review due to being unexpected and unexplained. So that's there. My question is: please tell us about the discussion you had with Mr Harvey and what it was that he was telling you about time constraints precluding a comprehensive reading?
CHAMBERS: I -- I -- I really don't know. To be fair, the -- in producing this document, which was a very detailed and thoughtful document in the sense that the questions that came from the paediatricians were thoughtful and there was an -- an equivalent amount of thought went into the answers and so Ian would have helped in the drafting of this response. So I don't remember specifically, at all, what the time risk constraints he's referring to other than perhaps the requirement that we promised to publish the
findings of the College review and -- and these other matters, and that we were already struggling to hit those -- those timelines.
DE LA POER: Just -- the words included in your document "time constraints precluded a comprehensive reading" rather sounds like because he was very busy, he didn't read it properly. I mean, that's what that ordinary English language means, doesn't it?
CHAMBERS: Yes, you, you -- it's -- I know it's my letter but these would have been Ian's words and I think it's important that you discuss that with Ian. I wouldn't have drafted this without his support.
DE LA POER: You there appear though to be accepting to the Consultants who by now know all about Dr Hawdon's report and have had those interactions that I have described that there were in your phraseology a small number of cases were recommended for further investigation. Do you see?
CHAMBERS: We are still on 2.6, are we?
DE LA POER: Yes. We have read it already. "... [he] has no recollection that he omitted to mention that further investigation of a small number of cases was recommended." So the point really being that it would appear, Mr Chambers, that in 2018 you recognised that Dr Hawdon
had recommended further investigation in four cases?
CHAMBERS: Is -- are they -- is this in respect of the feedback meeting to the clinicians, to the doctors that was taking -- that took place in January?
DE LA POER: 26 January, yes.
CHAMBERS: Yes. So it's in relation to that. He's right. I -- I'm not sure he was clear at that meeting that there was a requirement for a further four cases. But I know that he knew that work needed to be completed, that work was ongoing and it would have just been an oversight on his part. We also know -- I also know that following those meetings, there were several further meetings between Ian, the paediatricians, the Neonatal Network, that in your words took the number from two to four to seven to eight. So it's clear that the work was ongoing and Ian was being very attentive to it. It was just an omission on his part and he apologises for that, I think, in this letter.
DE LA POER: Mr Harvey was dealing, as we understand it, with the detail of it and I understand your evidence to be to that effect?
CHAMBERS: Yes.
DE LA POER: I mean, was it -- were you being told that Dr Hawdon's recommendation would be entirely satisfied,
in terms of these broad forensic review, by Dr McPartland having a look at it?
CHAMBERS: I think that's probably not an unreasonable description of what I heard. Whether that was specifically what Ian was saying, Ian was not ever in the habit of being anything other than thorough.
DE LA POER: Let's have a look at the RCPCH report, INQ0009619, this is 28 November that it's received by the Trust. And we are here just going to look at the dissemination copy, so this isn't the confidential copy, this is the dissemination copy. If we go to page 13, we will just consider one of the questions was: does it have clear and engaged leadership and good team working? We can see that the first paragraph, if I can characterise it in this way, and ask for your agreement is overwhelmingly positive about the leadership; do you agree?
CHAMBERS: Yes, it describes good working relationships between doctors and nurses.
DE LA POER: Yes. Now the second paragraph raises some historical issues and identifies individual problems. But do you agree that the weight of this, what's being said about the leadership is it is very good but there are one or two problems that we have identified?
CHAMBERS: No.
DE LA POER: Is that a fair summary of what it's saying?
CHAMBERS: No, I don't -- I don't think you can weigh paragraph 1 or paragraph 4.3.1 as a dominant paragraph over 4.3.2. Quite often you find with any kind of review that is done, whether it's a CQC review, or -- they will often start with very warm comfortable descriptions and then will get into the, if you like, the -- the meat of the issues that need to be resolved and I think this report is a bit like that. So but my -- you know, my thoughts -- what were my thoughts about the -- the -- the neonatal unit? We had some truly brilliant doctors working there who worked really hard. We also had some wonderful nurses there who too worked hard. The relationships between the two could change by a shift. What -- what -- what we did know, and what I knew from my own observations from doing walkabouts on the unit, is that this was a unit that was under significant pressure. This was a unit that had gaps in some of the medical rotas. This was a unit that had gaps in the nursing rotas and these were things that we were seeking to resolve. So --
DE LA POER: Mr Chambers, I have listened courteously to
you making a speech. I am asking you about this document and what it says about the leadership. We have looked at the first paragraph. In relation to some of the problems that are identified it is observed for example, do you agree, this is not uncommon on an LNU and there is a training issue that needs to be identified. But I am suggesting to you that when you take those two paragraphs collectively the thrust of what the RCPCH are saying is that this is a well led unit; do you agree?
CHAMBERS: I -- I think that's not an unreasonable --
DE LA POER: So well-led unit is what the RCPCH is saying. Let's have a look at what else is said. Page 20. We can see that there is a recommendation, do you agree, to the Child Death Overview Panel about how they could improve their processes to improve patient safety; do you see that?
CHAMBERS: Yes.
DE LA POER: Page 22, we can see that there is a recommendation towards the bottom, both to NHS England and the network about how they can improve matters in order to promote patient safety; do you agree?
CHAMBERS: Yes, that was in relation to the transport services.
DE LA POER: Yes.
CHAMBERS: Yes.
DE LA POER: Over the page. Do we see that there is another set of recommendations, both between the network and Commissioners about improving patient safety? They are both highlighted for you.
CHAMBERS: Sorry, what was the question again?
DE LA POER: There are two recommendations to the network and to NHS England which are aimed at improving patient safety?
CHAMBERS: Correct.
DE LA POER: Let's go to page 24. We have the question that was within the Terms of Reference: are there any identifiable common factors or failings? And we can see that there is a paragraph to start with, 4.6.1, which states a number of facts, but is not in itself answering that question; do you agree?
CHAMBERS: Well, I'm not sure I do, actually.
DE LA POER: So --
CHAMBERS: The 4.6.2.
DE LA POER: I am not asking about 4.6.2, I am asking about 4.6.1 which I suggested to you contains a number of factual assertions which don't answer the question we will come to 4.6.2.
CHAMBERS: That's correct.
DE LA POER: 4.6.2. The first bullet point indicates that
staffing levels were inadequate. There is no analysis about whether or not those staffing levels were different before this issue arose, is there? It's a bare statement of the fact that the standards are not being met?
CHAMBERS: I think that's right, yes.
DE LA POER: To determine whether or not staffing factors were the cause of the increase in mortality, you would need, wouldn't you, to conduct an analysis about whether there had been a change because if the staffing factors were constant, that would tend to suggest that the staffing factors are not responsible for the increase; do you agree?
CHAMBERS: What we knew from the work that we had done before -- between the 29 June 2016 and the recommendation to the board on the -- was it 14 July, that we would downgrade the unit, we would move -- we would conduct a Royal College review. In those intervening periods we did some fairly high level work that looked at demand, acuity, birth rates, weights, staffing levels and the -- what we knew at that time is that the unit had seen a significant increase in activity, we knew at that time that the acuity had gone up. These were not cause or explanatory but they were just context. So I think, you know, if we -- if we know that and then we have a unit where the staffing levels are inadequate, that's a concern.
DE LA POER: I am not suggesting you shouldn't be concerned. We are looking for an answer to the question of what might explain the increase and there is no analysis here provided by the Royal College beyond the bare statement that that standard is not being met to identify how it might be that staffing levels at one point in time when there wasn't an increase were materially different to staffing levels at the time when there was an increase?
CHAMBERS: And I was saying that in that same time there had been a change in demand, acuity and complexity.
DE LA POER: Are the Royal College telling you that staffing levels are the explanation?
CHAMBERS: No.
DE LA POER: No.
CHAMBERS: And that is not what we read.
DE LA POER: Next potential explanation. There are concerns about transport not being timely enough. Now, that could only apply to babies who were transported off the unit, couldn't it?
CHAMBERS: That's correct.
DE LA POER: That particular concern. And that by no means
accounted for the increase in mortality, did it?
CHAMBERS: Well, I -- I don't know. But it's a factor.
DE LA POER: Well, did you conduct any analysis to work out of those babies who died, how many of them were transport babies and therefore how many would be explained by this concern?
CHAMBERS: So Jane Hawdon, when she did her review, she identified that there had been significant delays in -- in sepsis treatments and also in transport and transfer.
DE LA POER: I am looking at --
CHAMBERS: We also -- we also know, Mr De La Poer, that in the evidence given by one of the Registrars, and I can't point you to the INQ, but maybe somebody can, the evidence there was that this was one of our doctors that had worked in the unit as a trainee before 2015, worked in the unit 2015/2016 and then worked in the unit post, so 2018. His evidence was that he saw babies that were being cared for on the neonatal unit, at this time, in 2015/2016 that he would have seen transferred out previous to this when he had worked there on his first placement. So these are just facts of -- and context.
DE LA POER: Mr Chambers, I have again listened courteously to you making a speech. I am asking you about what you knew at the time. Whatever the doctor has said now in
his evidence is not relevant to the decisions that you are making at the time on the information available to you then. If we have a look at the third point, that is a recommendation, do you agree, about improving detection; it is not about what may have caused the increase, it is about improving detection, in other words explaining why an increase might occur; do you agree?
CHAMBERS: I think that's right.
DE LA POER: Similarly the fourth point is about improving detection, not explaining or pointing to anything that might be a cause; do you agree?
CHAMBERS: I think that's probably right as well.
DE LA POER: So does it come to this, and we have been through it in substantial detail: the Royal College did not provide you with an answer for why the mortality rate had increased?
CHAMBERS: Okay, can we refer back to my witness statement where I deal with this very point? I am struggling to find the actual paragraph number, if somebody can help me.
DE LA POER: Well, can I suggest, rather than us looking for that, that that is identified over lunch and we will come back to that?
LADY JUSTICE THIRLWALL: We will find it over the lunch time and then you will have it.
CHAMBERS: Okay, thank you.
MR DE LA POER: And you will have an opportunity to answer that. We will move forward in our timing. We know, don't we, that the network contacted the hospital to say that they would like a copy of this report, that's correct?
CHAMBERS: I -- yes, I am assuming so yes.
DE LA POER: We can have a look, INQ0004299, and we can see page 2. We can see near the top: "Network would like a copy of the review." That's what's being said four lines down.
CHAMBERS: Okay.
DE LA POER: And we can also see towards the bottom: "Duncan Nichol [his initials]: finish review (some unexplained but not unusual)" So it seems to be an acknowledgement that there are four cases presumably from what Dr Hawdon has said which are unexplained, the ones that she recommended for further forensic review. What was the expertise that was present in the room there to assert that some unexplained neonatal deaths were not unusual?
CHAMBERS: I -- I think the number that we were referring to at this time was two, not four, and I'm pretty sure but you need to check with Mr Harvey tomorrow, that he asked the specific question of the Alder Hey pathologist how unusual is it to have unascertained causes of death and that would have been, I think, the origin to that point.
DE LA POER: Dr Hawdon had identified four unexplained and unascertained deaths?
CHAMBERS: Correct.
DE LA POER: Let's see what she said about that. INQ0003124. She was asked directly this question some time later. And she of course is a neonatologist, page 2.
CHAMBERS: Yes.
DE LA POER: So here she is talking about the broader review along the lines of the RCPCH, who was on duty, who was perhaps unattended with the babies, those sort of things. So she is giving some helpful pointers about what she meant. "Many deaths were explained but some of these may have been prevented with different management. Completely unexplained on a neonatal unit is rare so by definition more than one unexplained death does arouse suspicion." So when she's asked in April, that's what she says.
Should the Execs have gone back to her, bearing in mind she was the one saying that they were unexplained and unascertained to understand the potential significance of that?
CHAMBERS: I am -- I'm not sure there was a need to do that because at this time, this was April, middle of April 20 --
DE LA POER: When Dr Hawdon at the end of October told you that there were four unexplained and unascertained deaths we know what she would have said if she was asked because she was asked five months later and she said it was suspicious. My question to you is: should you have gone back to Dr Hawdon when she gave her report to ask: well, what is the potential significance of this?
CHAMBERS: It's difficult -- it's difficult to really answer that because at this -- at April 2017, Mr Harvey, the paediatricians, Nim Subhedar had already arrived at a position that said, whether the number was two, four, it became seven, eight ... that -- at that point it was clear we needed to work out what the best way to answer these questions that seemed to be left unanswered, that led to the meeting on 27 March which then led to the police being involved. So I'm not sure why you feel that it would have been necessary to go back to Jane Hawdon at this
point --
DE LA POER: I am not suggesting at this point --
CHAMBERS: -- because the work -- the work was already being progressed.
DE LA POER: I am certainly it will have been my question. My suggestion was that in November, just after you had received her report, should you have gone back to ask her what the significance of her findings might be?
CHAMBERS: I -- I don't know that that discussion didn't happen. And if it did happen, it would have been with Ian and themselves. I am curious as to how the four babies that we have, that you are referring to here are the same who were -- where the conversations were taken and the investigation was taken to the pathologist at Alder Hey. So I am -- I am not really clear what -- what -- what you are trying to -- what your proposition is.
DE LA POER: I have asked the question twice, I'll try once more. I am suggesting that bearing in mind that Dr Hawdon said that four babies were unexplained and unascertained, the Executive Directors should have gone back to her, at that stage, and said to her: well, what is the suggested or potential significance of this; do you agree or disagree that that's what the Executive
directors should have done in November 2016?
CHAMBERS: Actually the work to try and understand the -- the unascertained causes of death in these four babies was progressing and being taken forward by the Alder Hey pathologist. Perhaps the conversation that has been played out in this email could have -- could have been played out sooner. I'm not sure it would have changed anything.
DE LA POER: If you had been told by a Consultant neonatologist that more than one unexplained death is suspicious, that wouldn't have immediately caused you to say: I think we have reached a threshold to go to the police, that is what you are saying when you are saying it wouldn't make a difference?
CHAMBERS: It's well, I -- I -- I hadn't seen these things so it's really difficult for me to make any -- any, any particular comment in -- in -- in the light of -- I can only comment on the matters that I was aware of at the time. I was -- I was clear, we -- we knew that there was four babies whose deaths had been unascertained and that was what we were exploring with the Alder Hey pathologist. The -- whether that was, whether Ian had specifically asked the question around how unusual that was, I can't comment.
DE LA POER: We are going to --
CHAMBERS: But nothing -- nothing at all that was coming from the -- from Jane Hawdon's review and the pathology review was pointing to anything suspicious.
DE LA POER: Well, the amount of significance that can be ascribed to that is a matter of factual dispute because it depends on whether she knew about the concerns about Letby. But we are going to move on to the board meeting?
CHAMBERS: So can I respond to that, please?
DE LA POER: I --
CHAMBERS: It -- it's -- that is a fair challenge on -- in one respect but to be -- in the spirit of trying to keep an open mind it was not unreasonable to ask Dr Hawdon to do -- to do the review with just the case notes that she had rather than in -- in a sense leading her to a particular point. We were hoping that these concerns would be -- would be -- would come out through the course of the review.
DE LA POER: We are now going to turn to the board meeting on 10 January. We are staying with the RCPCH so we are focusing on what's said there. INQ0003237 and we are going to the bottom of page 1, please. Now, this is a meeting which, as we understand it,
the report was handed out to the people in the room at the start of the meeting. Does that accord with your recollection?
CHAMBERS: I -- I don't know.
DE LA POER: Well, let's see what Mr Harvey says about it. Right at the bottom we can see the sentence starts: "The Review Team made ..." "Over the page, please: "... a number of recommendations although nothing immediate." We have just looked at the fact that were six immediate recommendations, that was a false statement, wasn't it?
CHAMBERS: Sorry, what was a false statement?
DE LA POER: That the RCPCH made a number of recommendations, although nothing immediate?
CHAMBERS: I'm not sure I agree with, I think that's a fair statement.
DE LA POER: You don't -- you don't think that the RCPCH made any recommendations which are headed "Immediate recommendations"?
CHAMBERS: One recommendation was for the in-depth review to be commissioned which I would have seen as the immediate recommendation.
DE LA POER: Well, the first statement is nothing
immediate, but there were six immediate recommendations weren't there? Didn't you know this?
CHAMBERS: There were six recommendations. The -- whether they were it's -- it's -- it's important to understand when -- when you have reviews, like you have with the CQC, an immediate recommendation is one that you take action on that day, where there's an immediate patient safety risk. There was nothing in the Royal College review that I felt fell into that kind of category.
DE LA POER: So although there was a heading "Recommendations immediate" you didn't think that they were immediate recommendations?
CHAMBERS: It's -- it's -- it's -- I suppose it is a bit semantics. An immediate recommendation is one that requires immediate action where there is an immediate patient safety risk, it's almost one where -- where there are examples where the CQC come in, and they review -- they see something and they almost, you know, press the stop button. I didn't read those recommendations in that way. But that isn't to suggest that they were not recommendations that needed to be dealt with promptly.
DE LA POER: In line 5: "In one of the cases the cause of death is
unascertained which is not uncommon." In fact, at this stage, Dr Hawdon had identified four unexplained and unascertained cases, hadn't she?
CHAMBERS: Sorry, where are we now?
DE LA POER: Five lines down, end of the line: "In one of the cases the cause of death is unascertained which is not uncommon."
CHAMBERS: Okay.
DE LA POER: Dr Hawdon had identified four cases, hadn't she?
CHAMBERS: And the four, as I understand it here, were the ones that Ian is making reference to; that they were -- sorry, I will put my glasses back on: "Alder Hey will undertake a review into these causes of death."
DE LA POER: And page 2, bottom of the first paragraph: "The case reviews very much reinforce what is in the review. It comes down to issues of leadership, escalation, timely intervention and does not highlight any single individual." Now, you have already agreed with me that the review does not suggest that there is a leadership problem. You said it was well led. That's what the take-away from the review is. Why are the board being told that the review has identified an issue of leadership?
CHAMBERS: The -- the review pointed to sometimes difficult relationships between the doctors and the nurses on the unit. It made references to delays in and fear around being able to seek support from Consultants out of hours; that was what was -- as I understand was a comment from some of the juniors. So there were some -- there were some leadership challenges there. The -- but you didn't allow me to go back to my witness statement, which would have --
LADY JUSTICE THIRLWALL: No, you are going to be allowed to do that. It was just we didn't have time to find the page.
CHAMBERS: Yes, but it dealt, it sort of -- but it just sort of -- it captures this and that is that I don't believe that the Royal College answered all the questions that we had said and that is what is said in my witness statement. But what it goes on to say is that -- but it was helpful and gradually moving us into a -- into the right direction.
MR DE LA POER: We don't need to look at every reference, unless you require it, but on three separate occasions the board are told that what it comes down to is, among other things, leadership in circumstances
where, as you have agreed with me what the report was saying was it was a well -- overall it was a well-led unit. That's what -- the message that's being given to the board a number of times was that the Executives seeking to discredit the Consultants by misrepresenting --
CHAMBERS: No, no.
DE LA POER: -- what the report actually said?
CHAMBERS: No, I don't -- I don't believe it was. I mean it was just drawing out a range of -- of comments that had come from the Royal College review. Just at the start of this -- this -- this theme here you said that the -- the report was tabled at the start of this meeting.
DE LA POER: This is what we understand --
CHAMBERS: Is it this report or the Royal College report because my understanding is the Royal College report had been shared with the board in advance of this meeting?
DE LA POER: So your understanding -- that is what I was seeking to elicit your evidence --
CHAMBERS: Yes.
DE LA POER: -- that we have received evidence that it was tabled at this meeting. But it's your recollection that it was provided in advance?
CHAMBERS: Yes, I -- I -- yes. It was never our practice to -- it's very discourteous to do that sort of thing to the board. And it may be that we wouldn't have -- they may only have had it one or two days before and it's -- it's quite possible that this paper was tabled on the day. But again it wasn't our practice because it's, it's -- it's discourteous. People need time to read and reflect.
DE LA POER: So as you have raised it, at the meeting on 26 January where the Royal College report was spoken about but had not been provided to those present, would you put that in the category of discourteous?
CHAMBERS: I -- on reflection, I think it was wrong that we hadn't shared it before. We were very keen that we wanted to have a meeting to discuss the Royal College review, but also we were conscious that that we wanted to share the document, the Royal College review, with all internal and external partners, stakeholders, you know, at the same time, including the Families.
DE LA POER: So 3 February was when that report was published which meant that the Execs had had it since 28 November, you have already agreed that it contains a number of patient safety recommendations to external bodies who won't know anything about those until you release the report.
Do you agree that by delaying the publication of that report until the beginning of February, that patients were put at risk?
CHAMBERS: I don't think they were. The -- the -- the recommendations -- about things like the transport was well-known and well understood within the Neonatal Network and I don't think there was anything in the report that wouldn't have been familiar.
DE LA POER: Well, what about the fact that the doctors on the unit were not following the SUDiC process, which was one of the recommendations that was made? Didn't they all, all of them, need to know as soon as possible in case there was a Sudden and Unexpected Death and they failed to follow the right protocol?
CHAMBERS: I think that's fair. I and that perhaps was an oversight.
DE LA POER: Well, I am not going to go through it forensically. But the overall effect of not providing that report for the length of time that it was held by the Execs, do you agree, it put patients at risk, at unnecessary risk?
CHAMBERS: I don't think it put them under unnecessary risk. We had daily management arrangements in place. We knew what was going on in the unit and so we had good oversight. Patient safety was absolutely the focus.
DE LA POER: Part 5: your meetings with Letby. You met with Letby on 22 December of 2016, a meeting attended by her parents as well, is that correct?
CHAMBERS: That is correct, yes.
DE LA POER: We are going to look at some of the things that you said.
CHAMBERS: Okay.
DE LA POER: INQ0003463. At the centre of the page in the middle of the large paragraph, this is you: "The second point is the explanation that the only reasonable cause was mischievous behaviour, but we never accepted this ..." Is that something that you said?
CHAMBERS: Possibly, and we never accepted it as the only reasonable explanation.
DE LA POER: Further down, at the end of that paragraph: "Unsubstantiated claims were made that the only common link was that Lucy was on duty." Do you agree that that is not an accurate characterisation of what the Consultants had told you?
CHAMBERS: What the Consultants told us at the time was circumstance and gut feeling and a circumstantial link with a member of staff, who seemed to be on duty more times than others. I think it broadly is the same.
DE LA POER: We've been through all of this. You have accepted that they gave their expert opinion to you about various aspects of what was happening on the unit and that that was the context for saying that: having tried to identify every other cause, we are left only with this, which is why we think it is a real possibility. That was what they were saying?
CHAMBERS: Yes. And you're characterising the whole of the conversations that went on in June and July, including the board meeting that was had, that was a very open discussion, you're boiling that down to the very first meeting on 29 June. There were many, many meetings that happened after that that would have explored these concerns, these issues. What, what -- the only thing we knew for certain, the only thing that we all agreed on at the time is that none of us really knew what was going on.
DE LA POER: Well --
CHAMBERS: None of us really knew what the causes of death were.
DE LA POER: We are not going to go over all of that again. Let's look at page 2 in the centre. You say: "We are within our rights to phone the police but we didn't believe it."
Did you say that?
CHAMBERS: I don't know if I said that, but I perhaps would have said something to that effect, that, we -- you know, clearly we were -- we could have phoned the police but on balance we wanted to try and understand what the other causes might be for the unexplained increase in mortality.
DE LA POER: The large paragraph, second part of it: "We now want to work with you to make sure you transition safely and successfully back to the unit." So you were telling Letby she was going back to the unit?
CHAMBERS: There was the grievance hearing as you know, there was the letter from Ann Weatherley that you know, and we can go to the letter from Ann Weatherley if you like, but in the recommendations from the grievance one of those recommendations was that subject to the completion of all the enquiries and subject to you not being, if you like, called out in -- from these enquiries the Trust should begin to explore your return to the unit and, and this was in effect a shorthand for that.
DE LA POER: You were telling her in that meeting she was going back, weren't you?
CHAMBERS: No. No.
DE LA POER: Isn't that what it means?
CHAMBERS: No, I don't -- I -- I -- I was saying that ... This meeting is -- it's worth reminding ourselves what this meeting was about. This was a meeting following the grievance where there had been -- where the grievance had been upheld and the -- Letby's family it's fair to say were very upset and very angry about how they felt she had been treated unfairly by the Trust. I'm prepared to accept that we had not been as open and honest with her at the time. As you can see when you read the notes from this meeting Letby's father was very angry. He was making threats. He was making threats that would have just made an already difficult situation even worse by threatening GMC referrals for the doctors, he was threatening guns to my head and all sorts of things. So what I was trying to do here, perhaps very clumsily -- and I suppose right at the start of this session, not this session, the first session, where you asked were there any reflections of where you maybe hadn't got things right, I think the handling of this meeting was probably one of those.
DE LA POER: My question was: isn't that what those words mean?
CHAMBERS: Say again, sorry?
DE LA POER: Isn't that what those words mean; that she is going back on the unit?
CHAMBERS: And the outcome of the grievance was clear about that, subject to the caveats that I outlined.
DE LA POER: Page 4, one-third of the way down. A comment made by Mr Harvey, which we will need to have to give context to what's said later. A third of the way down, the second sentence: "Part of this sharing is us as an organisation drawing a line. Anyone steps over that, full disciplinary policy may be used." So what Letby is being told in this meeting is now the report has been shared, a line is being drawn and if anybody continues to talk about this, disciplinary process.
CHAMBERS: No.
DE LA POER: Isn't that what that means?
CHAMBERS: No, not at all. The, the reference to and there's lots of references to lines being drawn and consequences and so on. But in truth what that related to, the -- was the matters of the grievance and the matters of the grievance were two-fold really: there was the way that the Trust had handled her redeployment and the lack of honesty and transparency around that and
that was why I had been asked to meet with her and her family to apologise. Normally I would never have been in a meeting like this. The second was in relation to areas where there had been allegations of derogatory language and so on, where -- you know, fell below the values of the organisation. So the line being drawn was on the matters of the grievance, not on the matters of the investigations into unexplained increases in mortality.
DE LA POER: Two-thirds of the way down, you: "We had unexpected deaths. We have received an explanation by expert reviews." You had not, in fact, received an explanation --
CHAMBERS: No.
DE LA POER: -- had you?
CHAMBERS: Again, as I said, when I reflected at the start of this session this was one area if I'd have -- if I'd have -- I perhaps should have called out where I didn't get the communications right. And the reason for this was not in any way to trivialise, was not in any way to, to be anything other than trying to take the heat out of what was increasingly a difficult relationship with her father, particularly. And we have heard evidence from Sue Hodkinson yesterday about some of -- how threatening
that became for Kathryn de Berger.
DE LA POER: Page 6, one-third of the way down. You: "Your resilience, Lucy, you astound me."
CHAMBERS: Yes.
DE LA POER: Did you --
CHAMBERS: I say, I say it twice.
DE LA POER: Yes. Have you ever made such a statement in relation to the Consultants for the bravery that they showed when trying to speak out to keep babies safe?
CHAMBERS: Yes, in many of the meetings that took place in June, July 2016. If you look at the notes all of the meeting notes at the end make a reference to thanking everybody for their contributions, thanking everybody for their open and candid contributions to the discussions and a very clear statement about: These matters are really difficult, let's take care and look after each other.
DE LA POER: It was specifically about the courage that they had shown?
CHAMBERS: Yes.
DE LA POER: Page 6, halfway down, bottom of the big paragraph: "Our commitment is now to meet with the Consultants to get you back on the unit and meet with you again in the future."
CHAMBERS: Yes.
DE LA POER: You were giving her a commitment that she was going back on the unit, weren't you?
CHAMBERS: I was -- I was -- as I have said, the handling of this meeting was perhaps not as good as it could be. But the spirit of the grievance, outcome of the grievance was that subject to all of the things I'd already explained being completed that you should be returned to the unit. So it was in the spirit of that.
DE LA POER: Did you give them a commitment at the meeting?
CHAMBERS: Say again, sorry?
DE LA POER: Did you give them a commitment at the meeting that she would be back on the unit?
CHAMBERS: I gave them a commitment, I suppose, at the meeting that we would take forward the recommendations from the grievance process.
DE LA POER: Well, what the words say is: your commitment now to meet with the consultants "... get you back on the unit." That is a commitment to get her back?
CHAMBERS: And, and -- and that, you know, again at that time we hadn't completed everything. I was not able to give that commitment. But it was necessary -- it was, it was in the spirit of the, the letter of the grievance that said subject to satisfactory completion of all the reviews, and you not being called out. So it was, it was consistent with that.
DE LA POER: Given what you have said, my Lady, I wonder if I can do one very short document following this because it's relevant to the answer which we have been given. I note the time, but it will sit better here than at the start of the next session, if that's possible.
LADY JUSTICE THIRLWALL: Yes, all right.
MR DE LA POER: The meeting on 30 December 2016. INQ0004299, page 2. This is a meeting of the directors, the Executive directors and we can see one-third of the way down: "Difficult meeting with Lucy and family. Commitment to them at the meeting." So you there appear to be talking in terms about the fact that you were aware that you had made a commitment and you go on to say, according to the record: "Exposed in the meeting somewhat." So you appear to be recognising, do you agree, that just a few days later, you had made her a commitment?
CHAMBERS: I think the commitment to them in the meeting was that we would share with the board the letter of her statement that she had shared with us at that meeting and I think that was the relation, that was in respect of the commitment.
MR DE LA POER: My Lady, would that now be a convenient moment.
LADY JUSTICE THIRLWALL: Yes, certainly. Mr Chambers, somebody has been working hard downstairs to find the paragraph references for you and we think they are between paragraphs 350 and 356 and 355 in particular. So you can look at that.
CHAMBERS: Sorry, 315?
LADY JUSTICE THIRLWALL: Between 3-5-0 and 356, 355 being the relevant one. I'm not going to ask you about it now, but you will have a chance to look at it over the break and we can come back to that at a convenient moment this afternoon.
CHAMBERS: I'm so grateful. Thank you.
LADY JUSTICE THIRLWALL: So we will start again at 5 past 2.
(1.08 pm)
(The luncheon adjournment)
(2.04 pm)
LADY JUSTICE THIRLWALL: Mr De La Poer.
MR DE LA POER: Mr Chambers, in the morning session just before lunch, I asked you a question. My question, we have looked back on the transcript, was this: does it come to this the RCPCH report did not provide an answer to the increase -- for the increase in mortality?
At that point you indicated that you had dealt with the matter in your witness statement and would like to refer to it. So the first question is have you had a chance over lunch to look through your witness statement?
CHAMBERS: I -- I have. We don't need to draw it out now. We can bring it out in written evidence if that's helpful or ...
DE LA POER: Well, is there -- in terms of the question that I have asked you, and suggested to you that what it came to was that the RCPCH report did not provide an answer for the increase in neonatal mortality, having had a chance to refresh your memory from your statement, is that a question that you can agree with or disagree with?
CHAMBERS: I'll read 355 of my witness statement. It is just a short paragraph and that hopefully will resolve the issue.
DE LA POER: If you just pause for one moment. 355?
CHAMBERS: 355.
DE LA POER: Do you have a page reference for that?
CHAMBERS: It's page 101.
DE LA POER: Thank you very much indeed, yes.
CHAMBERS: Is that okay?
LADY JUSTICE THIRLWALL: Yes, go ahead.
CHAMBERS: Oh, thank you. So: "I was conscious that given the issues identified within the leadership of the unit, including in relation to not following incident reporting processes and not having suitable processes in place to ensure timely escalation, the report was going to be a difficult read for Dr Brearey and Dr Jayaram. I was also mindful of the comments in the report about the Consultants' allegations being based on a 'gut feeling' and that the RCPCH had not alluded to any further evidence of wrongdoing on the part of Letby or any other [members of] staff ..." So: "At the time I did not feel that the RCPCH Review had addressed all the concerns but I did feel that we were moving towards a position where we had a better understanding of all the factors which may have contributed. I felt it was positive that with the Consultants' assistance we could start to address the issues highlighted to us."
DE LA POER: Thank you. We no doubt will come back to the RCPCH shortly. But we were dealing with the topic of your meetings with Letby and we had dealt with your meeting in December. There is also a meeting on 6 February of 2017 and the INQ for that is INQ0014279. We are just going to pick out some of the things that Letby was saying in the first instance. Do you see towards the bottom that a conversation begins about who the apology is going to be from?
CHAMBERS: Yes.
DE LA POER: If we go over the page, we will see what Letby then says: "I expect four apologies." Now, did you feel in this meeting that Letby was trying to take control of what was going on?
CHAMBERS: I think that was an attempt on her -- on her behalf, yes, I think she was. There's no doubt she felt incredibly aggrieved and perhaps this was her moment to have the -- her matters of grievance properly aired. So I think there was an element where -- where that may have been the case.
DE LA POER: Of course if we now bring hindsight into it, which you didn't have at the time --
CHAMBERS: Yes.
DE LA POER: -- she is sitting there knowing the crimes that she had committed?
CHAMBERS: Yes, correct.
DE LA POER: Would you agree, as someone who was present at the meeting, that that was deeply manipulative
behaviour, using the benefit of hindsight?
CHAMBERS: Yes, I -- I have to say I didn't feel like I was being manipulated at the time. In the benefit of hindsight, it's fair to say I have never really reflected on it in that way. I -- I -- I really don't know. It was her father that seemed to be pulling the strings as opposed to Letby herself.
DE LA POER: Well, we will come back to what Letby is saying about apologies in a moment just to work through it in order. If we just go to page 3, just to deal with something that you say. In the large paragraph towards the top, what you are recorded as saying is: "We have made it clear we support the nursing medical team." Now, just so that we are clear about that, are you talking about both the nursing team and the team of doctors when you say that?
CHAMBERS: Yes, yes.
DE LA POER: Then you say this: "All support your transition back." Now was it true that the medical team supported her transition back?
CHAMBERS: It's true that we had had a conversation with
them at the meeting earlier in January. It was true that we had shared with them the -- the outcomes of the board meeting that there had been earlier that month and it was true, as far as I was aware at that point, that they -- after those, after the meeting with the Consultants they were, I was I wouldn't say comfortable, is -- is -- is the right word but they recognised that an apology letter was something that would be helpful. They had been guided by Dr Tighe, I think, in terms of -- in terms of -- well, if that takes the way of any perceived threat of a GMC, let's just do it. So I think -- and in terms of the transition back to the unit, we -- we -- we hadn't got into any specific planning about that.
DE LA POER: If we just have a look -- my question was: was it true to the doctors supported her transition back?
CHAMBERS: Yes, I -- I think in -- in truth that's definitely an overstatement of the position.
DE LA POER: Now, let's return to Letby's behaviour in this. We can see after Mr Harvey makes an assertion in the middle in relation to Dr Brearey and Dr Jayaram, Letby raises Dr V and Dr McCormack?
CHAMBERS: Yes.
DE LA POER: Now, Dr McCormack hadn't participated in the
grievance process. Again, did you think that looking back on it that this is her seeking to manipulate and control the situation?
CHAMBERS: I again didn't view it that way. I hadn't seen all of the detail of the grievance. It was not appropriate that I should. All I had had was the grievance outcome letter from Ann Weatherley, so I had no reason at this time to doubt that Dr McCormack had been involved in some way in the grievance and I -- had I have known, I would have challenged that statement.
DE LA POER: Well, you see, what you do in fact say, five lines up from the bottom, the last sentence is, you tell Letby: "We will get an apology from Jim." That's Dr Jim McCormack. So what you are telling Letby, after she said "well, I want an apology from Dr McCormack" is that you will get one for her?
CHAMBERS: Well, that's how it's written here. I -- in truth there would have been a conversation with Jim about how he felt about offering an apology. I don't think the note as it's written there it, it would have been quite so blunt. And I do know that Ian did speak to Mr McCormack and he did write a fairly neutral apology note.
DE LA POER: Bearing in mind that you didn't even know what it was that Dr McCormack had done?
CHAMBERS: In truth, I didn't know the specifics of what any of the Consultants had done.
DE LA POER: No, but in those circumstances, should you not have been saying: well, I will find out more about Dr McCormack and we will see whether it's appropriate for him to apologise as opposed to, however it was expressed, the sentiment is "We will get Dr McCormack to apologise to you"?
CHAMBERS: Yes. And I don't want to repeat, but I've already conceded that this is a point that I know I didn't get right.
DE LA POER: If we go to page 5, the bottom third of the page, we can see that there is a discussion here about Letby not wanting anything on her record. Again, just at the time, was this something that you -- that struck you as being her inappropriately trying to control the situation, or did you think that this was normal and appropriate?
CHAMBERS: To be honest, I -- any -- any nurse that would have been through some process like this, where they had been removed or there had been some sort of action, it would not at all be unreasonable for them to want to be clear what this would have meant in terms of their personnel record. So I didn't necessarily see anything
particularly problematic there.
DE LA POER: You see, what you say ahead of that is at the top, you are talking about the reviews with lots of learning for everyone and you say: it's only vindicated you. That's what's recorded there.
CHAMBERS: Well --
DE LA POER: So --
CHAMBERS: -- only in so much as the grievance hearings had been upheld and so far the reviews that we had had hadn't pointed to any -- any unnatural causes.
DE LA POER: Well, the RCPCH had said that they could not investigate whether Letby was responsible, didn't they?
CHAMBERS: The RCPCH as I said provided reassurance as to part of the question and moving us into -- into a place where we had a better understanding. But I would never argue that it had given us all the understanding. That's just Jane Hawdon and the other reviews had been undertaken.
DE LA POER: As a matter of ordinary language the RCPCH report did not vindicate Letby because it didn't investigate her?
CHAMBERS: No, it didn't investigate her, correct.
DE LA POER: Dr Hawdon did not vindicate Letby because it did not investigate Letby?
CHAMBERS: In so much -- it didn't vindicate her, but it
also didn't point at any unnatural causes.
DE LA POER: Well, I am just inviting you to consider the possibility, because there is a difference between the two as you have accepted --
CHAMBERS: Yes, I.
DE LA POER: -- that perhaps in your mind at the time you were taking the approach that she had been vindicated --
CHAMBERS: No --
DE LA POER: -- when in fact that was not the case?
CHAMBERS: No, I mean, in my mind I was very clear what the process was, what the grievance was and what the investigations were. I was also -- as I've I think on three occasions now recognised that in handling these meetings with Letby, I was very conscious to try as much as possible to avoid further escalation from -- particularly from her father. Her father wasn't at this meeting, but you got a sense of his presence.
DE LA POER: Does your wish to avoid escalation involve you being prepared to say things which weren't correct?
CHAMBERS: That were in -- in effect a misinterpretation of the outcome of the grievance and what Hawdon review, et cetera, had arrived at in terms of identifying unnatural causes, so only natural causes for death.
DE LA POER: Go to page 6, at the top. You said that the previous record about "we will get an apology from Jim"
may have been not an accurate transcription of what you said. We can see here: "We will get an apology from all."
CHAMBERS: Yes.
DE LA POER: Do you think that is something that you said to Letby; that you would get an apology from everybody who --
CHAMBERS: Well, I think it -- I think earlier in the meeting I think that was already a position that had been agreed upon.
DE LA POER: Well, wasn't it a matter for the Consultants whether they wished to apologise?
CHAMBERS: I think the -- I don't -- I don't know how we had moved from individual apologies to an apology for all. I can only assume that was something that had been done through a conversation with Ian Harvey and the Consultants themselves. It felt to be a less -- I don't know, less personal.
DE LA POER: Page 7, the fourth to last entry. Last sentence: "Lucy, don't worry, we have got your back."
CHAMBERS: Yes. Clumsy language. The -- it is -- I have said all along the -- the intention here was to avoid any possible escalation and eight years on with what we know and we look at this, these are the kind of things that you know you didn't get right.
DE LA POER: If it was an attempt by Letby to take control and get what she wanted, to go on the offensive, she succeeded in recruiting you to that; do you agree?
CHAMBERS: No, I don't think so at all. I think she'd -- my -- my take on all of this is the only thing that Letby wanted was something that acknowledged that she had been treated unfairly and she sought no other redress that I was aware of, other than at some point, subject to all of the plans and processes, to get back to her job that she really loved.
DE LA POER: My next topic is the CQC. It will be a brief one. There was a meeting on 17 February 2017 which you attended with the CQC, do you know the one that I am speaking about?
CHAMBERS: I think so, yes.
DE LA POER: Again we can put it up on screen --
CHAMBERS: Yes.
DE LA POER: -- if we need to. In fact, if you would like me to do that, we will. INQ0014405. Now, what is said about the neonatal services appears there on that first page and it's more what isn't there, Mr Chambers, rather than what is, that
I want to ask you about. So just remind yourself of what was said. (Pause)
CHAMBERS: Okay.
DE LA POER: The context -- we will look at the detail of this letter -- was that on 10 February the Consultants had written to you and in that letter they had made some observations to you about Dr Hawdon's report, for example, and the fact that she thought there were four cases that required review and they had made it very clear in this a letter, as we will come to, that they were worried about patient safety. Now, that isn't what they had identified in Dr Hawdon's report as being an outstanding enquiry and the fact that they were just a few days earlier to this meeting saying that they were still very concerned, notwithstanding the outcome of the reports. Neither of those things appear to have been reported to the CQC. My question is: firstly, were they reported to the CQC?
CHAMBERS: Well, the concerns raised by the Consultants around increased mortality, unexpected collapses, the CQC, were -- were absolutely aware of at this time. The relationship between a single member of staff and the -- who appeared to be rota'd on shift more than
any other -- I don't know whether that had been shared with the CQC at this time. And it -- it kind of goes to the point really that Sir Robert Francis made in -- in his evidence, you know, in respect of this very difficult balance between the duty of candour to whoever -- whether that's the family or to or external partners, regulators and so on, and the duty of care to an individual and that's a very difficult balance to tread. So this note I think was -- was an attempt to tread that balance. In terms of the updates as to where we were in terms of the completion of trying to -- the investigations into the causes of the increased mortality, we were very -- we were very early in those conversations with -- with -- with -- with the -- with the doctors. I am aware of the letter that you are referring to. I am also aware of the conversations that Mr Harvey had with them and the network colleagues following those meetings. So it isn't reflected in this note, but I don't feel that well it's not reflected in the note.
DE LA POER: Should they, the CQC, have been told that Dr Hawdon had four cases that were identified as outstanding, which you were in discussion with the
Consultants about further investigation?
CHAMBERS: I'm pretty sure -- whilst I don't remember the specifics of the, of the meeting, I can see no reason at all why we wouldn't have shared with the CQC the outcome of Jane Hawdon's review. I -- and that there were four cases that that we were unascertained, unexplained and that we were seeking, and had sought, help from the Alder Hey pathologist. I can see nothing problematic about sharing that with the CQC and -- and we may well have done.
DE LA POER: So this is right then, based on what you have told us no good reason not to say that, no record of it being said?
CHAMBERS: Yes, I think that's right.
DE LA POER: Thank you, we can take that down. My next topic is Dr Jayaram's disclosure on 16 March, in fact it was 15 March, discussed at a meeting on 16 March?
CHAMBERS: Yes.
DE LA POER: And in summary -- we can look at the detail of the note, but in fact I am going to ask more general questions than that. In summary you were told by Sue Hodkinson that Dr Jayaram in a meeting with her the day before had disclosed three particular cases and the note of that meeting refers to one involving a valve?
CHAMBERS: Yes.
DE LA POER: And the reaction in the notes included Alison Kelly saying "Why now serious allegation?" And you saying "Letby can't go back on to the unit now" and Alison Kelly saying "challenge why not?" So that's the disclosure and we have received evidence about that?
CHAMBERS: Yes.
DE LA POER: What you say in your witness statement is that you regarded that as being a very serious matter?
CHAMBERS: (Nods)
DE LA POER: And that you went to speak to Dr Jayaram about it?
CHAMBERS: Yes.
DE LA POER: So what is important for us to understand is, did you establish from Dr Jayaram, in that meeting that you had with him as a result of this, what his concerns were and why he had raised those three cases?
CHAMBERS: Yes.
DE LA POER: So tell us, please, about that meeting with Dr Jayaram?
CHAMBERS: Okay. It's -- it was a very short meeting. I -- we'd not if you like formally tried to diary a meeting. I had been made aware of these matters at our weekly Executive Directors Group, which on that time
fortuitously was the day after, so it was the 16th. Immediately after that meeting, I said to Sue: well, let's just go and see -- let's see if -- if Dr Jayaram and/or Dr Brearey are available to have a chat. We -- I don't remember Dr Brearey being around but I do remember briefly having a conversation with Ravi in his office. He seemed surprised. In his notes to the -- the notes that he did to Facere Melius he -- he makes a short reference to this meeting. The conversation that we had at the time was there was this -- there was a range of things that, that Sue Hodkinson had said. She talked about these -- this news about the conduct of -- potentially the conduct of Lucy in respect of Baby K [Child K] and -- but also that he was demonstrating, you know, real high levels of anxiety and not surprising really given all that was going on. So there was -- there was two bits to the conversation, really, was, you know, just -- just Ravi, tell me, is, you know, is there anything I need to know, any news of that sort? I wasn't very specific in the question I wanted it to keep it quite open but also, more importantly, how are you? How are you feeling? And aware that we had exchanged letters and that he -- he'd had ongoing concerns around how these matters
were being managed and resolved and where we left it, rather than getting into a very detailed conversation, because we just -- he didn't have the time and -- and is that led to the meeting on 27 March. So just to be clear, the 27 March meeting, there was two, if you like, reasons as to why -- why that meeting happened, one was to get to the bottom of the -- of the -- the matters of trying to explain the causes, but also to pick up with Ravi these, these concerns. At that meeting on the 27th, I very deliberately asked the question: are we now saying is there criminality? Leaving a very open question for him to provide an update to what he had seen and heard in what was a safe environment because there was the network there, there was Sue there, there was Steve Brearey there. He -- he didn't share that with us again. So that's the chronology of that.
DE LA POER: So you never asked him directly about what he had said to Sue Hodkinson to get to the bottom --
CHAMBERS: I didn't.
DE LA POER: -- of what he said?
CHAMBERS: On -- on the day after we didn't have, specifically have the opportunity to do that. It -- it felt very rushed, it was a two-minute thing and I -- to
this day I can't remember why it was an only two-minute thing, but it was. But I knew we would have the opportunity to pick this up very soon at a -- at a meeting that was already in train to -- to get to a position of what the absolute next steps would be, which were the police.
DE LA POER: So you never asked him directly about the three cases that he had told Sue Hodkinson --
CHAMBERS: I don't -- I don't recall asking him directly. I maybe asked him implicitly rather than explicitly.
DE LA POER: Well, he had clearly, as Sue Hodkinson had told you, felt a great deal of reticence about talking about that because what Sue Hodkinson talks about is the fact that he was feeling victimised and bullied and so surely if you wanted to get to the bottom of what he was saying in those circumstances, you needed to go to him in an open and collaborative way and say: I've heard about these three cases, sounds like eye witness evidence. I understand it's been difficult for you to come forward about this. It's very important you tell us about this because that will help us. Wasn't that what you needed to do?
CHAMBERS: I suppose, yes, we -- we could have I could have gone about it in that way. But I also was aware that he had expressed to Sue that he felt that -- perhaps intimidated is too strong a word but he had, he -- I didn't want to put him into a position that he felt that he was being in any way coerced or I just wanted to give him a safe environment to share his concerns --
DE LA POER: You see --
CHAMBERS: -- in an open way.
DE LA POER: We don't see at any subsequent meeting that we have been able to identify of the Executive Directors where this topic is brought up again for you to report back --
CHAMBERS: Yes.
DE LA POER: -- to the meeting, that is not recorded anywhere, do you agree?
CHAMBERS: I -- I too have looked to see where -- the meeting notes were reflecting that, but what I do know is that the matter was very much going to be picked up through the meeting scheduled for the 27 March.
DE LA POER: When Simon Medland was briefed, he wasn't told about that information that had come from Dr Jayaram, was he?
CHAMBERS: I -- yes, I -- I wasn't specifically directly involved in the briefing of Simon Medland. I was -- the briefing with Simon Medland seemed to be more of
a Stephen Cross issue, although I had met Simon prior to the board meeting.
DE LA POER: You had a meeting with him on 4 April?
CHAMBERS: I think so, yes.
DE LA POER: And you didn't raise it there to say: one of the Consultants has raised the fact that he may have eye witness evidence?
CHAMBERS: Yes, and that's right. We had had the meeting on 27 March which led to Simon Medland coming in. There had been a specific question that I had asked and it's in the notes of 27 March, the question was along the lines: are we now saying that this is criminal behaviour or criminality? Leaving it very open for -- for -- for Dr Jayaram to say, yes, I have, I've witnessed it and that's not what he said. He said it's -- the honest answer is we don't know, is what he said.
DE LA POER: So what he told Sue Hodkinson you didn't believe was eye witness evidence or you thought it was eye witness evidence that --
CHAMBERS: I -- I -- I took it on face value as to what it was.
DE LA POER: So eye witness evidence?
CHAMBERS: Yes, but it was not, when it was tested with, with Dr Jayaram, he -- he didn't -- he didn't mention it
again. When he was at the CDOP meeting it wasn't raised there. When he wrote the best points that he shared with the police, it wasn't referenced there.
DE LA POER: Speaking of the police, when you were given the opportunity to put the case at its highest, and we have looked at this already, but we haven't dealt with this point and you said there was no evidence, in fact you tell us now that you had heard and considered that the possibility of eye witness evidence but you didn't tell the police that, why not?
CHAMBERS: What -- to be honest I don't know what we heard. What -- what we -- what we heard was that I think I remember -- I think this is how Sue Hodkinson was, you know ... suggested that the dials on a -- on a ventilator had been moved but wasn't clear about that and -- and there was a baby -- "desaturating" I think was the phrase or something like that, and Letby didn't appear to be doing anything. So it didn't -- it didn't, you know, it -- it -- he had given -- he had been given many opportunities, many opportunities from that meeting on 15 April -- was it April?
DE LA POER: It was March.
CHAMBERS: March, yes, from 15 March through to 17 April,
when he had the first -- when he had the feeling with CDOP, to have raised that. Surely if not raised with me it would have been raised with Nigel Wenham and it wasn't.
DE LA POER: My final question about this bearing in mind that you have raised that you weren't sure what you heard, what we can be sure about from the note, though, was that you took it so seriously or you thought it was so serious was that your immediate reaction was: Letby cannot go back on the ward?
CHAMBERS: Yes.
DE LA POER: So plainly it was highly relevant, whatever it was, to your thinking?
CHAMBERS: I -- I think, I think it just -- there was -- at that time, as we know, there was letters being exchanged between -- between the Consultants and myself, there were ongoing meetings that Ian Harvey was having with the Consultants in respect of trying to finally get to the position on the causes and the -- and the -- if you like, there was -- there was one view that from Hawdon that and McPartland that said we had arrived at an explanation that was not -- and it was only two unascertained. The Consultants themselves had a different view and were struggling to accept the opinions of the pathologist which is fine because these things happen. So we had all of that. The -- the letters exchanging and also this -- this belief that these matters hadn't been fully resolved and needed to be fully resolved and then there was these, these -- the -- the observations that Sue had made based on her conversation with Ravi the day before. That together to me just felt: that's it, we can't return Letby to the unit. I didn't know what we were going to do with Letby at all because still it was -- it -- it -- we needed, we needed help in terms of resolving that but what was clear in my mind, as it was absolutely clear in my mind way back in June 2016, adamant that she had to be removed from the unit, so my position at that, you know to that extent had moved from the recommendations from the grievance.
DE LA POER: I am going to turn now to a board meeting that we have already looked at, but we are going to focus on a different part, INQ0003237, this is the meeting on 10 January. If we go to page 2, the second paragraph, this is what is being said. You have reviewed four cases from Alder Hey and then if you just look down to three lines up from the bottom, what you are telling the board on 10 January:
"There was an unsubstantiated explanation that there was a causal link to an individual. This is not the case and the issues were around leadership and timely clinical interventions."
CHAMBERS: Yes.
DE LA POER: So you are telling the board, in terms, that it was not the case that Letby had caused those deaths?
CHAMBERS: What I was telling the board was that the investigations that we had done to that point had not -- in fact were seeming to be pointing away from deliberate harm and more towards natural or explanation -- in natural causes of death and suggestions from particularly from -- and more, more explicitly from Jane Hawdon that at least in 13 of these babies there had been evidence of sub optimal care and in many, significant sub optimal care. Her view was the -- that would have -- had these been different the outcomes would have been different and that is what we were being told. Not that there was a -- somebody deliberately harming.
DE LA POER: Look at what you say. "This is not the case". That is you telling the board it is not the case that Letby is responsible for the increase in deaths because the run-up to that is there was an unsubstantiated explanation that there was a causal
link to an individual and you are asserting that isn't the case.
CHAMBERS: And what I said to you in answer to that is consistent with that note.
DE LA POER: Well, you have said that the reports were pointing away from it as you read them but they were not saying any of them, Letby is not responsible for any of these deaths?
CHAMBERS: Yes, but what they were not saying as well, what they were also not saying is that there was any evidence of deliberate harm.
DE LA POER: Well, the RCPCH as we have been over already said that they weren't looking for that, they were doing a service review?
CHAMBERS: Correct.
DE LA POER: So that is entirely irrelevant. Dr Hawdon, you appear to -- in a previous answer accepted the possibility that she didn't know that she was looking for harm and all she did was look through case notes. So that was incapable of itself of disproving that Letby was causing harm, so --
CHAMBERS: The -- I -- I struggle, I can see there that there can be a legal set of arguments here. But the -- in my mind at this time, everything that we were being
told by independent experts, independent neonatology experts, not paediatricians who have an interest in neonatology, but independent neonatology experts was that there was no evidence of deliberate harm.
DE LA POER: None of them said: there is no evidence of deliberate harm because they don't, any of them, deal with the question of whether there was deliberate harm?
CHAMBERS: What they said is there was no evidence of -- I -- I -- we would need to go and look at the INQ just to find out exactly what the phrasing was. But my understanding of what I was hearing and being told and reading was that there was nothing pointing to unnatural causes.
DE LA POER: Mr Chambers, do you allow for the possibility that you just misunderstood what the reports were saying?
CHAMBERS: I don't -- I don't think that's -- I don't think that's fair. What I know on reflection would have been something that we perhaps should have done is to have got Jane Hawdon, Dr McPartland and the paediatricians together to thrash this out and we were not able to do that and to be honest, I'm not sure there was an attempt to do that. The requirement to try and get these matters resolved competently and quickly meant that in the pre-Covid world, when we didn't have Teams meetings and all of those kind of things, getting such a meeting together face to face, would have been very, very tricky. That would have been the best way that we could have managed in terms of thrashing this -- these matters out. But that isn't to suggest there was not an attempt to try and get to the bottom of the lack of consensus, if you were, around what Hawdon was saying and what the McPartland was saying and what our Consultants were thinking and then what they were saying to Ian Harvey, with Nim in the period of time from June -- sorry, from January 2017 onwards. This is something that you might want to check with Ian. I -- I haven't got the absolute detail.
DE LA POER: What is undoubtedly the case is that as at 10 January, what Dr Hawdon's report did or didn't mean, what the RCPCH's report did or didn't mean, what Dr McPartland's report did or didn't mean was not the subject of consultation with the experts in the hospital, the paediatricians, was it?
CHAMBERS: We -- we had been listening to the independent experts. We were not -- not listening to our own paediatricians in the hospital. In hindsight, it would have been far better to have got those people together
in a room.
DE LA POER: Before the board received it, so that the board could have the balanced --
CHAMBERS: I -- again it would have -- it would have ideally, yes. But in -- in reality that was not possible.
DE LA POER: It was not possible to provide the Hawdon report and the RCPCH report to the Consultant paediatricians before 10 January?
CHAMBERS: No ideally, yes.
DE LA POER: That was possible?
CHAMBERS: Yes, of course, apologies, I had misunderstood your question.
DE LA POER: Of course, the board having been told that this is not the case, that there is a causal link, they then went on to approve what was proposed to them, that Letby would go back on the unit?
CHAMBERS: Yes.
DE LA POER: Now, had the Consultants come together -- sorry, the Executives come together before this to sequence how it was all going to work, what the board were going to say, what was going to be said to the Consultant paediatricians, all of that sort of thing?
CHAMBERS: Not really. There was a meeting early in the New Year, or in fact it may have been between Christmas
and New Year.
DE LA POER: Shall we have a look at it?
CHAMBERS: Yes.
DE LA POER: INQ0004299, this is the meeting on 30 December, page 3. So you can perhaps help us with -- so two-thirds of the way down, against your initials: "Sequence: Lucy meeting. Board meeting, 10 January, formal acceptance of the review and action plan. Reserve its position on Level 1 or Level 2. Endorse transition of Lucy back to the unit." Then the next bullet in the sequence: "Then meeting with the paediatric Consultants." Were the board told what you said to them about "There was an unsubstantiated explanation, there was no causal link to an individual, this is not the case" in order to procure their agreement to your plan?
CHAMBERS: No, not at all. I think what we presented to the board was -- was our best understanding of the position we found ourselves in at the time. The -- we would never mislead the board, ever mislead the board. And Duncan Nichol was at this meeting, he was fully aware of the discussions that were ongoing. I would have taken guidance by him and, you know, the arrows there down on the right-hand side of the page, you know,
all that represents is a sequence of meetings that would need to be arranged and established and also an outline of what the purpose of those meetings would be. These aren't decisions.
DE LA POER: We are going to move to the question of the management of the Consultants over the timeline, draw your attention to some events within it. You can take that down. The start of this is on 20 July, a meeting, INQ0004330. So just have a look here. There's a discussion about the dashboard and then about six lines down: "TC reluctant to change leadership at present with review in August." So was there a discussion in July of 2016 about changing the leadership of either the paediatric department or the neonatal unit?
CHAMBERS: It looks like there must have been. I don't remember a discussion about it and as you can see I wouldn't have supported any changes at this point. So I -- I can say no more than that.
DE LA POER: It may be that your lack of recollection means you can't answer this question, but what justification was there in July 2016 or potential justification that would lead to a conversation about it about replacing either Dr Brearey or Dr Jayaram?
CHAMBERS: I -- again -- I -- I am struggling to identify any specific issue that would have -- would have required that kind of a conversation. There were, there were -- as we know there had been lack of compliance to Datix reporting, but that had improved. I think it's fair to say at this time the clinicians were -- were not really happy with the downgrading of the unit. They took that quite personally and they saw it as a criticism and when we were doing the weekly monitoring and the dashboard, there had been times where I was made aware that people were pushing really hard against the criteria that had been agreed to try and admit babies that were not compliant with that criteria. So those are the things that may have been going through people's minds. But I didn't believe that any of that was any particular reason why we would need to change reason -- leadership, and why would we?
DE LA POER: Well, it would appear that at least somebody in that meeting thought it appropriate to discuss that?
CHAMBERS: I -- I -- I genuinely don't know. I mean, these are Stephen Cross's notes, aren't they, and quite often with Stephen Cross's notes there are things that seem to pop in them that seem to come from left field
and when I read them I think, I -- I don't recognise that. And this is perhaps -- perhaps one of those. And now he -- and I know it's difficult because we can't -- Stephen isn't going to give evidence but he may have given some insight into that.
DE LA POER: 20 September 2016, an email that Dr Jayaram sent, INQ0003133. We'll look on page 2, please. So it's a very long email, but just to gather the sense of what he is saying here, three lines down at the top: "We do genuinely feel that many decisions regarding our service are being made with no input from us and when communicated and presented to us as a fait accompli ... Hospital at Home, Babygrow ... the 9th post ... feedback from the RCPCH Review ... and the effect of all this I have a group of colleagues who do not feel that they are listened to or valued by the Trust and consequently fear that our relationship with the senior management is breaking down. Morale amongst us is exponentially decreasing." So Dr Jayaram is raising with you his concern about the relationship between senior management and the Consultants in this email and in particular things being presented as a fait accompli?
CHAMBERS: Mmm.
DE LA POER: Now, we are going to come now to the meeting
on 26 January.
CHAMBERS: Do we not want to talk about this?
DE LA POER: Well, I am going to ask you about the meeting of 26 January, is there something --
CHAMBERS: Well, there is context to this letter that's probably important.
DE LA POER: Well, if you think so, then tell us.
CHAMBERS: Okay. So in the letter and in the note there it makes reference to additional Consultant recruitment. It also makes reference to the -- the Babygrow, Hospital at Home and it's worth just -- just recognising this. I met with the Consultants after this letter or maybe this letter came from the meeting I had with them, I can't --
LADY JUSTICE THIRLWALL: It starts off: "Thank you for finding the time to come to meet with us yesterday." So that sounds as though they had met you the previous day, doesn't it?
CHAMBERS: Say again, sorry?
LADY JUSTICE THIRLWALL: It says: "Thank you for finding the time to come to meet with us yesterday."
CHAMBERS: Yes, thank you. So one of the things you find as Chief Exec
unfortunately is that you -- you find yourself apologising for all sorts of things that other people had done that you knew nothing about and this was one of those examples. So in terms of in terms of -- the -- the Hospital at Home service, this was a change that the CCG were implementing that was making -- that was not popular with the Consultants but it wasn't -- but again I had to respond to it and supported them in making representations to the CCG that these plans were perhaps not sensible. In terms of the Babygrow appeal this was an appeal that I launched within the first few weeks of joining the Trust as the Chief Executive. It was very obvious that our neonatal unit needed to be replaced. It was old, it was small, it was dark. The Babygrow appeal was a charity that had been set up and by this time had been running for a number of years. We were hoping to achieve a 3 million target to be able to rebuild the -- the neonatal unit. I walked into this meeting to be -- to be greeted with a group of Consultants who were really quite angry because they had met with I think our Director of Estates the day or two before saying that he had been requested to work out what the possibility of a new neonatal unit would be rather than a build, it would be a refurb because the Babygrow appeal wasn't achieving the financial targets.
LADY JUSTICE THIRLWALL: Is his name Kevin Eccles? was that Kevin Eccles?
CHAMBERS: Yes.
LADY JUSTICE THIRLWALL: Because we have got a paragraph about it in the letter, yes.
CHAMBERS: So and then -- the Consultant paediatrician appointment, the financial context that we were in at the time --
MR DE LA POER: Can I just stop you there Mr Chambers.
CHAMBERS: -- was very challenging.
DE LA POER: There was a simple point to be made about this email which is that what Dr Jayaram has said to you is that as at 20 September, for a number of reasons, all of which I read out on there, there was a breakdown in the relationship or there was a breaking down relationship between the senior management and the Consultants and there was a concern that things were being presented as a fait accompli?
CHAMBERS: And I think what I was trying to explain is quite often these things were presented to me as a fait accompli as well, so I can understand their grumpiness. In that meeting I tried to reassure them
that the Babygrow appeal would continue as it did and that we would rebuild a new neonatal unit, that we would in due course commence with the recruitment of the eighth and ninth Consultant paediatrician. This -- and I followed this letter with the letter of my own and then there was some exchanges and things felt better as a result of that.
DE LA POER: The 26 January meeting.
CHAMBERS: Yes.
DE LA POER: Maintaining the themes that were raised by Dr Jayaram here about relationship breaking down, things being presented as a fait accompli. Is it right that you approached that meeting to present the Consultants with a fait accompli?
CHAMBERS: Can we -- can you put up the meeting so I can be absolutely clear which one we are referring to?
DE LA POER: Yes, of course we are going to look at the detail of it, INQ0003523. And I was just asking you a general question which I would hope you would be able to recall one way or the other once you can remind yourself of which meetings we are talking about --
CHAMBERS: Yes, yes.
DE LA POER: -- about whether or not you approached it intending to present to the Consultants a fait accompli?
CHAMBERS: What -- I remember the meeting now I just
wanted to be sure that it was this meeting. What we were presenting to the Consultants was the -- the view of the board from earlier that month.
DE LA POER: But that -- that board view, just so that we are all clear about it, the one where they had endorsed what you recommended having been told that there was no causal link between the individual; that's the meeting we are talking about?
CHAMBERS: That -- that -- that's the one where I presented, we presented to the board what we believed was our best understanding of the outcomes of the reviews and that there was not any anything pointing towards deliberate harm.
DE LA POER: The paediatricians, who I think you agree as experts in the subject matter should have by now seen both of those reports, you have already told us you think that would have been the better way of doing it?
CHAMBERS: Yes, yes.
DE LA POER: They came into this meeting without having seen either of those reports; is that right?
CHAMBERS: I think that's half right. The -- some of the Consultants as I understand it had seen drafts of the Royal College report. I do not know for certain whether they had had the Hawdon report at this time.
DE LA POER: Well, the evidence is, as the Inquiry currently understands, of the Consultant body Dr Jayaram and Dr Brearey had seen a draft version which according to them they had been given a time limit to look through it of about an hour and that as far as the Hawdon report is concerned, as at this meeting, the evidence the Inquiry has gathered so far indicates that not a single one of the Consultants had seen it?
CHAMBERS: Okay, okay.
DE LA POER: You have candidly accepted they all should have seen it going into the meeting?
CHAMBERS: It would have -- it would have been really helpful, yes.
DE LA POER: Well, it would have meant that it was a discussion rather than you telling them what was in the report?
CHAMBERS: It -- this was, this is an interesting meeting because there -- it -- what I was expecting was that, was a discussion. But I am aware that there had been conversations prior to this meeting between some of the paediatricians, I think Sean Tighe, Dr Tighe, who was the -- the -- in a sense the BMA person and also I think David Semple, one of the -- one of the divisional directors who was an obstetrician who had suggested to them that -- that we as an Executive were looking to blame and that they should just sit on their hands and not say anything. I didn't know any of that, unfortunately. In the meeting, it just felt odd that there was no dialogue and no conversation.
DE LA POER: The meeting was in part to tell them what the Royal College and Dr Hawdon had said, if it's right that only two of them had had some time previously an hour to look at the draft report, hadn't seen the final report, none of them had seen the Hawdon report, it couldn't be a discussion about those topics, could it, whatever the plan beforehand?
CHAMBERS: Yes, okay, yes.
DE LA POER: Now, as you know, you rehearsed them in your statement, different people have different recollections of your behaviour in that -- I am not going to put to you one side or another, I am going to give you an opportunity to answer the allegation that some people have made, that you behaved in an oppressive or overbearing or bullying way in that meeting. I want to give you the opportunity to say whether you recognise that description of yourself?
CHAMBERS: I -- I remember this meeting. I remember it being a very tense meeting and I don't and I didn't really understand why. Only, you know, when I had seen
the disclosures to the Inquiry did it become clear perhaps why. I felt the need to be fairly clear and direct in terms of the outcome, particularly of the grievance, where as we have discussed previously there was allegations that there had been derogatory language used, inappropriate language used and -- and I wanted to be clear that, you know, that didn't meet the values of our organisation and that we needed to not see any -- any further examples of that. I didn't feel that I was raising my voice. I certainly wasn't angry. I felt it -- I behaved professionally, as they did, as everybody in the meeting did and that's my recollection of that meeting.
DE LA POER: Now, something you said on page 2 was about the Speak Out Safely and the fact that that had been professionally managed.
CHAMBERS: Yes.
DE LA POER: Now, the Inquiry has received some evidence from Alison Kelly about it but in terms of the formalities, in fact the Consultants' concerns were not discussed at any Speak Out Safely meeting --
CHAMBERS: Yes.
DE LA POER: -- before this meeting?
CHAMBERS: Yes.
DE LA POER: You have made an assertion about it?
CHAMBERS: Yes.
DE LA POER: Why did you say that?
CHAMBERS: I think -- well, the Speak Out Safely arrangements within the organisation were -- it's fair to say were fairly nascent, they were fairly new, they were something that had been brought in, I think, in late December 2015 so they were still very much embedding. My feeling that -- or, if you like, my -- where I would have taken the evidence that I felt it had been well-managed professionally managed was Consultant concerns had been raised, they had been heard, action had been taken. Letby had been removed because that was seen as one of the potential risk factors and then towards -- to be able to explain any further risk factors or causes we had undertaken independent professional reviews from the College and then Hawdon and you can see -- so that's where I took the -- the -- the -- you know, the reassurance that they had spoken out, we had listened and action had been taken, but I am aware that it wasn't necessarily within the policy.
DE LA POER: Do you think you should have checked before you made an assertion like that?
CHAMBERS: I think, with regret, I should have done. But
actually the -- the actions that we took were probably consistent with what the policy would have guided us to anyway.
DE LA POER: Well, the policy required an allegation of criminality to be referred to the LADO?
CHAMBERS: It may well have done but not every Speak Out Safely is about criminality. It can be about any number of issues of safety. It can be about staffing levels, it can be about equipment, it can be about psychological safety and so on.
DE LA POER: Well, we have already been through that policy with the person who was a designated officer. In this meeting the Consultants were told that Letby was coming back on the unit, weren't they?
CHAMBERS: They were told that the -- that was the outcome from the board meeting, yes.
DE LA POER: Yes. And there was no discussion in this meeting about Dr Hawdon's four cases, was there?
CHAMBERS: This is the point that you drove me -- you pointed me to before lunch in respect of the -- the letters exchanges between myself and the paediatricians in April and the oversight from Ian or the omission from Ian and ...
DE LA POER: Following this meeting, 10 February, the Consultants wrote you a letter and you mentioned it many times, I said we were going to come back to it, INQ0003117. By this time, they had seen both Dr Hawdon's report and all of them the RCPCH report. What they say here about the RCPCH report is that the report identified some areas of clinical care but which we know to be no worse than any other local neonatal unit in the region and correctly identified that over a number of years the neonatal unit has outcomes as good or better than the other local neonatal units based on most national audit standards. So they were making a point about the interpretation of the RCPCH report, do you agree?
CHAMBERS: Yes, they were. Yes.
DE LA POER: At point 2, they say they agree with the conclusion of Dr Hawdon's Casenote Review that four babies who died require a broader forensic review and they go on to say that they are concerned about more than just those identified by Dr Hawdon and express their wish, in the last sentence there, to be keen to learn and improve the care for all. We can go over the page. And offer an opinion that the episodes of care that Dr Hawdon considered sub optimal could explain the rise in neonatal mortality and sudden collapses in the period.
So that's them offering their expert view about what Dr Hawdon has said, agreeing with her about four cases, saying that there are more cases than she was worried about and pointing out that their expert interpretation of her report is that the failings in care doesn't explain the overall increase. So again that's -- for the moment let's just note that that's what they are saying. Is that a fair summary of their position?
CHAMBERS: That is what they wrote.
DE LA POER: Yes. At 3 they acknowledge that: "... postmortem diagnoses have been made in a number of cases but there is considerable doubt about why certain babies collapsed unexpectedly and subsequently did not respond to appropriate resuscitation measures." So what they are doing is they are going beyond what may be apparent on the Casenote Review --
CHAMBERS: Yes, yes.
DE LA POER: -- and they are saying --
CHAMBERS: Yes.
DE LA POER: -- this was our experience and of course that's something they had raised before about babies not responding appropriately to resuscitation?
CHAMBERS: Yes, sure.
DE LA POER: Then 4, they point out the transfer babies and the fact that a number of cases had been identified in relation to deteriorations which was unexplained or unusual. This -- this is a comment upon Dr Gibbs's review, I don't know if you recall but in July of 2016 --
CHAMBERS: Yes, yes.
DE LA POER: -- he did a review, so effectively a proxy of babies who survived collapses --
CHAMBERS: Correct.
DE LA POER: -- to look at that and they are wondering here what happened to Dr Gibbs's review which we have heard from Dr Gibbs, we have seen the notes. He said that there were about six babies that he was concerned about from the cohort he reviewed and it doesn't appear that those findings were formally shared at any point, they are asking about them. Then they make this point: "There have been no deaths or unexpected collapses on the neonatal unit since July 2016. Unwell babies have been cared for, received intensive care and in some cases transferred to other hospitals but their clinical courses have been far more predictable and responsive to treatment than previous cases. This cannot be solely attributed to the redesignation of the neonatal unit or
any other changes in practice that have occurred since then. Some of the babies who collapsed in 2015 and 2016 were born at greater than 32 weeks' gestation and many were not receiving intensive care at the time of their collapses." So there they are drawing your attention, aren't they, to the fact there have been no similar cases --
CHAMBERS: Yes.
DE LA POER: -- since the redesignation and Letby being moved off?
CHAMBERS: Yes.
DE LA POER: They are making what is an expert point about the fact that the redesignation doesn't explain this; do you agree?
CHAMBERS: That's what they have written there, yes.
DE LA POER: Yes. They conclude by saying that they are only asking these questions because patient safety is absolute priority. So let's just ask for your impression of this letter when you received it. Did you regard that as a reasonable letter for them to have written?
CHAMBERS: I did. And I -- I -- I think it was copied into Mr Harvey, I can see that it was and that he was already having these types of conversations, listening to these kind of concerns with them. They also requested at the top this have letter that we share this information with the Coroner --
DE LA POER: Yes.
CHAMBERS: -- which we did. So we listened. We heard. And as you know, subsequently on 27 March, the decision was that we would go to the police.
DE LA POER: Let's remind ourselves, this is 10 February. In terms of the points that they were making, do you point to any of those that you thought at the time were unreasonable or incorrect?
CHAMBERS: I think all of them had points of fact, all of them, all of the points I think -- well, particularly the one around the redesignation of the unit not being the only explanation for the reduction in -- in baby deaths. All I know is that if we had had the criteria for admission at the neonatal unit post, if we had that the revised criteria in the neonatal unit, if we had had that prior to 2016, a lot of the babies that Hawdon had reviewed would in effect not have been on that unit. So it's -- it's fair it say that the -- it's not quite as simple as is described here. But these are fair points.
DE LA POER: They are fair points but you would say it is factually inaccurate or needs further information --
CHAMBERS: I just --
DE LA POER: -- on point 5?
CHAMBERS: It's -- it's an opinion that is -- is -- is understandable because of the amount of criticism that the clinicians would have felt at that time and I didn't think it was, you know, surprising that they would want to push back and we were wanting to listen and learn.
DE LA POER: Mr Chambers, you appear, if I may say so, in that last answer to suggest they are saying this as push-back to criticism as opposed to the fact that that is their --
CHAMBERS: No. I think -- I think it's both of those things.
DE LA POER: Well --
CHAMBERS: It's -- it's clearly -- there's never been a doubt in my mind ever that these doctors had the safety and well-being of babies at their -- at the front of their mind. There's never been a doubt in my mind that we as an Executive Team and a board had the safety in babies at the front of our mind, but as is -- is often the case, and I think Simon Medland talked about it in his evidence when he talked about where you get a misalignment in -- in duties of care, and this -- this is I think just a kind of real world example of that,
which is why absolutely why we took the meeting on the 27th as I outlined at the start of that meeting: it was about if we are not at the position where the board and the organisation has answered these questions, and this is what's inferred here, then what do we need to do to get into the position to answer these questions?
DE LA POER: The 27th, you are referring to 27 March which is five or six weeks after they sent this message; is that the meeting that you are referring to?
CHAMBERS: Yes.
DE LA POER: Let's see what the meeting immediately afterwards says about this letter. INQ0003379, this is the 14th, it begins by saying the letter was hand-delivered by Dr Brearey. You say "seemed to have gone backwards" and Ian Harvey "wondered what they were plotting". Now, is the reality, Mr Chambers, that at this stage, having received what you have characterised today as being a reasonable letter making reasonable points, that the reaction was to become defensive?
CHAMBERS: No, not at all. I seem to have gone backwards is -- is a fair representation of on reading that letter. I thought -- genuinely believed that as of 26 January that we had had a position that said there
were two unascertained and that all the evidence that we were getting from independent specialist advice was pointing away from deliberate harm or unnatural causes. I was aware that the Royal College review had said that the unit seemed to be running better, calmer, safer since the redesignation. And then there's the letter that we have just gone through and I kind of think, well, has the position gone backwards? It felt perhaps it was. Let's go and find out what the position is.
DE LA POER: As at 26 January, as you pointed out, none of the paediatricians had seen any of the --
CHAMBERS: I know, I know.
DE LA POER: -- reports or at least had an opportunity to consider them properly. You haven't addressed the "wondered what they were plotting" which was part of my -- part that I drew your attention to when asking whether this had become defensive?
CHAMBERS: Apologies, it hadn't been bolded out so I had -- I wondered what they were plotting. That looks like it's attributed to a comment that Mr Harvey had made. You are going to have to ask Ian Harvey.
DE LA POER: Well, you were present at the meeting. It doesn't seem to have been the subject of challenge. And the word "plotting", would you agree is generally what you talk about what you do against your enemies?
CHAMBERS: I -- I -- again these are, these are Stephen's notes and quite often he, he captures things that -- that just -- that -- so I -- I don't remember any discussion about plots and they certainly weren't enemies any more than we were the enemies. We were just ordinary people, trying to deal with an extraordinary set of circumstances, with very little or confusing information to hand and we were trying to make the best sense of that whilst the -- the only thing that was an absolute consensus on was that we didn't really know what the absolute causes of harm were -- causes of unexplained death were.
MR DE LA POER: My Lady, I am conscious of how long we have been going in terms of the shorthand writer this afternoon and I wonder if that would be a convenient moment?
LADY JUSTICE THIRLWALL: Yes, we will take 15 minutes. Please come back in just before quarter to.
CHAMBERS: Thank you.
(3.28 pm)
(A short break)
(3.45 pm)
LADY JUSTICE THIRLWALL: Yes.
MR DE LA POER: Mr Chambers, your letter of reply
is dated 16 February, INQ0003159. In the letter, if I may summarise, you tell Dr Jayaram as the addressee of this letter that the Coroner is being informed and having the letter shared and that it's also been shared with the RCPCH and Dr Hawdon, which we see further down. The point they made about the redesignation of the unit, you make an assertion as to the reasons why but you don't engage, do you, with what they said to you in their letter about whether that change in what was being observed could or could not be ascribed to the redesignation?
CHAMBERS: I -- I don't remember it being included in this response.
DE LA POER: We can then see that you at the bottom of the page remind them of the apology and then it's this and the sentence concludes: "... and when you are doing this as action is now being taken to return her to the unit at the earliest possible time." So is this right, Mr Chambers, that having had those five points made to you about what the RCPCH report does and doesn't say, what Dr Hawdon said and the fact that they are concerned that there are more such babies, the fact that they would like to see Dr Gibbs's report, the fact that the redesignation doesn't explain,
your position was in response "Letby is still coming back to the ward"?
CHAMBERS: At that time that was still -- that was still in train but no action had been taken to make it happen but in my mind it was -- at this point in time, there was still going to be plans to move her back to the unit, yes.
DE LA POER: Just considering for a moment. Do you think that you were not listening properly to what the Consultants were saying to you?
CHAMBERS: No, I don't think that's true. I -- we -- we'd been given really strong messages from the Royal College that the unit was calmer, the unit felt safer. What we were not proposing to do was to redesignate the unit back, which is I think something that the Consultants would have been keen to have explored at some point soon. What we were seeking to do was take the recommendations from the board and we were still in the process of exploring how that can be achieved and in that -- in that -- in delivering that the apology letter was an important component and for some of the Consultants also some -- some mediation.
DE LA POER: So the five points that they had made did not cause you to think we ought to think carefully about
whether or not Letby should go back to the unit; is that the position?
CHAMBERS: The -- I don't -- I don't -- I don't think that is a fair -- a fair interpretation of this because as you know that Mr Harvey was continuing these conversations with the -- with the doctors. He was in conversation with the Royal College. He had shared their concerns with Dr Hawdon, there had been suggestions from the College around what was described as confirmatory bias. I'm not suggesting that was at the front of my mind, but clearly there was -- there was more to this than just the points in the paediatricians' letter.
DE LA POER: But when all was said and done, you were still determined at this point to return Letby to the ward; is that right?
CHAMBERS: I -- as it says in there, that there was -- the plans were still being progressed.
DE LA POER: To return her at the earliest possible time?
CHAMBERS: Yes.
DE LA POER: If we go over the page, just so that we consider this. You here point out to them the reviews that were done. We know, and we have already been through that the RCPCH did not consider the question of whether Letby was responsible for the deaths. It may be a matter of fact for the Chair but it may be the fact that Dr Hawdon didn't know about the concerns and you wouldn't have criticised anybody if that was the position. And similarly Dr McPartland. So none of them had expressly dealt with the question: has Letby done this, had they?
CHAMBERS: But all of the advice that they were giving us were pointing away from deliberate harm and they had arrived at those opinions without having to be guided to those opinions. We took those opinions in good faith as they were presented in good faith. I can't say any more.
DE LA POER: Let's just deal with this point of pointing away from deliberate harm; it is a phrase you have used several times. That's your interpretation of them. In fact, none of the reports you receive even uses that phrase, does it?
CHAMBERS: Pointing away from unnatural causes.
DE LA POER: Offering some explanation, potentially, for some of the deaths?
CHAMBERS: Sorry, repeat the question?
DE LA POER: Offering some explanation potentially for some of the deaths; at its highest, that is what they were saying?
CHAMBERS: I think they were saying something stronger. I think they were saying that there was nothing that was pointing towards unnatural causes. They had been given in -- in all but three of the cases there had been causes of deaths attributed either supporting the position that the postmortems had arrived at at the time of death or supporting the -- the reviews of the postmortems that had been undertaken by Alder Hey people. So, I -- I fail to see how being presented with an independent, from an independent neonatologist and an independent pathologist, who hadn't, had arrived at natural causes, therefore excluding unnatural causes, if there is such a phrase, how that is inconsistent with me saying: everything wasn't -- was pointing away from deliberate harm.
DE LA POER: There are two categories of babies, the first in Dr Hawdon's case was unexplained and unascertained, four of them?
CHAMBERS: Yes.
DE LA POER: That's a significant number of children. If we are talking about murder; one is significant, isn't it? In Dr McPartland's case she said two of those four was unexplained, she didn't consider any of the others
and she said in the case of a third that the prior collapse was unexplained. So that's the one category, do you agree that is a fair summary of that category?
CHAMBERS: I'm not sure. I would have to see the notes.
DE LA POER: Well, we have been over a number of times and looked at the notes. If you don't accept that proposition I am not going to press you on the point.
CHAMBERS: Okay, I -- I am not trying to be awkward or, or difficult or avoiding a question. I just don't want to make a statement that I don't feel comfortable that I've got the information to make.
DE LA POER: And it is important that you don't do that.
CHAMBERS: Yes, thank you.
DE LA POER: The other category. Now, we know for example that Dr Jayaram raised the possibility of air embolus explaining, we see that in a note in a meeting. Were you satisfied in your own mind that the possibility that an individual had deliberately administered an air embolism had been carefully looked at by both of the people who had scrutinised this and that they had satisfied themselves that there was no possibility that that was the case?
CHAMBERS: Again, I'm not a pathologist. I cannot offer an opinion around whether air embolus is something what
can be determined from a postmortem or not or you -- I can't answer that question.
DE LA POER: Well, this is what we have forensic pathologists for, among other things, to help with as I think you have told us that you believe you may have had an understanding at the time, although you would have checked that forensic pathologists are there to investigate suspicious deaths. It is an additional specialty requires you to be registered with the Home Office. The point really is this, Mr Chambers: how could you take any real comfort from Dr Hawdon and Dr McPartland if you didn't know whether or not they had specifically investigated the possibility of some nefarious means of bringing about the death?
CHAMBERS: All -- all I can say is we took or I personally took on good faith the advice and the guidance that I had been or we'd been given I -- I had been given as well. In terms of the specifics of that question, I -- I would respectfully suggest you might want to pick that up with one of our medical colleagues, Mr Ian Harvey, perhaps tomorrow.
DE LA POER: Were you deferring to Mr Harvey for your understanding of what these reports did or did not --
CHAMBERS: Yes, I --
DE LA POER: -- mean?
CHAMBERS: I was the Chief Executive, I wasn't the font of all wisdom. I was just somebody who had a responsibility to make sure that voices were heard, questions were asked, concerns were listened to and acted upon, strategies were developed, strategies were delivered and that we had a culture where we were focused on safety. I would have -- for specific expertise, I would have gone to my Director of Nursing, my Medical Director, I would have gone to -- and be guided by that be guided by my director of HR and so on.
DE LA POER: Were either of those subject matter experts experts in neonatology?
CHAMBERS: I don't think there were any experts in neonatology in the hospital.
DE LA POER: Were they experts in paediatrics?
CHAMBERS: Oh, clearly not, no.
DE LA POER: So were the people most likely to know in the hospital the Consultant paediatricians?
CHAMBERS: I think that's right and I think if they had real concerns that these matters hadn't been appropriately investigated, well, they were very able to make those concerns known to us, which they did. We listened. We took action. The 27 March we
brought all of that together, we went to the police.
DE LA POER: You listened, you tell us, but in response to them raising those very points, your response was to say: Letby's coming back on the ward and if they had stopped there, isn't that what would have happened?
CHAMBERS: No. I don't think -- I don't think that was ever going to happen really because later, as we have suggested previously, Dr Jayaram had mentioned his eye witness, if that is the right word, of -- of some kind of failure or nefarious activity or however it was described. He then failed to mention it to anybody else, again. But that was sufficient at that time for me to think: we need to stop any plan for Letby coming back to the unit and exploring what the absolute next steps were.
DE LA POER: My question was about this, the date of your response, that if the paediatricians had stopped here --
CHAMBERS: I just said to you she wouldn't have come back.
DE LA POER: -- here on 16 February, Letby would have gone back on --
CHAMBERS: No, because as I said, that's where events don't stop, do they? So the conversations were continuing, the -- the discussions were ongoing and it was becoming less and less -- there was less and less
consensus as to what we -- what we felt were the causes to these unexplained harm. So at that point -- so there was never going to be a point that Letby would have come back had those discussions that were ongoing not been ongoing. Sorry, if they -- if those had stopped, then perhaps, perhaps things would have been different. But they were continuing, they were continuing in a professional way. We were listening, we were open.
DE LA POER: We can take that down. Were you aware at the time that on 1 March, Mr Harvey sent emails to Dr Jayaram and Dr Brearey warning them of the risk of referral to the GMC?
CHAMBERS: I'm not aware of that.
DE LA POER: You weren't aware of that at the time?
CHAMBERS: No, no.
DE LA POER: We can ask him about that, then. You considered, is this right, referring the doctors to the GMC?
CHAMBERS: I don't remember that.
DE LA POER: Let's have a look. 16 March. INQ0003344. This is the first reference to GMC I am going to ask you about. We see on page 3, right in the middle: "Part of me says ring police and GMC." So help us with what you were saying there, please?
CHAMBERS: Again, Stephen's notes -- he captures things that were not action points and it may have been me just speaking out loud, you know, what do we do? Do we go to the police, go to the GMC? It was not anything more than that.
DE LA POER: Well --
CHAMBERS: And I can't remember why ... I can't remember how that fits into the whole discussion that we were having.
DE LA POER: Why would you be raising the possibility of ringing the GMC if not to do so in the context of referring these two doctors or more of them?
CHAMBERS: The note at the top of the page there says: we agree on more than we disagree. The paediatric are not in a space to --
DE LA POER: "... to receive anything. They feel like battered wives. Execs (TC) is abuser. Paeds frustrated with IH."
CHAMBERS: Yes, yes. So it was -- it was a discussion I think around just generally how our colleagues were feeling.
DE LA POER: Well --
CHAMBERS: Clearly I say there Lucy cannot go back to the unit.
DE LA POER: Then reading on, you say: "They want us to throw Lucy under a bus." Which might be thought to be a suggestion that they are trying to do something improper?
CHAMBERS: I again I -- I don't remember this conversation. I'm -- I genuinely don't remember the conversation.
DE LA POER: Well, we will come back to the GMC. We need to just pause. We have spoken about the network meeting on 27 March which Dr McGuigan attended, and he's given evidence about receiving a call from Tracy Bullock?
CHAMBERS: Sorry, say again?
DE LA POER: Dr McGuigan?
CHAMBERS: He wasn't at that meeting.
LADY JUSTICE THIRLWALL: No, he wasn't. It is a different question I think.
MR DE LA POER: Dr McGuigan has said he received a call from Tracy Bullock following that meeting, whether or not he was present, in which he was told by Tracy Bullock -- this is what she said according to Dr McGuigan, we will come to what she said about it in a moment -- that you had told Tracy Bullock that the Consultant paediatricians are refusing to accept problems with the standard of care on the neonatal unit, are instead pursuing other lines of inquiry. That she mentioned you had said there were ringleaders and things
were likely to go badly for those two and she didn't want him to be affected. Now, Tracy Bullock's account is considerably more temperate than that and I know that you have seen it. I want to give you the opportunity, please, to tell us; did you call Tracy Bullock and tell her that the Consultant paediatricians were refusing to accept problems with the standard of care and instead pursuing other lines of inquiry?
CHAMBERS: Okay, I -- it wasn't a telephone call. I think we were in fact -- I remember we were on a train to Leeds. We were going to a -- one of the Chief Executive Regional Forums which was held in Leeds. I bumped into Tracy at the station and we sat together on the train and we had a conversation. In the conversation, I was just discussing with her as a peer and a fellow Chief Executive and somebody whose opinion who I valued, to -- almost as a -- just to see, you know: am I missing something, is there more we can be doing? I don't remember the detail that we talked about but I would have taken her through the work that we had done, how the -- how -- how our clinical colleagues were feeling about the work we had done and the reference to Michael McGuigan was simply that Michael was a new member to the team.
He -- I think he was the nearest that we had to an independent mindset of matters on the neonatology unit. He had no history, but he was an experienced -- an experienced doctor and I think he was also a neonatologist. The reason I raised this with -- with Tracy Bullock is that she was the Chief Executive at one of the local hospitals where Michael had been recruited from, so she knew him. So what I had said is we had had this meeting, lots of discussion around the issues, decision made that we would be going to the police and one of the things that I felt really compelling in -- in the meeting on the 27th was when Stephen Brearey told me about the thoughts and opinions and reflections that Michael McGuigan had had on these matters and I found that to be really quite significant. I spoke to Tracy to say, you know, is -- is this guy all right? Is he -- does he know his onions? And she -- she suggested that his opinion would be worth listening to.
DE LA POER: Did you at any point in the conversation suggest that it would go badly for the ringleaders --
CHAMBERS: No, no, I think -- I don't know where that was. I think -- Tracy I think may have -- did she contact Michael following this meeting, this
conversation? I think she may have had a telephone conversation with him and she was almost seeing that as a well-being check, really. You know, given that it must be difficult, arriving at the Trust at a time when all of this was going on, I think he had only been there two or three months.
DE LA POER: Mr Chambers, rather than speculating as to what was motivating Ms Bullock, the question was: did you say it? Your answer is --
CHAMBERS: No, I don't and I don't think she said I did either.
DE LA POER: No, but that is what Dr McGuigan --
CHAMBERS: And I can't comment on that.
DE LA POER: -- understood. So I have put it to you, given you a fair opportunity to deal with it, you have dealt with it. Of course, things going badly for a doctor invariably means being reported to the GMC, doesn't it?
CHAMBERS: I don't know what -- what that refers to.
DE LA POER: Well, let's have a look at the second reference that I told you I would bring you to, INQ0015642 and we are going to go to page 48 and this is a meeting you had on 12 May, so the same day that the second meeting with the Cheshire Police took place. You have obviously heard that at that meeting you had told the Cheshire Police there was no evidence, that's what the Trust thought but that you welcomed the Cheshire Police investigating. So page 48, please. The first thing we are going to do, because this is the potentially important meeting, is we are just going to identify the parts of this note which was made by Sue Hodkinson in what she tells us was a one-to-one with you. So TC, your initials there, we have got the date, the time at 11.45 am. RJ and SB, that will be a reference to Dr Jayaram and Dr Brearey; is that correct?
CHAMBERS: I -- yes, it will be, yes.
DE LA POER: "Plan re management. "1, GMC. "2, actions from grievance. "3, mitigation ['from' I think that says] SOS [so that will be Speak Out Safely] whistleblowing. "4, action plan to manage out ... Tuesday [something] follow up call." Now, Ms Hodkinson has given us some evidence about this yesterday. Are you aware of her evidence on the point?
CHAMBERS: I am, yes.
DE LA POER: Let me just summarise it. She told us that
she was surprised and disappointed by what you were saying, that she had understood that you were frustrated, that was a discussion which was never implemented about how to manage Dr Brearey and Dr Jayaram out of the Trust; that that included a referral to the GMC and that she challenged you about it in the meeting, although she did also go on to say you will have to ask Mr Chambers whether I challenged him. So is her account of this meeting accurate?
CHAMBERS: To be honest, I am not being difficult, I don't actually remember the meeting. But I do remember the context around the meeting. I have nothing to suggest that this meeting didn't take place, but normally Sue's notes are very comprehensive and these are just some jottings. I'd written to the Chief Constable on 2 May 2017. We met with the police for the first time on 5 May. We had a follow-on meeting on 12 May at 9 o'clock in the morning. At that meeting, you present one version that I think is a misrepresentation of what we said to the police. We were not trying to play down the concerns and we will go through the meeting notes of that meeting later with my barrister. But what is clear at the outcome of that meeting
was that the police were themselves not sure whether this met the threshold of a criminal investigation and this was despite having had meetings with the paediatricians at the CDOP. I was very clear that before any decision could be made that suggested that there wouldn't be an investigation that they should meet with the doctors again, which they did, I believe, on -- I'm not sure but it was within a few days.
DE LA POER: It was 16 May although I may be mistaken about that?
CHAMBERS: 16th, yes, and then that led to the commencement of Operation Hummingbird. So this meeting here, this note here was I think I remember driving back from the police headquarters and it was about a 40-minute drive to the Trust. I remember reflecting on where we were and also thinking to myself: what would be the implications if they don't do a police investigation? We'd had now a -- what felt to be a breakdown in the relationship between the doctors and the nurses. We were aware that the nurses struggled and had felt with -- felt that Letby had been treated badly. They felt that perhaps that she had been -- all the things you have heard from, you know, from Eirian Powell and others' evidence and I was kind of sympathetic to this
and aware of this. For me, what this meeting was all about was patient safety and insomuch as if we have a scenario that there is a breakdown in relationship between the leaders of our services and the nurses in those services, then that's never going to be good for patient safety. So I kind of was thinking if there isn't a police investigation, what are we going to do? So this was just almost a -- a -- well, we can do this, we can do that. "Sue, guide me." But as you know, it didn't lead to anything because Operation Hummingbird was commenced I think soon afterwards, the 17th or something like that. But what is absolutely clear in that meeting note at the police headquarters on 12 May at 9 am, the -- there was a clear, clear message from me that the police before making any decision around not doing a criminal investigation or these concerns don't meet the threshold of a criminal investigation ... they needed to speak to the doctors first. So I left really not being sure what the outcome would be and that is the context to this meeting.
DE LA POER: Why were you talking about referring Dr Brearey and Dr Jayaram to the GMC?
CHAMBERS: That is not what we were talking about. It was saying what are the potential things that we might need to do if there isn't a police investigation, 1 GMC. 2, this ...
DE LA POER: What --
CHAMBERS: So it was -- it was nothing more, nothing more than that.
DE LA POER: Why would the GMC need to be involved at all?
CHAMBERS: And I -- I don't know. We were just working through scenarios. There was no detail. There was no substance and we would have had to have put a significant amount more effort into this if the police hadn't done their enquiries. Or not. We may not have needed to do that. The -- it was just for me recognising that we would because of the significant escalation in these matters, for them if they then don't get resolved, if you like, by a police inquiry what -- where does that leave us in terms of patient safety?
DE LA POER: And mitigation from Speak Out Safely whistleblowing, so was that a discussion?
CHAMBERS: To be honest, I would not -- I wouldn't know what that meant.
DE LA POER: Well, were you discussing, as we heard yesterday, with Sue Hodkinson effectively how you could get round the fact that they were whistleblowers?
CHAMBERS: Sue's -- Sue's memory of this meeting is about as good as mine. She doesn't remember the -- the context to the meeting. She didn't remember that we were, were speaking to the police at this time. So I think had she been aware of that at the time of giving evidence it may have triggered something in her mind.
DE LA POER: Why were you not referring Letby to the NMC?
CHAMBERS: Yes, and those were things that could have been there as well.
DE LA POER: Why were you not talking about raising a safeguarding concern if the police did not take it forward?
CHAMBERS: Like I say the -- this was a fortuitous one-to-one meeting with myself and the director of HR. Had that meeting been a one-to-one with -- with Alison Kelly, rather than Sue Hodkinson, then, then the conversation would have probably been exactly as you described. I don't know and I can't speculate.
DE LA POER: Why can't you talk about those things as part of the plan with Sue Hodkinson?
CHAMBERS: But I'm -- I'm unclear as to why -- why we would do those things if we had done all of our reviews, we'd raised those concerns with the -- with the -- with the police, the police had at that time would have spoken to the doctors on at least two occasions.
We didn't know at this point whether they were going to do a criminal investigation. They did on the basis of their second meeting with the clinicians. Had they not done the police investigation I'm not sure on what basis you would do an NMC referral but I would have had to have taken guidance.
DE LA POER: Didn't you still have a safeguarding responsibility towards the babies on the unit?
CHAMBERS: We had -- and again I don't know whether safeguarding would have been -- would have been -- would have been appropriate at this time. Safeguarding perhaps might have been appropriate sooner than this. But at this time, we'd already spoken to the police on four occasions.
DE LA POER: Let me put a potential interpretation of this note to you so that you can deal with it head on. Were you having a discussion with the HR Director about how you would get rid of Dr Jayaram and Dr Brearey by referring them to the GMC, working out a way to get round the fact that they were whistleblowers and managing them out of the organisation?
CHAMBERS: No. I -- I -- I don't think that was the nature of the conversation. All I was saying is I have just come from the police, if there isn't going to be a police inquiry, what are the implications of that?
I think had I not had a one-to-one scheduled with Sue, I probably wouldn't have even had this conversation. It was just one of those things where it was a coincidence that all of those things came together at that point. But as Sue said yesterday, her advice was: well, that wouldn't be sensible. But I wanted you to understand that this was not a deliberate plan, this was not something that was -- that was being engineered or concocted. This was me and Sue exploring what the implications might be. Now it is -- it is -- it is -- on one level it is surprising that Sue doesn't remember that but it was -- until I had seen this meeting note I had forgotten about this meeting as well. It was eight years ago.
DE LA POER: My final topic is your departure from the Countess of Chester. We can take that down, thank you very much indeed. We have heard from Lyn Simpson about the fact that there was an impending vote of no confidence --
CHAMBERS: Yes.
DE LA POER: -- being discussed and we know that on 19 August, or perhaps the day before, Sir Duncan Nichol reached out to NHS Improvement for help and we can bring up the note that was made of the conversation Ms Simpson had with Sir Duncan, INQ0101357. This is the first call, you are not party to this call. I hope you have had a chance to see this in advance but we can see the action plan as recorded in the notes and I will tell you what Ms Simpson said, if you don't know, about this was that the suggested way forward at point 3 was to prevent the vote of no confidence. I think that's supposed to be Sir Duncan to take this forward to ensure that you don't go back to the site, to agree that an alternative option for six months could be found, that you would not go back to the Countess, otherwise you would be made redundant. So that appears to be the subject matter of their conversation and Ms Simpson said she didn't intend to use the word "prevent"; in fact it was that the vote of no confidence was to be explored by Sir Duncan. My first question for you is: did you know about whether Sir Duncan was planning to intervene or involve himself in any way with a vote of no confidence that was being discussed?
CHAMBERS: I know that Duncan had been meeting with the-- I am going to say the paediatricians, but I -- I can't -- I don't know specifically who and I don't know whether it was a collective or -- or a bilateral. But I was aware that he had, had been doing that.
He was very keen to not take sides in any discussions, you know, and he wanted to put the best interests of the organisation first.
DE LA POER: So far as you understood the position, was he trying to prevent that vote?
CHAMBERS: And I was going to say that there would have been no benefit to a vote of no confidence in the organisation. It would be a bit like a Brexit vote. It it's never conclusive. It would have created all sorts of other consequences and it would be better for the organisation, better for -- for me, I suppose as well, it's fair to say, and it was not really a surprise. Because, as we know, with all of the escalating inquiries that had gone on, then the police inquiry and then Letby subsequently being arrested for the first time, so I think maybe the paediatricians felt some sort of vindication on that. I felt that it was the best thing for the organisation for me to step aside.
DE LA POER: We are going to look at the conversation you had with Lyn Simpson and the first question which doesn't require any detail, was that in your telephone conversation that we see on 9 September, do you think that you were candid with Ms Simpson about any failures on your part which had given rise to the vote of no
confidence?
CHAMBERS: I beg your pardon?
LADY JUSTICE THIRLWALL: Which call are we looking at, Mr De La Poer?
MR DE LA POER: At the bottom.
LADY JUSTICE THIRLWALL: 19 September?
MR DE LA POER: 19 September --
LADY JUSTICE THIRLWALL: Yes.
MR DE LA POER: -- 2018. My question was: were you candid with Ms Simpson about the difficulties --
CHAMBERS: Yes, absolutely.
DE LA POER: -- that led to the vote of no confidence?
CHAMBERS: Yes, yes, no, I -- there was no secret that there had been ongoing investigations and reviews into neonatal matters at the Trust. The -- everybody was aware of that from 2016 onwards, 2017 and then the police investigation and I was very candid with her that, that the relationships between increasingly it was the Executive and then it was myself and the -- sorry, Ian Harvey and me, and then Ian and then it was just me ... So it felt that, you know, in the best interests of the organisation, that I should step aside. I had been absolutely candid with her that it was -- it was, as you know, if you like, a breakdown of relationships as
a resulting of escalating concerns of inquiries.
DE LA POER: I would like to ask you about page 2 of her note which continues over the page. She ascribes this to you at point 3, I suspect that should be "confirmed": "TC confirmed he would step aside and be as flexible towards this as he can be. However, TC advised he would not want this to be a cost towards his career, would want to maintain his status as a CEO." Did you say that to Ms Simpson?
CHAMBERS: I -- I remember specifically a conversation "what do you want from this, Tony?" What would, what would -- you know, what -- because it felt like it was almost a bit of a negotiation really, you know in that you are putting the best interests of the organisation first. I said that but I would rather that was not at the expense of my career. So that was the gist of that conversation.
DE LA POER: Did you say you wanted to maintain your status as CEO?
CHAMBERS: Yes, I -- I would have said that, yes. But that's not what happened.
DE LA POER: Now, what was in train here as Ms Simpson -- I understand her evidence to have accepted, was that this was a discussion about getting you a job that you didn't have to apply for formally, that was created for you, which you didn't have to compete for, and in relation to which there wouldn't be an overt and transparent process, so that's what's being found for you in this conversation. Is that what you understood to be going on?
CHAMBERS: No, I think -- I think -- I think what's missing here is the facts which are I had a contract as a Chief Executive. I had done nothing that was in breach of that contract, so therefore I had a contractual right as a minimum to serve six months' notice. Now, all I was wanting as a de minimis from this, if we could have got more that would have been great, but as an absolute de minimis was the opportunity to work my notice, being useful to the NHS in some other organisation rather than either take a redundancy payment, if that's what it would have been, but I wasn't being made redundant, it would have been because the post wasn't being deleted and so on, it would have been -- would have been -- in employment law, that would have been a tricky thing to have worked through. So it was -- it was a very -- it was me, I believe, again putting the best interests of the patients first at the, at the expense of my -- of my own career and family.
I wanted to be able to work my notice in an organisation so that I then had an opportunity to reset and maybe rebuild.
DE LA POER: It was described in a note to a conversation that you weren't a party to as a rehabilitation period?
CHAMBERS: Yes.
DE LA POER: Did you know that it was being described as that?
CHAMBERS: I have heard all sorts of different descriptions, not of this, but these kind of things happen to Chief Executives all the time. All the time. They call it rehabilitation, they call it going into the donkey sanctuary, but what I actually think this was about is just myself and Duncan taking a very pragmatic view on how we can, if you like, help the organisation move forward, focus on its future whilst I focus on my future. It was nothing more sinister than that.
DE LA POER: Of course it meant that the vote of no confidence was avoided. That was one part of it; is that right?
CHAMBERS: Yes, and again, I wasn't aware, genuinely wasn't aware that there was ever going to be a vote of no confidence. That was something that began to be talked about but I genuinely wasn't -- wasn't specifically aware of it. I thought that the meeting
that was being referred -- that was being planned with the Medical Staff Committee and the paediatricians was an opportunity for them to, if you like, share their concerns. It was never presented to me as a vote of no confidence. But clearly that's how it was likely to -- that's what was likely to be the outcome.
DE LA POER: It's important I give you the opportunity to deal with an interpretation of events so that you can have your say on the point. Did you leave in the circumstances you did in order to avoid scrutiny of your leadership --
CHAMBERS: No.
DE LA POER: -- during the period?
CHAMBERS: No. No, I mean, I -- there was no suggestion that -- well, I suppose maybe if I had not been supportive of these -- this plan, there could have been a vote of no confidence that would have probably meant that I had -- would be suspended. There would be -- but again that, that wasn't clear, that wasn't something that we were trying to avoid. I was just, together with Sir Duncan -- Sir Duncan and I had a very close professional and personal relationship. We -- he -- he was somebody who I looked to as a Chief Exec as a -- as somebody for guidance and
we always had a very open and honest discussion about when it's time, if you like.
DE LA POER: The final document that I wish to ask you about is INQ0015683. This is the settlement agreement and we are going to go to page 30 which is one of the appendices to it. Forgive me, 31, it's an internal page, I beg your pardon. This is the schedule for narrative announcement. Now, was this something that was substantially drafted by your side of things?
CHAMBERS: That was something that Duncan and I collaborated upon.
DE LA POER: We can see in the third paragraph: "Tony's stepping down as CEO at the Countess is as a result of extraordinary circumstances. It is not a judgement on his ability as a CEO but more a reflection of his integrity as a leader." Do you consider that to be an accurate statement?
CHAMBERS: Absolutely.
DE LA POER: If it was the case that you stepped down to avoid a vote of no confidence and you have given evidence that that isn't why, that statement would require rather more detail, wouldn't it?
CHAMBERS: It -- it probably would. But that was not the position and it's fair to say that in all interviews subsequent to me leaving the Countess, I was never gifted a job. I always had to apply for a job, I was interviewed and I was always very straight and open and transparent about my time at the Countess. Which -- which is really easy when we are just focusing on 1% of the business, which is the matters of the neonatal unit that we have spent our day talking about, but the Countess was -- was -- was much bigger than a neonatal unit. It -- and my time at the Countess was demonstrably successful, as outlined in this, this note here. It's easy to characterise me by the events, sadly, of the -- of the last 18 months of my career at the Countess or 24 months of my career at the Countess but there was so much more to it than that and there were so many things that I am incredibly proud of that are now in place at the Countess delivering benefits to patients and staff, not least of all the new neonatal unit which, as I understand it, is built and open. One of the final things I was able to do before I finished was to get the financial business case over the line for the new neonatal unit.
DE LA POER: The last thing to ask you about from me is the paragraph below: "These investigations into neonatal deaths at the Trust have escalated over the past two years and
inevitably put relations between senior management and paediatricians under exceptional strain." I would just like you to have the opportunity, please, to reflect on the word "inevitably". Is it correct that matters would have escalated as they did inevitably or was that as a result of the way in which you managed the response?
CHAMBERS: I stand by the decisions that we made. We were acting in good faith. I was acting in good faith. I listened to the doctors when they raised their concerns. I also listened to the nurses when they raised their support. I was being presented with things that at times felt quite binary. I never took a binary view. I listened to both. Therefore Letby was removed from front line duties and therefore we also focused on the safety of the unit redesignating and so forth all the inquiries that went through, all done in good faith. The -- it's easy, really easy, when you look at these matters in the context of what we now know following a four-year police investigation, a 10-month trial, a retrial, but in 2016 and it's probably the case even now, in the NHS, the biggest cause of unnatural, unexplained deaths in maternity, in neonatal units, is not deliberate harm but
failure in systems of care. There are many examples. The Kirkup report, the Ockenden report. Many, many examples. So it doesn't surprise me that it inevitably put strains on relationships because these were complicated matters.
MR DE LA POER: Mr Chambers, those are the questions that I have for you.
LADY JUSTICE THIRLWALL: Thank you, Mr De La Poer. Just before we move on, I had said that we would come back if you felt there was something else you wanted to say about INQ0003076, which is the meeting, the Hummingbird meeting, that you have referred to quite recently but I understand that that's something that your barrister is going to deal with, is that right? Rather than me dealing with that if that's already been agreed I will leave that for you. Thank you. Now who is going first? Is it you, Mr Skelton?
Questions by MR SKELTON
MR SKELTON: Mr Chambers, I ask questions on behalf of one of the Family groups. Can I just understand your evidence from earlier about your status in relation to risk. I think you said you were the accountable officer; is that correct?
CHAMBERS: That is correct, yes.
SKELTON: What does that mean in practice?
CHAMBERS: In practice it -- it's a technical thing for -- for all Chief Executives. It's as the accountable officer you are responsible statutorily for the financials and delivering on the financial -- you know the financial governance but also the internal governance, which includes risk.
SKELTON: Includes operational risk?
CHAMBERS: It includes all risk, yes.
SKELTON: All risk. At the start of your evidence today Mr De La Poer asked you in detail about the information that was given to you in late June/early July about the Consultants' concerns about Lucy Letby?
CHAMBERS: Yes.
SKELTON: It was clear from that evidence and the documents surrounding it that their concern was that she might have been responsible for the increase in neonatal death?
CHAMBERS: I think what -- what they -- what they were saying was -- was that there had been an unexplained increase in mortality and that there had been a member of staff on duty more times than another member of staff and then there was nothing really more concrete than that.
SKELTON: Well, there was, wasn't there, there was stable children who deteriorated without medical explanation and unexpectedly who failed to respond as appropriately to resuscitation and they had even started to speculate, and you were aware of this, that they might have been murdered?
CHAMBERS: So at the time there was certainly nobody talking about criminality. There was certainly lots of examples that things had -- were happening in an unexpected and unexplained way. But there was no -- there was nobody really pointing to say this was deliberate. They -- there were and I asked the question many times at many meetings: are we saying this is deliberate harm? Are we saying this is criminality? Or are we saying -- or versions of that and there was many, many thoughts and different opinions that were being raised but there was nothing that you could really put your thumb on.
SKELTON: You were aware it was a possibility?
CHAMBERS: I was aware of possibility so I was listening to the doctors' concerns and I was also listening to my own gut feelings, which were I was aware from visiting the unit myself in December 2015 and other times that this was a unit that was running hot, that this was a unit that had seen an increase in demand. This was a unit that the acuity had gone up this was a unit where the birth rates had gone down so there was more than
simply -- well, there was more going on than we could explain.
SKELTON: You were aware of the possibility that the babies had been deliberately killed; yes?
CHAMBERS: I was aware only of the concerns that were raised and the circumstantial link with an individual member of staff.
SKELTON: Well, the evidence you have already given and the evidence given by Ms Kelly and many others was that after the two Triplets died, the Consultants were concerned that they had been killed by Lucy Letby and they wanted her off the unit. The possibility that she had done so deliberately was a valid one, wasn't it? You were aware of that.
CHAMBERS: So can you show me the INQ reference of that?
SKELTON: No, it's a vast amount of evidence that has been given over the last two --
CHAMBERS: But you are speaking very emphatically there and that is not what I remember.
SKELTON: You don't remember being told by Alison Kelly that the Consultants wanted Lucy Letby off the unit?
CHAMBERS: Oh, I remember Alison telling me the things I had outlined, that there had been an increase in explained mortality. That there were concerns about the association with a member of staff and -- and -- and do
I remember the -- and maybe there was concerns raised that this member of staff needed to be removed. So --
SKELTON: Just to be clear, was it your -- is it your evidence that you were not aware of the possibility that children may have been deliberately harmed at the end of June and the beginning of July 2016?
CHAMBERS: I -- it was -- it was, it was much less explicit than that. If for one moment that's what I believed I had heard and that was being, that was what was being said, the board would have gone straight to the police.
SKELTON: When did you become aware of that possibility?
CHAMBERS: I -- I think it as we did more investigations, as I have said previously, and we took the guidance from independent experts and the guidance that they were telling us seemed to be pointing away from deliberate harm.
SKELTON: I am not asking you that question. I'm sorry, you are going to have to really focus on answering my question. When were you aware of the possibility --
CHAMBERS: So I am saying to you it was something that was -- was never concretely said in the way that you have said. I mean, I think there is so much hindsight
inherent within your question. At the time that's not the information that I had or we had.
SKELTON: Ms Kelly was clearly aware of that possibility. She talked about it in her evidence this week and she talked about safeguarding. Mr Harvey was also aware of it, he discussed it with the Royal College on the first day of their visit. Are you aware of that?
CHAMBERS: Yes, but what they weren't saying that this was an individual who was deliberately harming babies. This was somebody who there was a circumstantial link and gut feeling. Nothing more than that.
SKELTON: Sorry, that's the possibility of harm was aware -- they were aware of that at that time?
CHAMBERS: Oh, okay. If you are -- I think it's when you use the emotive language of "murder" that it becomes, you know, not something that I heard at that time. If you are saying the possibility of harm, then, you know, there was discussions: was this a competence issue? Was this a -- you know, was there -- what was the range of scenarios and issues that we would need to explore?
SKELTON: When were you aware of that possibility?
CHAMBERS: Oh, I think I -- I felt those issues almost immediately, really.
SKELTON: All right. Well, that's taken about 10 minutes to get to. Can I ask you this: what is the risk that the Consultants were right, what was the risk?
CHAMBERS: Say again, sorry?
SKELTON: What was the risk in your mind that the Consultants were right?
CHAMBERS: Then if we didn't take action, if I didn't remove Letby, then this deliberate harm might well continue.
SKELTON: Indeed. So risk is usually seen in two ways or with two factors, there is a likelihood and there is consequence. What was the likelihood that they were right?
CHAMBERS: Based on what we knew at the time, and based on what the conversations that we had had in various meetings where I had said quite deliberately: are we suggesting that this is deliberate harm? And the answer was: we don't know ... It's difficult to quantify that. But the fact that we couldn't quantify it in itself didn't mitigate any of the risk, so therefore Letby was removed, the unit was downgraded and all the actions that followed.
SKELTON: So you had an unquantifiable risk that children might have been harmed by her and the consequences were obvious --
CHAMBERS: Yes.
SKELTON: -- death and injury, they are the consequences of not removing her; correct?
CHAMBERS: But she was removed.
SKELTON: Yes, but I am asking about if she had gone back, the consequences of --
CHAMBERS: Right, okay, yes.
SKELTON: -- that risk?
CHAMBERS: By that time, so I thought we were talking about 2016 -- in terms of 2017, you are right, there was the -- but at that time it was genuinely felt by the board and myself and the advice that we were getting that it was pointing away from deliberate harm.
SKELTON: Did you ever register the risk formally in any of the management processes?
CHAMBERS: I mean, that's a really fair point. I -- I think the answer to that is no.
SKELTON: From a safeguarding perspective, had this been looked at through the lens of safeguarding, it required an immediate response, that risk, and the reason is requires an immediate response is because the consequences are so grave and potentially unmanageable, you recognise that? 24 hours local safeguarding officer and the police, that is the appropriate response to a risk of that sort, in an ordinary setting; correct?
CHAMBERS: Correct, yes.
SKELTON: Other witnesses, I think Ms Kelly being one of them, have accepted that there was a safeguarding risk here which should have triggered that response. Do you accept that or do you disagree?
CHAMBERS: I -- I would have taken advice around whether this was a safeguarding matter from the safeguarding lead, Alison Kelly. I would have taken advice whether this should have been a matter for a SUDiC process from our -- from our clinical leads. I was minded by the fact that if there genuinely -- it was genuinely felt that this was deliberate harm by this individual, I am absolutely confident that the professionals, the doctors, would have alerted these processes themselves, either directly to the police or they would have gone through one of those mechanisms were -- the fact that those things didn't happen in itself created a sense that -- that risks were not -- were being managed.
SKELTON: But you know that Consultants find it extremely difficult to whistleblow on their colleagues, they don't generally deal with these sorts of situations, they are also extremely concerned that they will find themselves in hot water with the GMC or internally with their employer. There are a lot of disincentives. Robert Francis talked about this, you
are well aware of this, you have been in the NHS for years. The fact that they don't trigger a safeguarding process doesn't necessarily mean or exonerate one from triggering one if you are aware of it, does it?
CHAMBERS: I am struggling to see what the risk to them would be of triggering a safeguarding process.
SKELTON: Well, the risk to it could be triggered unnecessarily and it could cause matters to rebound on them, obviously. That is what they talked about.
CHAMBERS: So but I -- if -- is there not a professional responsibility to -- to do just that?
SKELTON: There is and it's also on you, do you accept it?
CHAMBERS: Yes, absolutely.
SKELTON: You should have triggered the safeguarding process just like everybody else?
CHAMBERS: I -- I -- I don't know, I am genuinely not sure, but if the guidance that I would have been getting from my safeguarding lead, I would be guided by that. We -- we didn't view it as a safeguarding issue. I don't think anybody did. I think it was viewed as a unexplained increase in mortality with not really any clarity as to what those causes were. You are simplifying it to one cause. I don't think that was where -- where we viewed it.
SKELTON: You viewed it in fact as a hypothesis and not a risk. You viewed it through the prism of a hypothesis, it is possible these babies may have been killed deliberately, but you didn't see it as a risk; is that fair?
CHAMBERS: I think that might be a reasonable way of describing -- describing it. I -- as I said before -- at the end of my last evidence, that all evidence to date at that time pointed to unexplained deaths being more likely to be caused by a multi-factoral set of issues rather than a single act or individual. I don't think that was -- if that is a hypothesis then I accept that.
SKELTON: You said in answer to questions from Mr De La Poer that your job as Chief Executive, or one of your jobs, is to ask the right questions?
CHAMBERS: Yes.
SKELTON: Did you ever ask Ian Harvey or anyone else: have you satisfactorily excluded the possibility that Lucy Letby has deliberately harmed children?
CHAMBERS: We asked that question in a slightly different way in that have we been able to establish anything that is -- well, the question was framed in many different ways but one example of that, and it was a meeting on
27 March, I asked: are we saying that this is deliberate -- that this is criminality? So we did ask that question.
SKELTON: That is not the same question though, is it? The issue is: did you ask any of your staff if they had satisfactorily excluded the possibility, so directly confronted it and excluded it?
CHAMBERS: I'm not sure that we did ask what question.
SKELTON: Because Mr De La Poer has taken you through all the various investigations so there is the Royal College investigation or review, that did not exclude that possibility, did it?
CHAMBERS: It's -- it gave examples of where the care could be improved or where the leadership could be improved or the staffing levels could be improved. But as I said in my own witness statement, it didn't answer the question.
SKELTON: Nor did Dr Hawdon.
CHAMBERS: I -- I think Dr Hawdon's review and maybe it's a misinterpretation and I don't think it is, but Dr Hawdon's review was that there was nothing pointing to deliberate -- to unnatural causes.
SKELTON: That's not the same as excluding it, is it? In fact, she asked from a forensic review to take place in respect of five children, although it ended up being
four?
CHAMBERS: Yes.
SKELTON: So she did not exclude the possibility of deliberate harm and was not indeed asked to exclude it?
CHAMBERS: We, I believe and you -- you may wish to pick this up with -- with Mr Harvey, but the way that the work that Dr Hawdon was doing was commissioned was deliberately constructed in a way that she would keep an open mind and those things would hopefully be flushed through. But in -- and the outcomes of that, her work, as I said many times, didn't point to deliberate harm. The four cases where things were unascertained, they -- when they were reviewed by pathologists didn't point to deliberate harm. I'm not sure what else to make of that other than there is no deliberate harm.
SKELTON: That is a false inference. So you are saying they didn't positively point to deliberate harm but they quite explicitly did not exclude deliberate harm, did they, none of them? The Royal College didn't because it wasn't a Casenote Review, they never looked at the medical records of the children. Dr Hawdon looked in detail at the medical notes of the children but she explicitly said "I can't exclude unnatural causes" and she asked for forensic Casenote Review. And
Dr McPartland in the more limited review couldn't exclude deliberate harm either. None of them did.
CHAMBERS: And the guidance that we were getting that I was hearing and the inferences that we were making, that there was nothing that was suggesting unnatural causes to the causes of death to those babies. They had had postmortems previously and so on, so I -- I -- and again as I said, eight years on, when you look back, you can see that following the police inquiries and all the rest of it that the causes of death have now been called into, you know, a different explanation than the ones that we arrived at had it been -- had been agreed.
SKELTON: But if you look at the instructions, the instructions don't say: this is the suspicion, please will you investigate it and exclude it as a possibility? At no point do any of those cases that occurred --
CHAMBERS: Yes, and again you will need to test this but my view is that it was -- we didn't want to in any way prejudice the work that was been doing, we wanted everybody to keep an own mind as we were. I can't -- I can't say any more, I'm sorry.
SKELTON: In your response to the Consultants' concerns in 2018 you said that you believed the Trust could demonstrate that it's taken the concerns that they have very seriously and you have been open and transparent with the Coroner, with our regulators, and as far as the police investigation allows, with staff, parents and the public. Can I test that, please. First of all, NHS England. You will be aware that they have provided an opening statement to this Inquiry and Sir Stephen Powis has given a statement. The opening statement by NHS England says: "To the best of NHS England's knowledge the concerns about potential criminal conduct were not shared at this point [in other words, when they arose around June/July 2016] and this information was also not shared with NHS England." How does that square with your assertion to the Consultants in 2018?
CHAMBERS: So again it's -- it's the first thing we were -- what we thought we were doing was trying to explain the causes of increased unexplained mortality. There was a suggestion that a single member of staff -- that a single member of staff was on duty more times than another. So those are the two facts of it. The -- in his evidence Robert Francis talked about how difficult it can be to balance the duty of candour with the duty of care and this was a balance that we were trying to manage. So hopefully from the
recommendations from this Inquiry there can be greater clarity around how that balance can be delivered. But candour starts with an investigation and that's what we were doing.
SKELTON: There is clearly expectation on part of the regulatory -- of that body -- we will come on to the CQC in a moment -- that you would have told them of a concern at that level and for obvious reasons if you have a nurse that's either so incompetent that she's managed to kill a lot of children or has deliberately harmed children and you are setting in train a series of internal and external investigations to look at that concern, that is clearly a matter of interest to NHS England, isn't it?
CHAMBERS: And in 2016 I think the information that was shared with NHS England was around the increase in the mortality --
SKELTON: Yes.
CHAMBERS: -- not the link to the nurse. The link to the nurse I think was made, the -- NHS England were made aware of that some time in 2017. I know that the link person that Alison was connecting with to share all of these concerns was with Margaret Kitching, and Margaret, I think, it's fair to say, was fully sighted on these issues but when she was
fully sighted on these issues, I am not absolutely certain.
SKELTON: Do you accept that NHS England should have been told about the concerns that a single nurse was responsible for the increase in deaths when those concerns arose?
CHAMBERS: The -- the answer is I don't know, it's just that balance between candour and duty of candour and duty of care. I -- whether we got that balance wrong, I'm not sure at that time whether we had got the balance right.
SKELTON: Does the same answer apply to the CQC? You will be aware that Ann Ford has given evidence in writing and orally to this Inquiry, she made clear that she would have expected your hospital --
CHAMBERS: Yes.
SKELTON: -- to have told the CQC, which had visited in February, about the increased mortality as and when it arose and about concerns as and when?
CHAMBERS: Say that again, please?
SKELTON: It would have expected to have been informed about increased mortality as and when it became an issue and it would have been -- can I just finish? Would have expected to have been told about the concerns in respect of a single nurse as and when that arose?
CHAMBERS: Okay, so, the -- as a -- as a process arising coming out of any Serious Incident Review which I think some of the babies involved in June/July 2015 were subject to, the CQC and the CCG would have been made aware of those reviews at that time. In terms of if your question is: should we have shared the Thematic Review with the CQC?, well, my understanding is that the CQC -- the Thematic Review hadn't been shared with us at that time or if it had, it had literally only just been shared with us and by "us", I mean Ian Harvey and Alison Kelly. I didn't see the Thematic Review until much later. It would -- it wouldn't be usual to share something that hasn't been through our own internal governance processes and we know that the sharing the Thematic Review through our own internal governance processes had been problematic. It hadn't gone through to the QSPEC in a timely way, it hadn't gone to the Women's and Children's governance board in a timely way so it's difficult to be really clear whether that document should have been shared at that time. But it may well have been. And I think you need to test that conversation with Mr Harvey tomorrow because there isn't any clear record as to whether the CQC had got that report or -- or not.
SKELTON: Well, the CQC through Ann Ford has given evidence that they considered the Trust not to have been transparent with them about this matter --
CHAMBERS: Yes, I -- I -- that wasn't -- we weren't a Trust that was not transparent with the CQC, we were always a Trust that if there was risk concerns, we used to be -- we were one of those Trusts that would alert the CQC rather than been waited to ask. So all I can assume is that the -- the -- any delay in it being shared with the CQC was because the -- there had been a delay in the Thematic Review being shared through our own internal processes. Subsequently it was shared -- was it not shared in March?
SKELTON: So their evidence is that the -- just if you give me one second, first aware of the increased mortality on 29 June when Alison Kelly rang?
CHAMBERS: Okay.
SKELTON: Made a phone call?
CHAMBERS: Yes, okay.
SKELTON: So many months after the Thematic Review?
CHAMBERS: (Nods)
SKELTON: Do you have a comment on that?
CHAMBERS: No. If that's the point of fact, I'm -- I'm -- I seem to remember and, and I can't, I can't give you the specifics, but I do seem to remember that
bundles of documents following the review were shared with the CQC, as is common practice. They take a load of documents in advance, they do their review and then they make requests for further. It was my understanding that the Thematic Review, I think, was part of one of those bundles, but I can't be absolutely certain.
SKELTON: When it comes to the board, I won't take you in great detail through all the various meetings for obvious reasons. But there was a meeting on 10 January where Ian Harvey presented a report that he had done?
CHAMBERS: Yes.
SKELTON: A very short report. That's at INQ0003518. It's going to come up on screen. So it's a very short report, but he is basically saying: There were some concerns raised by the clinical team regarding higher than usual number of neonatal deaths from January 2015, together with inconclusive results from internal reviews. He doesn't there tell the board that the actual concern was the possibility of deliberate harm, does he?
CHAMBERS: Not specifically in that paragraph, but the --
SKELTON: If you were a board member, Mr Chambers, and you needed to be fully sighted to make a decision, you would want to know that the body of paediatricians
working on your neonatal unit by this stage thought that one of their nurses had killed the children, you would --
CHAMBERS: So --
SKELTON: -- need to know that in terms, wouldn't you?
CHAMBERS: So this was a board meeting in January 2017.
SKELTON: Yes.
CHAMBERS: The paediatricians had been at the board meeting in I think it was 17 July 2016 with all of the board. The notes of that meeting were very frank, open and inclusive. The concerns that the paediatricians had raised would have been the board would have been sighted on them.
SKELTON: But for these purposes those concerns were still in existence, they were still held, vehemently so by this point, and they had not gone away, but Mr Harvey doesn't clarify them?
CHAMBERS: Well, the report is as it's written, yes.
SKELTON: Well, he should have told the board the concerns were still there --
CHAMBERS: I -- I think he -- he, he would have believed that that was something that the board did understand from previous meetings and discussions that had gone on previously.
SKELTON: He mentions the Royal College review, but that
had not excluded the concern, had it --
CHAMBERS: No.
SKELTON: -- as you have agreed?
CHAMBERS: No.
SKELTON: He also mentioned the external case review but that had not excluded that concern either, had it?
CHAMBERS: Well, it had -- there were four unascertained.
SKELTON: Well, as at this stage, the concerns had not been satisfactorily excluded conclusively, had they?
CHAMBERS: Well, 13 cases had been given explanations and causes that were not deliberate harm or, or were not, were not unnatural causes. 13 had also -- it had been identified that there was strong evidence in all cases that there had been sub optimal care and in some cases significant sub optimal care. There were four cases as of out of the Jane Hawdon review that required further investigation.
SKELTON: So, no?
CHAMBERS: I have outlined to you the position.
SKELTON: At this stage the recommendation, it seems from you and Mr Harvey, was that the nurse who was potentially responsible should come back to the unit?
CHAMBERS: Responsible for what?
SKELTON: For the harm?
CHAMBERS: The -- as I keep saying there, there was an explanation for the causes of death. There was an explanation at that time for what was previously described as an unexplained increase in mortality. There was nothing that was talking about deliberate harm.
SKELTON: What was the explanation for [Child A]'s death, who was the first infant --
CHAMBERS: It remained unascertained, as you know.
SKELTON: So what did you mean when you just said there was an explanation? What was it?
CHAMBERS: I -- what I said in 13 cases there was causes and explanations given. In four cases and I think one of those four was Baby A [Child A] --
SKELTON: Yes, five cases in fact?
CHAMBERS: Yes. And, to be honest, you're probably better going through this report and the detail of this with Mr Harvey. But that was my understanding; that at the end of all of this, there were two cases that were -- remained unascertained, unexplained and there was a view that that in itself is not unusual.
SKELTON: Whose view was that?
CHAMBERS: I -- I think Nim. Nim Subhedar maybe have -- But -- but it's something that I will need to ask you to refer to, to Mr Harvey. But in previous notes that we have been through
today, this was a point that Duncan made; that it was not unusual. And there will have been a source for that opinion. I'm not 100% sure what the source of that opinion was.
SKELTON: Mr Chambers, it's an odd feature of your evidence today that you don't seem to fully recognise that the Consultants were entirely right about the risks and what had happened and you were entirely wrong. And so when I put to you that in 2017, those concerns that they had and had had indeed from 2015 had not been addressed satisfactorily and there was still a risk, that is correct, isn't it? She had in fact killed the children?
CHAMBERS: All -- all I -- all I can offer you is the evidence of what we knew, what we believed, what we did at the time of 2016/2017. The facts that those -- the fact that that now, on the basis of the police inquiry that followed, led to indictments and convictions was not the position at that time. So it's -- both positions can be correct.
SKELTON: Well, the position at the time was that you had a group of Consultants who didn't want Lucy Letby back on the unit because they thought she had deliberately harmed their patients and you had an Executive Team that wanted Lucy Letby back on the unit
and were encouraging the Board to allow that to happen. That is the reality, isn't it?
CHAMBERS: There was a grievance process. Out of the grievance process there was recommendations, one of which is that subject to the completion of all of the reviews, and no suggestion of any connection with deliberate harm, then we should -- you -- Letby should be returned to the unit. The position that we took to the board was the outcome of that recommendation based on all the things we knew in good faith, and we continued the conversations with the clinicians, as you know. But the other point of fact is irrespective of whether we believed at that time that Letby should have gone back to the unit, as soon as new matters became known to us, as soon as new concerns or concerns that had been known for many, many years or months were shared with us, the change for -- that Lucy Letby was, she, you know -- the status quo was maintained and the exploration of escalating to the police was explored and eventually delivered.
SKELTON: So can I -- could you just be absolutely clear. What was the new information which tipped the balance?
CHAMBERS: It was, it was, it was the -- it was the
concerns that that Dr Jayaram had, had alerted to Sue, to Sue Hodkinson that led to me going to have a conversation with him. I did not go into that meeting in a very heavy-handed way saying, you know, "Tell me all about ..." I just wanted to find a way to softly listen, that led to the meeting on 27 March, that led eventually to the police being called.
SKELTON: Sorry, what specific information did you learn --
CHAMBERS: It was -- you know exactly what I am talking about. It's the --
LADY JUSTICE THIRLWALL: Just answer his question.
CHAMBERS: It's the -- it's the concerns that Mr Jayaram -- Dr Jayaram had raised in respect to Lucy's conduct on the unit in respect of maybe a desaturation baby that he -- that she -- that he didn't feel that she was attending to or that some dials had been adjusted. Those were the nature.
MR SKELTON: [Child K].
CHAMBERS: Yes.
SKELTON: In short.
CHAMBERS: Baby K [Child K].
SKELTON: So when they put their report in, which is the report which Simon Medland encouraged them to write, they wrote down a summary of their main points. That wasn't one of their main points. They wrote down the familiar list: deaths, an increase in deaths, sudden and unexpected. Failure to respond to resuscitation. One member of staff being present and investigations to date not identifying any other potential cause for the increased mortality. That wasn't sufficient for you, was it?
CHAMBERS: Say again, sorry.
SKELTON: That list wasn't sufficient for you? It hadn't been sufficient?
CHAMBERS: I -- we, we'd never -- we never saw that list.
SKELTON: So which of those bits of information? I can take you to the document, it's INQ0003671.
CHAMBERS: The -- the specific bit of information was the concerns he had raised about Baby K [Child K] with Sue Hodkinson on 15 April.
SKELTON: Just look at the list. I want you to tell me what was new for you and when you learnt it. If we go to the second page, please, towards the bottom you will see a summary. If we could actually have both the second page and the third page on the screen so we can see the list of six points. If you run through that list, was any of that news to you in 2017 or did you know that really from then --
CHAMBERS: I -- I -- I -- this best case paper, if that's what this was, that came out of the Simon Medland meeting was not something that was ever shared with the senior Management Team.
SKELTON: Not my question. Which of those bits of information were you not aware of in 2016?
CHAMBERS: In 2017.
SKELTON: Or '16, '16 I said, but '17 if you want as well?
CHAMBERS: I think by 2017, and maybe even 2016, some of this I think was shared with the Royal College by the paediatricians.
SKELTON: Yes.
CHAMBERS: Some of this I think featured implicitly in various iterations of the Thematic Review.
SKELTON: Yes.
CHAMBERS: None of it was explicitly called out. The -- so I suppose, you know, you, you -- you could argue that some, if not all, of this may well have been known.
SKELTON: Yes.
CHAMBERS: But -- but it just -- it just was -- it was just implicit rather than explicitly called out.
SKELTON: But it would certainly be improper, wouldn't,
it to characterise those factors if they were known in 2016 as unsubstantiated allegations, wouldn't it?
CHAMBERS: Well, the number of neonatal deaths in the period is highly unusual. That's a fact. The number of unprecedented, unexpected and unexplained deaths/collapses is highly unusual I would have to take guidance on, but, yes, I'm assuming it is, although cause of death is uncertain. So unsubstantiated? And you are making this in reference to which point?
SKELTON: So you said repeatedly to the board in 2017 that the Consultants' concerns were unsubstantiated?
CHAMBERS: Well, what they -- their concerns were not clearly articulated. They were, they were -- they were implicit, not explicit. It was very difficult to really make sense of what was being said. When, when Consultants were pressed they, they -- very explicitly they quite honestly said: We just don't know. So the unsubstantiated element to this is that quite simply all we really knew was that there had been an unexplained increase in neonates, which is unusual, and that there was a link to a single member of staff being on duty at more times than others and that there was, at best, gut feeling.
SKELTON: You and the Executives knew all of that
information in 2016?
CHAMBERS: I -- it was never presented in that way. It was -- it was always presented as, as a feeling rather than really strong, I'm reluctant to use the word "evidence", but just it was, it was -- it was just a gut feeling.
SKELTON: But you know now, Mr Chambers, looking at that list, those are not feelings recorded there. They are facts, aren't they?
CHAMBERS: But what was presented was feelings.
SKELTON: No. All of those facts were presented to the Executive in --
CHAMBERS: They.
SKELTON: -- 2016.
CHAMBERS: They -- they were presented as: This is our gut, this is our ... And, and in hindsight, yes, I mean, maybe gut feelings is, is, is -- is a -- is something that is really strong, but it was never presented with the clarity that you have presented it here.
SKELTON: Did you ever ask them to present it?
CHAMBERS: Well, in so much as I've often -- I've actually asked myself this question lots of times, you know: why did it take Simon Medland to come along and suggest that we write down or write down your best points. But, in truth, I thought that's what the Thematic Review had done.
LADY JUSTICE THIRLWALL: We are now at half past 5, Mr Skelton. I am not stopping you, but we do have to have a break for the shorthand writer.
MR SKELTON: We do. I have got a relatively short issues, but I'm obviously in her hands.
LADY JUSTICE THIRLWALL: Yes, she's already done more time than we really should expect. We will take a 10-minute break until 20 to 6.
(5.30 pm)
(A short break)
(5.40 pm)
LADY JUSTICE THIRLWALL: Mr Skelton, I will let you finish your point and then we will discuss where we go next.
MR SKELTON: Thank you. Mr Chambers, a last and brief issue from me and it's a topic which I think Mr Baker, who also represents a group of Families, will pick up with you. But essentially it's this: it's a last opportunity from my perspective to give you the chance to speak with empathy --
CHAMBERS: Yes.
SKELTON: -- and speak with insight about the events of
2016 and 2017. By July 2016, you had the position that you had a group of neonatal Consultants who suspected that their nurse, Lucy Letby, had murdered the babies on the unit and we know that from all the evidence we have received and that came to the attention, that suspicion or concern came to the attention of the Executives by 2016 certainly around the summer. You have at that stage an enormous asymmetry of knowledge or suspicion. The Families are grieving still, but they have no idea that the paediatricians suspect they are grieving because their children have been murdered and you have the hospital and the Executives who are thinking and looking into that issue. You must understand from their perspective they needed to be told of those concerns and they needed to be told what investigations were being conducted by the hospital; do you accept that?
CHAMBERS: Absolutely.
SKELTON: And that included the Royal College review, which involved many of their children, Jane Hawdon's review, which involved many of their children, and Dr McPartland. They needed to have been engaged in all of those processes, do you accept that?
CHAMBERS: I absolutely accept that.
SKELTON: And one of the reasons, not simply a moral
reason, is that they could have added in their input both factually, but also they could have said to you and the Executives: These investigations are not good enough. You need to call the police ... Because that is their prerogative, isn't it? If they think their children have been murdered they have every right to say to you: The only organisation possible to investigate these activities is the police. Do you understand that and accept it?
CHAMBERS: I -- I accept that.
SKELTON: Lastly on the Coroner. I appreciate these are questions which I will have to put to Mr Harvey when he gives evidence, but the Coroner held an Inquest into Baby A [Child A]'s death on 10 October 2016. At that Inquest Dr Saladi and Dr Jayaram gave evidence and neither of them indicated that they suspected Lucy Letby had murdered [Child A]. The hospital was represented by Louis Browne, who was just about to become a KC so he was very senior counsel. He didn't indicate that and he will explain whether or not he knew or not about the concerns that were going on at that time. But it does appear that by hook or by crook the Coroner was not informed that there were suspicions about that child's death. That was unacceptable, wasn't
it?
CHAMBERS: It's -- it clearly, in hindsight, is absolutely unacceptable. The context that we found ourselves in at the time, these matters weren't clear. I am not aware that what -- what the KC Louis Browne had been told. I am not part of any of these Coronial processes. But what I am absolutely sure about is that there would have been no deliberate not sharing openly and honestly with the Coroner the concerns. I don't know why Dr Saladi and Dr Jayaram didn't share those matters with, with the Coroner through that Inquiry -- through that Inquest, but I'm absolutely certain it wouldn't have been any, any sort of an instruction from the Countess, the Hospital Trust. And I think in their evidence, the doctors' evidence, they don't suggest that. But it does feel to me that maybe that was something that should have been shared and I can't explain why it wasn't.
SKELTON: You had no personal involvement in the Inquest process?
CHAMBERS: No, no.
SKELTON: The Coroner, Mr Rheinberg and his then deputy, and then became Senior Coroner Mr Moore are clear that they were never told about the suspicions in respect of Lucy Letby during this period of time, 2016. So far as you were aware, is that correct?
CHAMBERS: In 2016, that's possibly the case. I can't confirm one way or another. I am sure that in 2017, the Coroner were made aware of the concerns that the doctors had raised. I honestly can't tell you what, what the Coroner was told in 2016 or -- yes.
MR SKELTON: Thank you.
LADY JUSTICE THIRLWALL: Thank you, Mr Skelton. Now, Mr Baker, well, really all counsel, it seems to me it has been a long day already for this witness. I imagine that you have got a little time. I think, Mr Kennedy, probably a bit less? No time at the moment. MR KENNEDY: I think having heard the evidence I will not ask any further questions. I will just be around and I can deal with it by way of submissions, if that assists.
LADY JUSTICE THIRLWALL: Thank you. Then, Ms Blackwell, you have got how long?
MS BLACKWELL: At least 20 minutes.
LADY JUSTICE THIRLWALL: So shall we say half an hour. So it seems to me we might be better doing this tomorrow morning. Everyone is nodding. I imagine that's --
Sorry, if I can just speak to you, Mr Chambers. I had considered an early start tomorrow morning, but I think that would not be convenient for those who are coming some distance. So I hope that it will be convenient for you, you haven't really got much choice about it --
CHAMBERS: No, no, I am happy to support.
LADY JUSTICE THIRLWALL: -- to come at 10 o'clock tomorrow morning.
CHAMBERS: Sorry, say again?
LADY JUSTICE THIRLWALL: 10 o'clock tomorrow morning. May I make one thing crystal clear in case it hasn't previously been made clear, that there should be no communication between you and your lawyers or indeed anybody else about the evidence that you are giving to this Inquiry.
CHAMBERS: Thank you.
LADY JUSTICE THIRLWALL: We will start again tomorrow morning at 10 o'clock. Thank you all for the long day.
(5.49 pm) (The Inquiry adjourned until 10.00 am, on Thursday, 28 November 2024)
Witnesses:
Tony Chambers (continued): Former Chief Executive Officer, CoCH
Ian Harvey: Former Medical Director, CoCH
Questions by MR BAKER
LADY JUSTICE THIRLWALL: Mr Baker.
MR BAKER: Mr Chambers, I ask questions on behalf of 12 Families or The Families of 12 children. Can I take you back to something you said yesterday morning. You said: "I thought -- I agree and I have always felt that the concerns that they, the Consultants, were raising were always based upon their honest belief and their concerns as they understood them to be." In the afternoon, you said: "Clearly, there's never been a doubt in my mind, ever, that those doctors had the safety and well-being of babies at the front of their minds." Does that represent your belief in 2016, that these were issues being raised by the Consultants in good faith?
CHAMBERS: Absolutely. Yes.
BAKER: Can you see the significance of that now, even with reflection?
CHAMBERS: I think in my evidence yesterday, I -- I recognised that what I was hearing the Consultants say
was delivered in absolute good faith, but I also said that, from my own experience and the experience across the NHS more widely, is that the causes of unexplained increases in mortality from experience have always been multi-factorial. So I clearly was reflecting on what I was hearing from the doctors, but I was also considering what I knew to be facts from previous experience across the NHS. So it was never binary. It wasn't -- it was never -- it was -- it was, I suppose, a binary position.
BAKER: You accepted, on multiple occasions put to you by Mr Skelton, put to you by Mr De La Poer, that the paediatricians were the experts in the room when it came to these issues, these issues of neonatology and paediatric care?
CHAMBERS: They were our experts, they were our doctors and they were the ones that were closest to these issues. But, equally, what they were presenting was I think it may have been clear in their mind that they were making themselves understood but, in truth, it was never quite as explicit as that. It was quite implicit. So it was felt that we needed to try and establish the causes because we understood from history that it was always not a simple single thing; it was always multi-factorial.
BAKER: You see, what you should have understood from history, from the case of Beverley Allitt, from Shipman, from all of the other cases of healthcare homicide, that often the signs at the start are subtle and need investigation and that safeguarding is crucial; do you accept that?
CHAMBERS: We did or I did -- was aware of the -- less aware of the Shipman stuff but certainly, more recently with the Beverley Allitt, and I think the difference between the two, and it's not even a subtle difference, but one of the differences between the two is in the Beverley Allitt there was actual evidence of deliberate harm. What we had was --
BAKER: There was evidence here.
CHAMBERS: What we had, sir, was gut feelings and nothing was presented in a very explicit way that would make you feel that this was the only explanation for the matters that we were facing.
BAKER: It doesn't need to be the only explanation. It just needs to be a possibility that requires investigation; do you agree?
CHAMBERS: And that's what we did.
BAKER: We will come on to that in a moment. But the good faith element is crucial for this reason, and let
me take you to a document, INQ0003014. Now, this is the Speak Out Safely policy. If you look at, first of all, page 10, there's a reference here to malicious allegations: "Where a deliberate, false or malicious allegation is made the person concerned may be liable to action against them under the Trust's disciplinary procedure. The decision on whether to invoke that procedure will be taken by the Chief Executive after due consideration of the designated officer's investigation and report." So, first of all, it is correct, isn't it, that the Speak Out Safely policy identifies that action should only be taken in respect of malicious allegations, ie those that are not made in good faith?
CHAMBERS: That's what it says here, yes.
BAKER: An allegation or concern that is raised in good faith should be regarded as a protected disclosure and protection should be given to the whistleblower in those circumstances. Do you agree?
CHAMBERS: I think it -- at the time in, at the very start of these discussions or concerns being raised, it was being raised very much around trying to establish and understand the causes of an unexplained increase --
BAKER: That isn't the question I asked you.
CHAMBERS: -- in mortality.
BAKER: Forgive me for interrupting you, that isn't the question I asked. The question I asked is: does the Speak Out Safely policy regard complaints or concerns raised in good faith as protected disclosures and that the individual raising those disclosures should not be the subject of recriminations as a consequence?
CHAMBERS: That's what the policy says.
BAKER: Now, if we go back, please, to page 2 of the policy, and to the penultimate paragraph: "All concerns raised by staff about patient care will be dealt with seriously, promptly and be subject to a thorough and impartial investigation where necessary. Managers have a particular responsibility to protect patients and to handle concerns about their care in a way that will encourage the voicing of genuine misgivings, while at the same time protecting staff against unfounded allegations. No recriminations will follow reports which are made in good faith about standards of care or possible abuses. All staff must comply with the Trust values and put the patients at the heart of everything they do." Does that incorporate you as well, "all staff"?
CHAMBERS: All staff, yes.
BAKER: The policy requires or encourages members of
staff to raise concerns: "If staff are uncertain about whether or not to express a concern, it is normally better for them to voice this rather than to remain silent. Often discussing an issue normally with their immediate manager will provide an opportunity to view the matter from a different perspective. From there it can go forward and be dealt with if necessary. Delay in expressing concern could lead to recurrence and/or make investigations more difficult." The Speak Out Safely policy is pivotal to patient safety, isn't it?
CHAMBERS: Agreed, yes.
BAKER: Because members of staff are the eyes and ears of the organisation and they are the ones who are often best placed to bring to the attention of management serious safety issues?
CHAMBERS: That's absolutely right yes.
BAKER: In acting in good faith, as you agree they were, these Consultants were doing exactly what they were supposed to do, weren't they?
CHAMBERS: Absolutely and we, we acknowledged that at the time and all the way through these inquiries.
BAKER: Did you? Can we go, please, to a note, you have seen it already, it's INQ0015642 and page 48. It's a note you know from 12 May 2017, timed at 11.45 am. I would like you to remember the time, it's important?
LADY JUSTICE THIRLWALL: 2014.
MR BAKER: 20 --
LADY JUSTICE THIRLWALL: What is the date on it? 2017?
MR BAKER: 2017, my Lady, yes. Timed at 11.45 am and it's an important note. It's a note of a conversation you had in the hospital I am assuming with Sue Hodkinson.
CHAMBERS: It would have been, yes.
BAKER: "RJ SB, Dr Jayaram and Dr Brearey plan re management, (1) GMC, (2) actions from grievance, (3) mitigation from SOS whistleblowing, (4) action plan to manage out." Now, this is clearly a note, isn't it, of you setting out a plan to Sue Hodkinson that the Consultants would be referred to the GMC, and then managed out and that the reference to mitigation from Speak Out Safely or whistleblowing is written in because you knew that this would be contrary to the Speak Out Safely or whistleblowing policy; that is correct, isn't it?
CHAMBERS: I -- these are not my notes, these are from Susan Hodkinson's notebook. I would have never seen these notes and I don't remember any discussion around
mitigating Speak Out Safely or whistleblowing policies and I, to be honest, wouldn't have had the specific detail on that.
BAKER: Can we be clear about what you are saying. Are you saying that Sue Hodkinson wrote this in her notebook because you didn't say it?
CHAMBERS: I -- the context to this meeting is really important. We discussed it yesterday. It was --
BAKER: No, no, we will come to context in a moment?
CHAMBERS: But I think it is critical --
BAKER: No, no, I promise you --
CHAMBERS: -- to understand the nature of the note.
BAKER: -- we will come to context in a moment. Can you answer my question, please? Are you saying that this was written in the notebook and you didn't say it?
CHAMBERS: I don't remember saying it and the conversation with Ms Hodkinson was following a meeting that I had had with the police earlier that day at 9.00 am. This was a fortuitous one to one, it wasn't a planned meeting and, at that meeting with the police, I left that meeting unsure as to whether the escalation that we had taken to raise these matters to the police was going to result in a police investigation.
BAKER: Can I --
CHAMBERS: My feeling was that we then -- if the police did not continue into a police investigation, which they did -- they ultimately did, then there may well be a patient safety risk, where there's been a breakdown in relationships between doctors and nurses, and I was just flagging with Sue what are the options if we find ourselves faced with that risk. It was not a plan.
BAKER: Can I remind you what said in your witness statement, please, at paragraph 629 about your beliefs regarding the progress of the police investigation. At paragraph 629 of your witness statement -- and here you are dealing with the 12 May 2017, this note --
CHAMBERS: Sorry, what page is this?
BAKER: I don't know the page, I'm afraid. I have just got the -- it is --
LADY JUSTICE THIRLWALL: It's internal page 173.
MR BAKER: I am grateful, my Lady.
LADY JUSTICE THIRLWALL: It is page 173 of your statement.
CHAMBERS: Thank you, thank you, my Lady.
MR BAKER: So at paragraph 629 you say: "On 12 May 2017 at 11.45 am [and you refer the page number and reference], I had a meeting with Sue Hodkinson about Dr Jayaram and Dr Brearey and the potential options for managing the two Consultants
should Cheshire Constabulary decide not to commence a formal investigation." It's rather surprising, isn't it, that in this statement you don't say that "I have no recollection at all of this meeting occurring"?
CHAMBERS: It's, it is absolutely the case that I have no recollection of this conversation. This matter was only really brought to my attention when we looked at the disclosures that had been shared as part of my R9 request to the Inquiry. It -- it took a lot of reflection on my part to actually remember the conversation.
BAKER: Well, you just told us you couldn't remember the conversation.
CHAMBERS: I don't remember having it. I only had my memory jogged when I had been drawn to the attention of the notes in -- in, in Ms Hodkinson's notebook.
BAKER: What you say at paragraph 629 is: "At the time, the police did not seem to feel that a criminal investigation was likely and therefore I needed to have it clear in my mind what would happen if this stance was not accepted by the Consultants and there was resistance to try to move forward and focus on the safety of the NNU." So it is clear when you wrote your witness
statement that your memory of events was that, as of 12 May, you didn't believe the police were going to proceed with a criminal investigation?
CHAMBERS: It wasn't clear on leaving that meeting, on 12 May, that there was going to be a police investigation.
BAKER: You say here it was unlikely, don't you, that there would be?
CHAMBERS: Well, I -- I -- it wasn't clear in my mind whether it was likely or unlikely. It, it was not something that -- that formal decision hadn't been made. I had requested that the police have another conversation with the -- with the clinicians and, following that conversation, then they could -- as the experts around whether there would be a requirement, whether this met the requirement for a criminal inquiry, they could then arrive at their view.
BAKER: What you had told the police at that meeting was that there was no evidence to warrant a police led investigation?
CHAMBERS: And what I further went on to ask is, "But we need your help, you're the experts in this".
BAKER: Let's look at the note of the meeting then, it's INQ0003076, and page 6, please. So we can see here, towards the bottom of the page, the paragraph that
begins "TC stated", and TC is you in the context of this, this note. Can you see that?
CHAMBERS: Yes.
BAKER: "TC stated it would become a wider GMC issue as there becomes a point where a group of clinicians who are not prepared it take the recommendations of RCPCH are blocking the ability to move forward, which creates a more difficult and dangerous environment for sick babies. TC added that the Consultants have made their points and they have been seen and not judged as sufficient to warrant a police-led investigation." First of all, that's entirely misleading, isn't it, about the status of the evidence at this stage?
CHAMBERS: What -- remember, these are the notes of a -- of a meeting that, from memory, I think by this time, was at least the second, if not the third time that we had met with the police to discuss these matters. At those previous meetings, we had shared very openly and a detailed description of the concerns, as they had been described to us by the Consultants and also the outcome of the evidence from the various inquiries that we had done, and also we shared with them the opinion that we had sought from Mr Simon Medland around -- in preparation for any police investigation so, at that time --
BAKER: These --
CHAMBERS: -- everything was pointing away from criminality.
BAKER: These are your words; do you accept that?
CHAMBERS: I -- that paragraph will represent the discussion that went on. I don't remember specifically the words that were used.
BAKER: Because you have suggested that people have a perhaps annoying habit of writing down things that you don't say, I want to be clear: you accept that these accurately record the words that you would have used in this meeting?
CHAMBERS: In that paragraph, this is page 6 of I'm not sure of how many notes.
BAKER: It begins "TC added", if we just take that paragraph in isolation.
CHAMBERS: I am happy to take that paragraph in isolation but the context to the paragraph is the third, fourth paragraph in the notes that -- that we have in front of us where it says: "TC is satisfied that Cheshire Constabulary would determine whether or not there has been any criminal intent. COCH have maintained an open mind and would welcome an inquiry if necessary but this is never felt the issue."
BAKER: You could --
CHAMBERS: "It was felt amongst the Executives that we just needed it to be checked." And that was the --
BAKER: You could hardly stand before Cheshire Constabulary and suggest that you had greater jurisdiction to investigate a potential crime?
CHAMBERS: And that is absolutely why we sought the higher authority and we sought their input.
BAKER: But what you were saying in the penultimate paragraph is very clear, isn't it, you are making the point that you do not believe that there is any evidence to warrant a police-led investigation and you are misleading by the Cheshire Constabulary by suggesting to them that this matter has been fully investigated and there is no evidence to warrant a police investigation?
CHAMBERS: I think I am representing what, what our thoughts were at the time --
BAKER: You are?
CHAMBERS: -- which is that, that the evidence or the outcome of the enquiries to date were pointing away from deliberate harm. We had had we had had guidance from Simon Medland that suggested that the -- from his discussions with the -- with the paediatricians, as an independent ear, listening to their concerns, that
these did not meet necessarily meet the threshold of a criminal investigation.
BAKER: You --
CHAMBERS: I think that's what the paragraph is saying.
BAKER: You are making clear at 9.00 in the morning, the same day the note is written by Sue Hodkinson at 11.45, you are making clear that if the Consultants do not accept your decision to move on, you are going to refer them to the GMC and potentially ruin their careers?
CHAMBERS: No, that is not what that note represents. That note represents a discussion that if the police inquiry does not go ahead then we may have a problem, as it was described, I think, further in -- in the note above.
BAKER: Why is that a matter for the GMC? Why is it a matter of professional misconduct?
CHAMBERS: And, and I -- I -- we had had this conversation with the police it was unclear whether there was going to be a police investigation. I had had a fortuitous one to one scheduled with, with Ms Hodkinson and I reflected with her that, if we can't help our Consultants to move forward, then we would have a problem and we -- and I -- we were almost just exploring how we might how, how that might need to be
resolved. It was never a plan.
BAKER: You see, I suggest to you this shows a very clear insight into your character: that you were putting pressure on whistleblowers, contrary to the hospital's own patient safety policy, and you were planning to have them disciplined and moved on if they didn't accept it?
CHAMBERS: No, I think it's -- that is not the interpretation of this or my character. My character is such that we always had a focus on patient safety and the well-being of our -- of our staff.
BAKER: Can I ask --
CHAMBERS: We had -- we had taken independent expert guidance from the Royal College. They had identified a series of recommendations --
LADY JUSTICE THIRLWALL: I don't want to cut across you, Mr Chambers, but you have given that evidence already this morning, and indeed yesterday, and we are quite -- as you know we are over running --
CHAMBERS: Apologies.
LADY JUSTICE THIRLWALL: -- and I want you to be able to give such further information as you want us to have but it's probably best not to repeat what you said already.
CHAMBERS: Apologies.
MR BAKER: Thank you, my Lady. Can I ask you then, again, something that will inevitably concern The Families: that you gave evidence that in March 2017 you were sat on the train to Leeds discussing the issues surrounding the Consultants with Tracy Bullock, another Chief Executive; do you recall giving that evidence?
CHAMBERS: I do, yes.
BAKER: Now, at that time, in March 2017, The Families -- because the Trust in its opening conceded that there was a total failure to fulfil its duty of candour, The Families had no knowledge at all about these issues. Is it right that the only prospect that they would have of finding out about those issues was coincidentally sitting behind you on a train to Leeds?
CHAMBERS: I think that's really unfair. The conversation that I was having with, with a peer, I was desperately trying to establish in my own mind whether I was missing something, I was seeking guidance. I had explained to Ms Bullock that -- all the work that we have -- that we'd done and I also explained that we had had a meeting with the paediatricians earlier, and that we were --
BAKER: You gave evidence about the context and
content of the conversation.
CHAMBERS: What I'm --
BAKER: What I am asking you about is: why did you think this was an appropriate conversation to have on a public train?
CHAMBERS: It was a conversation with a colleague. We were not discussing patient details; I was just discussing my own thoughts and feelings.
BAKER: You see the lack of candour in this case is staggering for one reason: that it keeps the Families in the dark. But I would suggest to you also it goes hand in hand with your general approach to this: that you took every step possible to keep the Consultants' concerns from becoming public?
CHAMBERS: I -- I think as I explained yesterday, the duty of candour is -- it's a difficult balance between being -- between a duty of candour and a duty of care. This was a balance that we were or I was trying to get the balance right and, clearly, that was not something that I -- I got right. I am absolutely clear in my own mind that we could have and should have done better in terms of the communications with the Families.
BAKER: Well --
CHAMBERS: It was also clear in my mind that I did not want to further add distress to families when matters
weren't clear to people who were already grieving. So it was, it was a regret that I got the balance wrong but it was not around trying to keep anything hidden.
BAKER: First of all, choosing what families would or would not want to hear is patronising and paternalistic, isn't it?
CHAMBERS: Yes, I can see that.
BAKER: The Countess of Chester Hospital, in their opening to the Inquiry, conceded that there was a total failure by the Trust to fulfil the duty of candour. Do you take responsibility for that failing?
CHAMBERS: I think it is something that, in my reflections yesterday, I absolutely acknowledged that we hadn't got that right: we could have done better, we should have done better.
BAKER: The --
CHAMBERS: I should have done better.
BAKER: Contacting the police. The inevitable consequence of that would be that this would all have become very public, wouldn't it, and we see in evidence from Dr Brearey and from Mr Medland this dichotomy that you appear to have been behind: that it's a choice between calling the police and leading to everything becoming public, the toothpaste coming out of the tube, or protecting patient safety?
CHAMBERS: Again, that isn't correct. The -- we took action. We -- one of the -- Letby was identified as being on duty more times than another member of staff. She was redeployed whilst we sought to try and establish what the causes might be. And the detail of those outcomes from those investigations have been discussed thoroughly in this Inquiry already.
BAKER: Conscious of the time, my Lady. I am going to deal with one issue and then put a final point to you. But you said in your evidence before the Inquiry yesterday, and indeed you repeated today, that the purpose of instructing Simon Medland QC was to facilitate a referral to the police?
CHAMBERS: That was absolutely my understanding.
BAKER: Well, first of all, can I take you to INQ0003076, please, which again is the note of a meeting of Operation Hummingbird, and to page 4. Again, this is a meeting 9.00 am on 12 May. You immediately, following this meeting, went back to the hospital and had a conversation with Sue Hodkinson about steps to be taken in respect to the Consultants. But, at the bottom of the page: "TC added through all of this ..." Can you see, it is a section which is describing what you were saying? The list begins at the bottom of page 4 but continues on to page 5, and the fourth item "QC", reference to Mr Medland: "... purpose to involve was to help clinicians understand the difference between what they thought was criminal evidence and something that may not constitute as criminal evidence." Now, that's what you were telling the police on 12 May the purpose of Simon Medland was?
CHAMBERS: Yes, no, in my misunderstanding, the purpose of Simon Medland was to assist the Trust in preparing an approach to the police, understanding what information they would require and to prepare the bundles for them. The note there, I think, represents my understanding of the outcome of the meeting that he had with the -- with the paediatricians, and this was his description of what he felt the task had been. I did not instruct Simon Medland. That was an instruction that came from -- from, I think, both Duncan Nichol and also Stephen Cross.
BAKER: Well, let me help refresh your memory. I mean, you have given clear evidence just now about what you instructed Simon Medland to do and how we should interpret your words on 12 May. Can we go to INQ0015670 [not found - should be INQ0005857], please.
This is Simon Medland's notes. Paragraph 2: "Simon Medland began by stating who he was and why he was here. Been instructed by the hospital to bring an independent objective view to present situation and see if formal report to police was presently merited, in other words whether there is presently information giving rise to reasonable grounds for suspecting that a criminal offence has been committed in respect of any one of the neonatal deaths in question." What you said just now to the Inquiry was utterly misleading, wasn't it?
CHAMBERS: Not at all. All I am explaining to you is my understanding of what I thought Mr Medland was -- was there to do. The discussions around the specifics of the instructions, and I have no doubt at all that Mr Medland was, was seeking to do what he described here, but that was not what I believed what we had -- what we'd asked him to do. I wonder whether the instructions just developed through conversations between Stephen Cross, who was the person who had the direct relationship -- instruction relationship with Mr Medland.
BAKER: You see, I suggest to you that these words here, set out by Mr Medland, describing his instructions and your words used to the police on 12 May are exactly
the same as to what the purpose --
CHAMBERS: Absolutely. I think when we were at the police I was very cognisant of the notes from Simon Medland and was just reiterating those.
BAKER: You sought at every stage to stall and obstruct the police being called or this being made public and, ultimately, sought to ruin the careers of the Consultants who brought this to your attention? Now, that is utterly reprehensible behaviour and unfitting of a CEO in the NHS, isn't it?
CHAMBERS: Had that been what I had done, then it would be. But I think it's an outrageous statement and I fully -- and I do not believe that represents my actions.
MR BAKER: Thank you, my Lady I have no more questions.
LADY JUSTICE THIRLWALL: Thank you, Mr Baker. Ms Blackwell?
Questions by MS BLACKWELL
MS BLACKWELL: Mr Chambers, I have some questions finally, based around your state of knowledge, questions that you were asked yesterday and also this morning about what you were told at various points in time and about your behaviour and that of others. So we need to look with fresh eyes at some documents which have already been electronically presented, and I will take those matters, my Lady as efficiently as I can.
LADY JUSTICE THIRLWALL: Of course, thank you.
MS BLACKWELL: First of all, please may we put up the notes of the meeting of 29 June 2016, which are at INQ0003371. Thank you. Now, if we look at the top right-hand portion of the page, we can see the initials and names of those present: you, Alison Kelly, Ian Harvey, Dave Semple, who was the Divisional Medical Director; is that right?
CHAMBERS: For Planned Care, yes.
BLACKWELL: Yes, Dr Brearey, Dr Jayaram, Dr Saladi, Lorraine Burnett and Stephen Cross. Now, you have been taken to these notes before. The first question I want to establish with you, Mr Chambers, is what was the atmosphere like during the course of this meeting?
CHAMBERS: Sorry, can you repeat that?
BLACKWELL: Yes, what was the atmosphere like during the course of this meeting?
CHAMBERS: Oh, right. Well, this was the first time that these matters had been formally discussed with me.
BLACKWELL: Yes.
CHAMBERS: So my personal feelings were that I was shocked. I wanted to listen and understand. I wanted to be able to reflect, so that we could establish a plan.
BLACKWELL: Yes.
CHAMBERS: The atmosphere in the meeting was very open, was very friendly, and people were very candid. Despite it being a very difficult meeting, it felt that this was a team of people coming together, trying to resolve some very difficult issues.
BLACKWELL: Let's look at the top of page 2, please. We can see that Dr Brearey says: "More than just an association with this nurse." Dr Jayaram says: "How? Cannula, air embolism, crystal ball, unquestionably got something going on at the Countess but what?" Does that reflect what you remember as being the type of suggestions that were being made during the course of the meeting?
CHAMBERS: Yes, it reflects it very well.
BLACKWELL: Right. A little further down -- you have already been taken to this -- you say: "Why did we [and that should be 'not call the police']?"
You go on to say: "If Twins and Triplets, why did the Trust take them on?" What did you mean by that comment?
CHAMBERS: We were -- well, I was just surprised that we had this level of complexity and acuity being cared for on our neonatal unit. Normally, this kind of history, the plan would normally have been that they would be in a higher acuity, probably a Level 3 unit. Normally, I would have expected these kind of cases to have been cared for at Arrowe Park.
BLACKWELL: Right. So were you questioning whether or not the Countess was the right place for those types of babies?
CHAMBERS: I was aware that the Countess, from my own eyesight when I had been walking around -- that this was a unit under -- under pressure, that staff had explained to me that they felt that at times the unit felt chaotic. I was concerned when I heard this was part of those issues being generated, by looking at caring for babies that perhaps we shouldn't have been caring for.
BLACKWELL: Did you know at that time that there were no more than two Consultant ward rounds a week?
CHAMBERS: It wasn't clear to me at that time, and had it've been then it's difficult to see how a unit that is
setting itself up to care for Level 2 types of babies can satisfy itself that two Consultant ward rounds a week would meet the requirements of a Level 2 facility.
BLACKWELL: Then finally, in this comment: "Can we explore more before we go to the police?"
CHAMBERS: Yes.
BLACKWELL: Those were your thoughts at this meeting?
CHAMBERS: Yes.
BLACKWELL: Could we go to page 3, please, finally, and just look at your comment in conclusion. Does that read "[Thank you] to clinicians", at the very bottom: "TY to clinicians."
CHAMBERS: Yes, yes.
BLACKWELL: What were you thanking them for?
CHAMBERS: I am thanking them for their -- bringing these matters to my attention, I am thanking them for what they do every day to keep our patients safe and well cared for, I am thanking them for being so open and candid and I am thanking them in advance of any actions that we would need from them to help us resolve these matters. I was, if you like, sort of thanking them in advance of that.
BLACKWELL: Thank you. We can take that down, please, and
may we replace it with the notes for the meeting of the following day, INQ0003362. These are the notes of the meeting of 30 June, prepared by Stephen Cross. We have already looked -- not you and I, Mr Chambers -- but the Inquiry has already looked at notes of the same meeting prepared by Sue Hodkinson?
CHAMBERS: Yes.
BLACKWELL: But these aren't Mr Cross' notes and I want to take you to page 2, please, and to the comment in the middle of the page attributed to Jim McCormack, where we can see: "Suspicious in last 18 months, members of staff -- astounding". Now, we know from Sue Hodkinson's notes that she has also made a record of him referring to Beverley Allitt and Shipman at this point in the meeting. Mr Cross hasn't made a note of that. Is that something that you remember Mr McCormack saying during the course of that meeting?
CHAMBERS: A reference to Beverley Allitt?
BLACKWELL: Yes.
CHAMBERS: I -- I have no memory of that.
BLACKWELL: Right. It's been suggested to you that that should have resonated in your ears and that that should have been something which you repeated to others. You've said this morning that you were aware of both cases. How much in the forefront of your mind were each of those cases, during the course of this meeting and going forwards?
CHAMBERS: It's fair to say it wasn't right at the front of my mind. I was, what was right at the focus and the front of my mind was trying to ensure that our unit was safe, that we were keeping an open mind about any potential causes and I don't remember any specific reflections that I may have had at this time, in respect of Beverley Allitt.
BLACKWELL: Well, if we look further down the page, we can see that, towards the bottom, you are making these comments: "Recognise not easy. Set of protocols needed backbone. Numbers. Network. Inevitable consequences of where we are." Then, over the page, please, your comments five lines down: "By lunchtime tomorrow, protocol or plan." So what were you attempting to do?
CHAMBERS: Yes. So it's worth remembering this was the second meeting that I had had in respect of these matters, and we were already trying to establish a plan and protocol for the redesignation of our neonatal
unit --
BLACKWELL: Thank you.
CHAMBERS: -- and the purpose for that was safety.
BLACKWELL: If we look towards the bottom of the page, we can see David Semple say: "Assurance re what's happening after two weeks." That is a reference to Letby going off on leave for two weeks?
CHAMBERS: Yes.
BLACKWELL: You: "Open mind. Police exclusion. Stephen Cross challenge re practice of clinicians." Then: "Assurance in two weeks." Then Dr Brearey, at the bottom of the page: "Care is not perfect. Common theme of this nurse. Doesn't take away concern [for] this individual."
LADY JUSTICE THIRLWALL: "Re this individual".
MS BLACKWELL: I am so sorry, my Lady.
LADY JUSTICE THIRLWALL: "Concern re this individual."
MS BLACKWELL: "... concern re this individual. Not change my opinion. Spoke in May to AK and IH about his concerns." Over the page, in the middle of the page,
Dr Jayaram: "Concern potentially member of staff causing harm. Recurring theme. These babies should never have died." Then you say: "If the nurse is removed would deaths stop." Dr Brearey says: "The risk would be reduced", not removed but reduced. Do you remember that conversation?
CHAMBERS: I -- I do. And I think it reflects the evidence that I've given all the way through this Inquiry, is that there wasn't an absolute clarity of what the causes of the unexplained increases in harm were. There was definitely concerns being raised around the conduct of one individual but there was also serious concerns being raised around the demand, the acuity and the care on the unit. That led, inevitably, to the actions that followed, which was the removal of Letby and then the commencement of various enquiries.
BLACKWELL: Thank you. Page 5, please. Towards the bottom, Dr Brearey again: "I made my views clear. Nagging after last night. We will take on observations. Felt observations made before meeting. Datix. Problems with governance
facilitator." Then over the page, we can see there is a reference by Dr Jayaram to: "Equipment example. Incubator to EBMA." Then Duncan Nichol: "Review has to take its course. May be inconclusive. May say the unthinkable. States agreed as discussed safety paramount. Will need help across the network. Must stick together." Then your final comments: "TY TC." Is that you expressing thank yous?
CHAMBERS: Thank you, yes.
BLACKWELL: "Regroup tomorrow, plan and comms. View when can this happen. Tough call. Personal, look after each other, one team." What was that sentiment you were expressing?
CHAMBERS: That was just, just recognising that these were very difficult matters that we, we were trying to understand. It's easy, it, it -- I think personal was more around just look after yourselves, work as one team, and keeping an open mind.
BLACKWELL: Thank you, we can take that down, please. I would like to take you now to the notes of the meeting you had with Letby and her parents on 22 December 2016 at INQ0002913. You were explaining in your evidence yesterday that the grievance brought by Letby was split into two parts, that she complained by the way in which the Trust had treated her and that that was with a lack of transparency, which you accepted had some force in it?
CHAMBERS: (Nods)
BLACKWELL: She had also complained about what had been a series of comments made about her by the Consultants. It was being suggested to you yesterday by Mr De La Poer that you may have been manipulated by Letby, who was demanding apologies from the Consultants during the course of this meeting. Can we go to page 5, please, and just look in the middle of the page at what has been recorded as having been said by Letby and SL, who I think is Sue Letby; that's her mother, isn't it?
CHAMBERS: It will be, yes.
BLACKWELL: Yes. You are asked by John Letby: "Have you read the interviews. I can't believe the comments." Mrs Letby says: "Called Lucy an angel of death." Lucy says: "In public areas."
Sue Letby: "Mr McCormack said the Trust is harbouring a murderer, you are harbouring a murderer. Dr V said she is cold and calculated. Eirian Powell said 'What if Letby goes home and kills herself', and Steve Brearey said 'I don't care', and Ravi Jayaram said 'You knowingly deliberate action by Lucy Letby', heard in outpatients by a nurse, someone is deliberately killing babies, in statements, and people named said it." To which you said: "It's not acceptable." Letby said: "It's personal, it's not acceptable." Her mother says: "They have a personal grudge." Was it against that background that Letby, in that meeting, was requiring there to be apologies from the Consultants?
CHAMBERS: It was clear that it was.
BLACKWELL: Right. Was this something that the Executive pushed in circumstances where there was an option not to ask the Consultants to apologise, or was this something that came out of the recommendations from the grievance procedure?
CHAMBERS: It, it was something that was clearly as
a result of the outcome of the grievance process.
BLACKWELL: Thank you. That can come down, please. Now, on 10 January 2017, there was a board meeting, which you were taken to yesterday, by Mr De La Poer, in which you said: "In one of the cases, the cause of death is unascertained which is not uncommon." Mr De La Poer asked you where you had got information to be able to speak in those terms. You made reference yesterday to Dr Nim Subhedar having provided that information. I would like to take you now to INQ0103152, which is an email from Dr Subhedar to Ian Harvey. If we look, first of all, please, at the bottom of the page, and to the email from Dr Harvey that precipitated the response at the top of the page. So on 25 November 2016, Ian Harvey is saying: "Dear Nim, I'm sorry that we couldn't meet yesterday I was hoping to ask you about one aspect of our review. One feature of some of collapses was that the neonatologist said that they were either unexpected and/or didn't respond to resuscitation in the expected fashion. The College reviewers have noted that similar cases have been discussed at the network review group from other units, although Stephen Brearey tells me that
he has no recollection of this. Please could you tell me, are there a group of babies in whom this is a feature and, therefore, have there been similar cases reported at other units. I am happy it discuss by phone if you feel that would be easier or more useful." Dr Subhedar's response on 1 December is: "Dear Ian, thank you for your email. In answer to your question, unexpected collapse without a clear cause is well recognised in neonatal units and we have had a couple of cases at Liverpool Women's Hospital recently. However, I cannot recall discussing any specific cases at network meetings where a baby has died suddenly and unexpectedly without a cause of death having been identified. However, as a network, we have only started collating reviewing deaths in a systematic way trivial recently and the process is still not yet completely robust." Now, that email was not sent to you but did you become aware of its contents?
CHAMBERS: I -- I don't remember being specifically drawn to the content of it but I would have been made aware of Nim's comments from Ian Harvey. I can't recall when but I would have, through discussions, been made aware.
BLACKWELL: Thank you. That can come down, please. The next date in the chronology is 26 January 2017, which was a meeting with the Consultants. We don't need to go to the notes but it has been suggested to you that the tone of the meeting was both intimidating and bullying and that that tone was set by you. Would you like to look, please, Mr Chambers, at paragraph 467 of your witness statement. In this part of your witness statement, you say that you have seen the account of Rachel Hopwood, who was the non-executive director and chair of the Audit Committee -- she's due to give evidence to the Inquiry shortly -- and she gave information in her witness statement, which is at INQ0012969 -- again, we don't need to put it up -- about her opinion of the meeting of 26 January: She says this: "I thought it was reasonably professional, I thought the Consultants seemed under a lot of stress, two Consultants seemed extremely stressed and their whole body language seemed very defensive. I have had much worse meetings in my professional life much, much harsher." Now, you reflect upon that, I think, in your witness statement and also, it's right to say, that Stephen Cross was asked in his witness statement about the meeting and the tone of it, that's at INQ0013007 -- again, we don't need to put it up -- in which he says:
"I wouldn't call it anger. I would call it, you know, a strong line." That phrase of a "strong line", is that something you recognise from your recollection/your memory of how that meeting panned out?
CHAMBERS: I gave evidence yesterday on my reflections of this meeting and I remember the meeting being -- I needed to be clear and direct. I was very professional. I didn't raise my voice. I wasn't angry. But it was an odd meeting because the -- the Consultants, as I think as been described here by -- by Rachel Hopwood, they didn't seem to be able to engage fully in the meeting and the reasons for that I think I explained in evidence yesterday.
BLACKWELL: Thank you. Could we go, please, to INQ0003150, which are the notes of the meeting of 27 March 2017. Now, this meeting was followed by a discussion that you had with Dr Jayaram and Sue Hodkinson, following his disclosure about the circumstances of his eye witness evidence in relation to Baby K [Child K]. Could we go, please, to page 2 of the notes and the middle of page 2, we can see you saying: "I need to know if we do an individual Casenote Review or phone the police."
JM, Julie Maddocks, says: "Given the information, on the balance of probability, illegal activity has caused the deaths." So that's her view. If we then go, please, to page 4, in the middle of the page again, this is you, Mr Chambers: "I thought we had agreed we need to do more now but if we are saying this needs to be done in a different way." Now, that is your reaction it seems from Dr Jayaram's information provided above, that, in his view, what needs to be done is to speak to members of the unit individually, amongst other things. Stephen Brearey's response is: "Don't think we are but the joint review has not offered anything else." Then you say: "As a board we have been guided by everybody that we have a safe unit. You guys, the nursing team, I can't risk babies being nursed in that environment. If there is a forensic dive needed we can do that, get in a higher authority, require authority, we can get on with that." So what were the options during the course of that meeting?
CHAMBERS: If felt to me that we had probably explored, I think, all of the options around seeking independent expert advice, with the exception of the independent -- independent expert advice of the police.
BLACKWELL: Thank you. Can we go to the following page, please, page 5. The middle of the page, your comments: "This is really helpful. Of the 13 deaths we have 8 where we do not sufficiently have a clear answer on. Royal College reviews indicate that there was no single causal factor and we have had the internal review. I can go to the police, that's the position. If we are going to the police, this is what we have done and we have got to the point where we cannot answer all of the questions. Also we need to exclude any other causal factors. It's a significant step as implications are massive from this." Then, finally, please, at page 6: "You say we have shared everything with various stakeholders. We need to do the same with the police." Dr Jayaram says: "I agree with NM. The focus needs to be on the babies who have died. We have discussed a lot of implications to the unit, the Trust and parents and colleagues but this is for the greater good, the future. It's a big issue it's huge." Then Mr Harvey references a meeting with Mother C and Dr Brearey says: "That's a consensus. Morally speaking, we cannot live with ourselves. Keeping from them is difficult for any of the clinicians." You say: "You absolutely believe we have a criminal behaviour?" To which Dr Jayaram says: "We need to clarify it beyond reasonable doubt." Dr Brearey talks about the balance of probabilities and Dr Jayaram says: "The honest answer is that we don't know. It's not been sufficiently explored or reassured there is a subtle distinction." Your response: "To get the distinction, the only thing to do is a police investigation." Now, despite the other concerns that were addressed, was that the firm decision in your mind by the end of that meeting?
CHAMBERS: It, it was -- it was a firm decision in my mind at the end of the meeting but I think the decision was crystallised in my mind during the course of the meeting.
BLACKWELL: Thank you. Just two more meetings now, please. The first -- and we don't need to go to these notes because you weren't at the meeting -- was 27 April 2017 which was the CDOP meeting about which the Inquiry has heard. I would just like to ask you about evidence that has been given to the Inquiry by Nigel Wenham. I think it was during the course of him being asked questions about this meeting. But he told the Inquiry that, in his opinion, the Executives were trying to shut down concerns and they were trying to shut the doors on a police investigation. What are your comments about Nigel Wenham's evidence on that point?
CHAMBERS: Well, my immediate comment is that I think his interpretation of our feelings is wrong. I am unclear as to how he may have arrived at that view. Ian Harvey had been at this meeting and had been very clear and very candid about all of the concerns, all of the investigations. I can only -- I can only comment on that.
BLACKWELL: Thank you. Finally then, the meeting notes from 12 May 2017, which were at INQ0003076. You were taken to these yesterday by Mr De La Poer. You have also been taken to a couple of paragraphs from these notes by Mr Baker this morning. Your evidence so
far, Mr Chambers, has been that it was as a result of how you felt following this meeting as to whether or not the escalation that you had made to the police was going to result in a police investigation that caused you to have the conversation that you had with Sue Hodkinson, in the terms in which we have seen in her handwritten note later the same day?
CHAMBERS: Yes.
BLACKWELL: So I would like to give you the opportunity, please, to -- for us to look at some of the other comments that were being made during the course of this meeting and to seek your comments on them. Can we go to page 2, please. Third paragraph down, "DM", that is Darren Martland the Assistant Chief Constable?
CHAMBERS: Yes.
BLACKWELL: "... had concerns after reading the reviews. Several reviews have been conducted and there is nothing in the reviews, as a non-clinical expert, as to a direct allegation or suggestion of a significant negligence or act that could potentially constitute as a criminal act. If the police were to get involved, they would look at securing and preserving evidence in relation to a criminal investigation. There have been a number of issues raised that have requested service reviews. If the police get involved, it is a criminal investigation
and Cheshire Constabulary would be bound to speak to the families of the babies concerned. This is uncomfortable, as there is no specific allegation at this point to suggest a criminal act. We do not have any reasonable grounds to suspect or believe that this may have been the case." So is that what was being said towards the beginning of the meeting?
CHAMBERS: Yes.
BLACKWELL: Thank you. If we go to page 4, please. Three paragraphs down, Ian Harvey added that: "The content and tone of Dr Jayaram's email, with the assertion that they have not been listened to, hints at a lack of Trust with the Countess Executive Team. The two leads for both paediatrics and neonatologists are aware met with Cheshire Constabulary and that there is going to be potential for an investigation. At no point has the Countess uncovered anything that would indicate a significant chance that there was an underlying criminal act but the clinicians still feel it is unexplained." Just pausing there, that is reference to the fact the clinicians had already spoken to the police prior to this meeting?
CHAMBERS: That is correct.
BLACKWELL: "Darren Martland replied that Cheshire Constabulary have similar concerns. If an objective third party view is taken, we have clinicians who are experts in their field and other reviews conducted and at this stage there is no direct allegation of any wrongdoing on the part of an individual or significant negligence, which could potentially constitute to a criminal offence. There is nothing to suggest that this is the case. Darren Martland will be guided by the Countess on where we go next. The Constabulary can do nothing if the Countess are satisfied with everything that has been done so far." Then a little further down: "Ian Harvey agreed with Darren Martland regarding the Families, most of which have come to terms with what has happened to their babies." Then further down still: "Darren Martland questioned if there is any scope for an external review, if there is a body that would sit independently and would take all of the reviews to look at from a third party perspective with the requisite clinical expertise. Dependent on these findings, it would dictate whether it is an issue for the hospital in terms of management, potential issues for learning points or potential evidence of a criminal
wrongdoing." So was the Assistant Chief Constable at that point suggesting that there may still be other organisations that might have a further look at matters at the Countess prior to the police investigating?
CHAMBERS: That that is my understanding.
BLACKWELL: The bottom of the next page, please, page 5: "Ian Harvey noted that the clinicians had their own separate session with the RCPCH Reviewers and in that they raised concerns about the individual. This was not in the RCPCH Terms of Reference as they considered this was an HR issue but the RCPCH did produce separate observations outside of the report in which they called out the paediatricians' concern. RCPCH stated that their allegations were based on nothing more than coincidence and ['gut feeling', I think that should be]. There was nothing definitive."
CHAMBERS: Correct.
BLACKWELL: The top of the next page, please. Now, you have been taken to the second paragraph down, where you state that it was certainly not criminal, and I would like to ask you, please, to go a little further down the page: "DM [Darren Martland] was clear to Tony Chambers that all Cheshire Constabulary have done to date is look
through reviews and reports they have not investigated... If there is no direct allegation or suggestion from the Countess of any potential criminal wrongdoing then Darren Martland would be comfortable to put it into writing based on meetings and documentation so far in response to Tony Chambers' letter that Cheshire Constabulary will not conduct a criminal investigation at this stage, with the caveat 'if further information comes to light'", and he asks you what your intentions are. "[The Countess] have not spoken to Dr Jayaram yet. It would be dependent upon the outcome of this meeting. It cannot be left as they have made the same allegation again but with more focus than previous. A conversation would be required around the discussions the Countess and Cheshire Constabulary have had in light of their email. There is a need to discuss what the Countess can do to reach an end point which they are comfortable with." Then you have been taken to the next paragraph. Following that: "Tony Chambers added that the Consultants have made their points and they have been seen and not judged as sufficient to warrant a police-led investigation, looking at how close it constitutes as a criminal act.
There was a need to explore to ensure the Countess had not missed anything but there is also a need to move on." Darren Martland at the bottom replied that: "If the Countess' position is that they are satisfied of where they are and there was nothing, anything that would cause to believe potentially criminal offences had been committed, which would warrant a police investigation, then that needs to be placed in writing." The following page, please. Four paragraphs down: "Tony Chambers stated the Countess will have a conversation with the clinicians following this meeting to agree these points and state that, based on what has been provided as a clinical team and what is known from the reviews, it doesn't appear that there are grounds for a criminal investigation." But then, at the bottom the page, you say this: "Tony Chambers clarified whether it's possible to have a conversation with the clinicians without involving the Families as the clinicians would value the conversation with a police officer. Darren Martland wished to make clear that Cheshire Constabulary are not opening up an investigation. This is about dissecting an email submitted by Dr Jayaram and confirming that there is nothing else that ought to be aware of that is not in the email." Then the following page, please. Towards the bottom: "Tony Chambers agreed that, as Dr Jayaram had bypassed the Countess of Chester Executive Team, it is appropriate that he has the opportunity to speak and when the decision is made to either proceed or not to a full inquiry, it will be based on the whole picture and it will be a stronger position for the Countess." At this point, you say you would feel more comfortable that the clinicians should be able to move on. Now, if we turn, finally, to the summary of the meeting, which appears at page 10, Darren Martland summarised the position that there had been a number of reviews, et cetera. Then the paragraph below. "As it stands, the reports don't indicate anything that would necessitate or warrant a criminal investigation. However, Cheshire Constabulary have received a report from the Consultant, Dr Jayaram, and it has been agreed it is appropriate he is met by a police officer, which will be facilitated on 15 May. Depending on the outcome of the meeting, if nothing new is raised and everything he states is contained within
the document he sent, then a decision will be made at the conclusion of that meeting whether an investigation should take place or, whether comfortable, that nothing significant has been raised outside of the letter that could potentially give cause for concern that a criminal offence had been committed." Thank you. Now, Mr Chambers, when you left that meeting, did you believe, firstly, that Dr Jayaram would be spoken to by the police and given an opportunity once more to air his concerns?
CHAMBERS: Yes, I believed that was going to happen and, in effect, did happen.
BLACKWELL: Did you believe that, depending on what came out of that meeting, there would then be a decision by Cheshire Constabulary as to whether or not to investigate the matter?
CHAMBERS: That's correct.
BLACKWELL: Thank you.
CHAMBERS: I believed that.
MS BLACKWELL: Thank you very much. My Lady, those are my questions.
LADY JUSTICE THIRLWALL: Thank you very much indeed, Ms Blackwell. Do you have any questions, Mr De La Poer?
MR DE LA POER: My Lady, there are two short matters, if I may, just to pick up on.
LADY JUSTICE THIRLWALL: Yes, of course. Further questions by MR DE LA POER
MR DE LA POER: Perhaps we can keep that document up, as we were just being asked about it. It relates to a passage your attention was drawn to and the word "bypass", Mr Chambers. INQ0003076. If we go to page 7, the part we have just looked at was on page 8. We can see five paragraphs up from the bottom, beginning "NW", that is Mr Wenham, Detective Chief Superintendent Wenham, as he was: "... added an observation that Dr Jayaram had sent the email directly to the police and bypassed the Countess of Chester Executive Team. Cheshire Constabulary are duty bound to respond to Dr Jayaram on behalf of the clinical team. It might be appropriate to have a conversation with Dr Jayaram around the content of the letter and gain a feeling of anything else that he may wish to disclose, which would add some value to the content. So the word "bypassed" appears earlier in the meeting and appears to have been Detective Chief Superintendent saying that there was an obligation on the police to go back to Dr Jayaram?
CHAMBERS: I think this is a very helpful comment from Mr Wenham. I remember at the meeting this comment being made and it helped to give clarity to the discussions that had been going on between myself and Mr Martland.
DE LA POER: So when we see on page 8 you effectively reflecting the Detective Chief Superintendent's language, the passage that we looked at just a moment ago, that you are agreeing with him -- in other words you are acknowledging that he said there is a duty to go back, you are saying, "Yes, go back and talk to Dr Jayaram"?
CHAMBERS: I think I was agreeing with that proposition and I -- as I said before, I found it very helpful because the -- my feeling was, was that we were being asked to offer an opinion on an email that had been sent directly to the police that we had only glanced at, at this meeting. It felt that it would not be appropriate for us to offer that opinion, and so Mr Wenham's intervention was incredibly helpful.
DE LA POER: Thank you very much indeed. We can take that document down. The second matter is just an email you were taken to just a few moments ago, that Dr Subhedar sent. That email was put alongside the meeting notes. I would just like to bring that email up again. We will find that at INQ0103152. What I would like us just to focus upon is two different words, one is "unexpected", the other is "unascertained", all right? So what we can see is that Dr Subhedar is saying that: "Unexpected collapses without a clear cause is well recognised in neonatal units and we have had a couple of cases recently. However, I cannot recall discussing any specific cases at network meetings where a baby has died suddenly and unexpectedly without a cause of death having been identified." So that's "unascertained", without a cause of death unidentified. So what he's saying is he has experience of babies collapsing unexpectedly but what he doesn't have experience of, although he caveats it that their data is not well collated, but he is saying "I have not had experience of a sudden and unexpected collapse where the cause of death is unascertained"; that is what he is saying, do you agree?
CHAMBERS: That is what the email says.
DE LA POER: That is what the email says. Of course, we know that one of the themes of the Thematic Review was that the babies had suddenly and unexpectedly collapsed, so that was part of the cohort that there was concern about; do you agree? That's what the Thematic Review
said?
CHAMBERS: Can you just repeat the question?
DE LA POER: Yes, of course.
CHAMBERS: Yes.
DE LA POER: We know that the cohort of babies that the doctors were worried about had within them a group of babies who had suddenly and unexpectedly collapsed.
CHAMBERS: I think that's correct, yes.
DE LA POER: So we keep the distinction in our mind there is the unexpected collapse, there is the unascertained cause of death. So if we can go back to that meeting, please, INQ0003237, and we look at page 2. So here we have Mr Harvey's presentation, and this was the passage --
CHAMBERS: Apologies, can you just remind me what meeting this is?
DE LA POER: If we go back up, it's the presentation to the board, on the 10th.
CHAMBERS: Thank you, yes.
DE LA POER: Quite right to ask me. So the email came in on 1 December to Mr Harvey, this is Mr Harvey responding but you have been taken to both of these, and I just want to lay it on the side. The passage that we were all focused on is: "In one of the cases the cause of death is
unascertained, which is not uncommon." So in one of the cases of this cohort that has unexpected collapses, the cause of death is unascertained, which is not uncommon. Now, I would just like to your help on this, Mr Chambers. What Dr Subhedar had been saying is he had not come across a case where, in an unexpected collapse, there was unascertained cause of death; that is what he was saying. So, in other words, it is sufficiently uncommon that for a Consultant neonatologist in a Level 3 centre, he didn't have any experience of it, so he, by implication, is saying it's extremely uncommon; do you agree that is what Dr Subhedar was saying?
CHAMBERS: I -- well, the communications with Dr Subhedar were between Ian Harvey and Dr Subhedar. The note here is a reference to the presentation from Ian Harvey. My -- it's difficult for me to mistake a specific comment on this and I -- I think the best person that can help the Inquiry would be Mr Harvey.
DE LA POER: I am sure that's right but you had been invited and had made a comment earlier upon it, so I just use this opportunity, if I may.
CHAMBERS: I think that's fair.
DE LA POER: Do you agree that a natural reading of what
Dr Subhedar had said in that email was that an unexpected collapse in circumstances where the cause of death was unascertained was extremely unusual because he hadn't come across it; do you agree that that's what he was saying?
CHAMBERS: I -- I am not clear. I don't know of the nature of the conversation that went on and feel -- I feel inadequately aware of the detail to be answer to be able to answer that question. The point that we -- you are referring to was a conversation that you and I had yesterday, was around the use of the word "uncommon", and where we had got that -- if you like, where we had got the assurance for that. I said that I think it had come to from Nim Subhedar, and I had assumed that it would have been Ian's interpretation of that, and I suggest you take that up with him.
DE LA POER: Today, you were taken to that email and appeared comfortable commenting upon it. I am just trying to just -- if it is right that the natural and ordinary meaning of what Dr Subhedar was saying is that he had never come across a case where there was an unexpected collapse and the cause of death was unascertained, if that's right -- and I accept from you at face value that you don't feel qualified to interpret his email in that way -- but if that is what he's saying, then the assertion that is being made here that in one of the cases the cause of death is unascertained, which is not uncommon, that assertion would be the very opposite of what Dr Subhedar had said, wouldn't it?
CHAMBERS: Possibly.
DE LA POER: Just as a matter of logic?
CHAMBERS: Possibly, yes.
DE LA POER: There wouldn't be a possibly about it; it would be inconsistent?
CHAMBERS: I -- I can't give you a definitive answer, I'm sorry.
DE LA POER: Well, thank you for answering my questions, there. My Lady I have nothing more for Mr Chambers.
LADY JUSTICE THIRLWALL: Thank you. Questions from LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: I have got one or two questions for you, Mr Chambers. We can either take a break and do them after that or we can continue.
CHAMBERS: I am happy to continue, if that's okay.
LADY JUSTICE THIRLWALL: I thought you would perhaps prefer that. Thank you. Going back to the beginning of your evidence, we went through your CV and you tell us that you, I think,
became a nurse in 1985.
CHAMBERS: A student nurse in 1985.
LADY JUSTICE THIRLWALL: A student nurse, and then at some point you took a degree, was that -- but that wasn't a nursing degree?
CHAMBERS: No, it wasn't.
LADY JUSTICE THIRLWALL: What was that in?
CHAMBERS: It was essentially an English degree. It was a media and communications degree.
LADY JUSTICE THIRLWALL: Media and communications, thank you. Then for how long did you work as a nurse?
CHAMBERS: So I commenced training in '85, qualified in 1988 and went into full time education in 1991. So I would have been -- worked as a Registered Nurse for about three years.
LADY JUSTICE THIRLWALL: What areas did you work in, just briefly?
CHAMBERS: It was adult critical care.
LADY JUSTICE THIRLWALL: Adult critical care. Thank you. Now, a few minutes ago, it may have been more than a few minutes, but anyway this morning, you were being taken to notes of an interview of a meeting on 29 June, and we have been through it several times and I just wanted to ask you about something which I think you told
us for the first time this morning. You said that you had been in the unit yourself --
CHAMBERS: Yes.
LADY JUSTICE THIRLWALL: -- which I think you told us yesterday --
CHAMBERS: Yes.
LADY JUSTICE THIRLWALL: -- and my memory of it, and it may be wrong, is that you had been there in sort of December 2015?
CHAMBERS: It, it would have been -- it was definitely December 2015. I can't be clear what time in December.
LADY JUSTICE THIRLWALL: No, I am not asking you that. I just wanted to make sure that I had remembered that correctly. Then what you said today, which I don't think you said yesterday, I think you said it felt very busy yesterday.
CHAMBERS: Yes.
LADY JUSTICE THIRLWALL: But today you said that you felt the unit was chaotic when you visited it; is that right?
CHAMBERS: I -- I think that, that wasn't necessarily my interpretation of it but I remember that there had been an email sent to me by Dr ZA that led, that led to my visit.
LADY JUSTICE THIRLWALL: Yes.
CHAMBERS: I think she had used the word "chaotic".
LADY JUSTICE THIRLWALL: I see. Well, that's a different matter because I was going to ask you did you take that up with someone, but she raised it with you?
CHAMBERS: Yes.
LADY JUSTICE THIRLWALL: What did you do? Firstly, did you find it chaotic when you got there or did you just find it busy?
CHAMBERS: It, it's -- it didn't strike me as being chaotic.
LADY JUSTICE THIRLWALL: No.
CHAMBERS: But the units or any ward and department can be very busy at different times of day or different days of week, just -- just by the natural variation that there can be. So I have no doubt in my mind that Dr ZA at the time was reaching out to say, "Look, this is busy, it's chaotic, staff are feeling very stressed". I went to visit. We walked, we talked, we listened, we probably had a cup of tea. The fact that we had a cup of tea suggests that it perhaps wasn't chaotic. But the outcome of that meeting, that walkabout, was I think two things really: (1) I pushed again on the Consultant recruitment and just to see where that was up to --
LADY JUSTICE THIRLWALL: Yes.
CHAMBERS: -- and also pushed Alison Kelly on getting to -- getting to look at the nurse staffing ratios and to see if we had the skill mixes right and can we improve the nursing skill mixes. So there was different definitive actions taken.
LADY JUSTICE THIRLWALL: Yes, thank you. Then going back to your evidence at the beginning of your evidence yesterday, you were telling us about the meeting of 29 June, and I think you said this was the first you had heard about the increase --
CHAMBERS: Yes.
LADY JUSTICE THIRLWALL: -- in mortality but I think, having heard your evidence, and then again something you said this morning, you say this was the first time it had formally been brought to your attention?
CHAMBERS: And the -- the fact that we had a meeting on 29 June at 5.00, with all of the people who were in attendance, inevitably meant that I had been brought -- this had been brought to my attention during the course of that day. So it, you know, there, there had been an unexplained increase and the association with a member of staff more, but -- so it was the first time
that I had the opportunity to hear all of the concerns.
LADY JUSTICE THIRLWALL: Yes. No, I understand that. A phrase that you have used several times when giving your evidence yesterday and I think also today is "what I was hearing", and you say that of other people because sometimes the way of describing what someone says is to say "what they said was", but you are always very careful to say "what I was hearing". I assume that means, but does it -- I mean, you have got the degree in media and communications -- is that acknowledging that when you are listening to someone, you are applying various filters, consciously or unconsciously --
CHAMBERS: I think that's correct.
LADY JUSTICE THIRLWALL: -- is that what you mean?
CHAMBERS: There will always be those unconscious biases, there will be -- and that is true for everybody.
LADY JUSTICE THIRLWALL: No, I understand that I just wanted to be clear that that is what you meant by it.
CHAMBERS: Yes.
LADY JUSTICE THIRLWALL: You also told us, when you were being asked questions, I think, by Mr De La Poer, that you were getting all this detailed information from the doctors, and I am not asking you to go back through
that. But you also said that you had very strong views that had been expressed by nursing colleagues. Now, I just would like to know, please, at what point you had been given all that information. It was obviously before this meeting, it must have been?
CHAMBERS: It must have been.
LADY JUSTICE THIRLWALL: Yes.
CHAMBERS: But it was probably that day. I'm --
LADY JUSTICE THIRLWALL: So who do you think -- you may be able to remember who you spoke to?
CHAMBERS: It can only be from Alison Kelly is my -- is my view. It certainly wouldn't have been from, if you like, further down the nursing ranks. I would probably just be -- Alison would have been making me aware, or Ian because he had also been at the meeting where Eirian Powell had offered her. So it could have been from either Ian Harvey or Alison, and they would have described to me, on the one hand, nurse association on duty, more times than another, but also well regarded, trained in specialty and all the points that Eirian Powell had previously made. So I think I must have been aware of that.
LADY JUSTICE THIRLWALL: Would it be fair to assume that that would have affected the way you heard what the Consultants were saying.
CHAMBERS: Yes, I -- it would have -- again, it would have been context, it would have been -- I suppose what you hear is through the filters, yes. So, yes, I think that's fair. And it -- and I think for me the -- the actions that we took --
LADY JUSTICE THIRLWALL: Don't worry about that, at the moment, I just really wanted to know how you received that information.
CHAMBERS: So therefore I think inevitably, so, yes.
LADY JUSTICE THIRLWALL: I am not sort of cutting you off but you have told us what the actions were --
CHAMBERS: Yes, yes.
LADY JUSTICE THIRLWALL: -- and I can see now, from what you have just said as to perhaps some of the thinking that would have occurred. Yes. Thank you. One of the things that I have raised before, we heard evidence from Karen Rees about her response when she heard that Dr Jayaram had expressed concerns about a nurse deliberately harming babies and she went to speak to Dr Brearey, and the fact that there was a very clear request from Brearey to take Lucy Letby off the ward. Did you know about that?
CHAMBERS: No, no.
LADY JUSTICE THIRLWALL: When did you first learn about that?
CHAMBERS: That discussion?
LADY JUSTICE THIRLWALL: Just roughly.
CHAMBERS: Yes, I'm not sure I ever did hear about that. It may be that I only really became absolutely aware of it was through the trial, the criminal trial, where I think that discussion had been played out.
LADY JUSTICE THIRLWALL: So Alison Kelly didn't tell you about it?
CHAMBERS: I don't have a specific collection of it.
LADY JUSTICE THIRLWALL: You weren't aware of it at the meeting on 29 June?
CHAMBERS: No.
LADY JUSTICE THIRLWALL: All right. On a separate topic, and again we have touched on it today, you have been asked questions about the way you approach people, and you know your demeanour, and I think you describe yourself as direct, and you don't say this, but plain speaking. Do you acknowledge that some people might experience your style as being somewhat intimidating?
CHAMBERS: I -- I described my approach to one meeting as being direct. My style, more generally, is much more collaborative than that, much more open with that. I -- from my own experience as a Chief Exec, it's better to not offer your opinion because that quite often closes down discussion. So when I described my -- my approach,
it was to that meeting.
LADY JUSTICE THIRLWALL: So, generally, you weren't direct?
CHAMBERS: No, I was much more collaborative than that, much more of a collective leadership style, seeking to listen, seeking to try to understand and always recognising people's contributions.
LADY JUSTICE THIRLWALL: Yes. So I mean, this is really just so I understand: do you think there are ever circumstances when somebody in a meeting with you may find you intimidating?
CHAMBERS: It's no doubt, and from what I what we have heard in evidence around the meeting at the end of June, on the 29th, that my very probably uncharacteristically direct style probably was more impactful because it was very different to what people would have been used to.
LADY JUSTICE THIRLWALL: So are you agreeing me that that might have felt intimidating, or not?
CHAMBERS: Possibly, possibly. I -- it can be intimidating inevitably because it's the Chief Executive who -- who's having that conversation.
LADY JUSTICE THIRLWALL: Yes, yes understood. Can I just ask about how busy everybody was, not the clinicians or the wards but you and the other
Executives. I mean, we have heard from Ms Kelly that she was so busy in back-to-back meetings and that she didn't have time to look at all her emails, for example?
CHAMBERS: I --
LADY JUSTICE THIRLWALL: What was it like for you?
CHAMBERS: Yes. No, it was -- it was similar. If we think about -- this was the pre-Covid world --
LADY JUSTICE THIRLWALL: Yes.
CHAMBERS: -- where everything was pretty much face to face, so quite often things were very time inefficient and there was huge amounts of time being wasted in face-to-face meetings that could now be delivered on Teams, much more effectively and efficiently. Lots of time would be used by travelling to these meetings.
LADY JUSTICE THIRLWALL: So what sort of --
CHAMBERS: So people were very busy.
LADY JUSTICE THIRLWALL: So from your perspective --
CHAMBERS: Yes.
LADY JUSTICE THIRLWALL: -- did you feel that you were so busy you couldn't get everything done?
CHAMBERS: I -- on -- I think one of my reflections in my witness statement is that -- and it's one of those things that is so blindingly obvious in, in -- you know,
after the events, that you know we, we were probably trying to do a whole range of things that meant that, for the Executives, there was very much a culture of very long hours, I think there was a culture of reading emails early in the morning or late at night and the -- the operational reality of a hospital continues and the Countess of Chester was a very busy district general hospital, whose emergency workload was significant. So, yes, everybody was stretched.
LADY JUSTICE THIRLWALL: Everybody was stretched, understood. Just one last topic, if I may, and it's about the grievance process. I don't want to go back over it. We can all see what's written down. But there are a couple of points in Sir Duncan Nichol's statement, one point in Sir Duncan Nichol's statement, where he indicates that you had said to him that you weren't comfortable with -- something about the grievance wasn't quite right, or something like that?
CHAMBERS: Yes, I -- I remember this conversation with Sir Duncan and I don't remember the specific detail of it but it is kind of both of our reflections.
LADY JUSTICE THIRLWALL: Yes.
CHAMBERS: And the two of them really were that there could not have been anything more unhelpful at that time than a grievance investigation in the way that it was played out. It, it, it, it made a -- relationships that were -- already had the potential to be challenging becoming more so. The inquiry -- sorry, the grievance was not something -- I was aware that it was happening but not all the detail of it. Perhaps I should have been. But it wasn't for a Chief Executive to -- to stick their nose into these things.
LADY JUSTICE THIRLWALL: No, I understand that.
CHAMBERS: And what was more frustrating about the outcome of the grievance process was the -- the approach to mediation, and things of that sort. And I think Sue Hodkinson in her evidence suggests that -- that, on reflection, that should have been paused. So my reflections in the conversation with Sir Duncan was around that. I couldn't really offer any observation around the process itself.
LADY JUSTICE THIRLWALL: No, I am not asking you to, I just wondered what you thought wasn't right.
CHAMBERS: It was just -- I mean, as you can imagine, it just made a difficult situation even more difficult and it's a regret that, that it ever really was undertaken but I understand because of the -- it's an independent process that's available to members of staff,
I understand why it happened. It was just an absolute regret that it did.
LADY JUSTICE THIRLWALL: Yes, thank you. I'm sorry, my computer has just chosen this moment to switch off. Thank you, those are all the questions I have. Does anybody want to ask anything arising out of that? No, in that case. Thank you very much, Mr Chambers, you are free to go.
CHAMBERS: Thank you very much.
LADY JUSTICE THIRLWALL: We will rise now until 11.55.
(11.37 am)
(A short break)
(11.55 am)
LADY JUSTICE THIRLWALL: Ms Langdale?
MS LANGDALE: My Lady, may I call Mr Harvey.
MR IAN HARVEY (affirmed)
LADY JUSTICE THIRLWALL: Do sit down, Mr Harvey.
Questions by MS LANGDALE
MS LANGDALE: Mr Harvey, you have provided a statement to the Inquiry, dated 11 August 2024. Can you confirm the contents are true and accurate as far as you are concerned?
HARVEY: It is.
LANGDALE: Before I begin asking you questions, Mr Harvey, I understand you would like to say something?
HARVEY: I would, thank you. I am sorry for the hurt that has been caused to the parents and the Families of the babies. I extend that to the parents and the Families of the babies that were the subject of the reviews but didn't feature in the trial, and aren't part of this Inquiry. It was only ever my desire to have a safe hospital and to be able to tell the parents what had happened on the neonatal unit and, if I failed in those aims, I'm truly sorry. I am grateful for the opportunity to come to this Inquiry to explain my part in the Executive decision making and to assist in the recommendations going forwards. Thank you.
LANGDALE: Mr Harvey, you say "if I failed in those aims". Reflecting now, do you think you did fail in those aims to secure patient safety or baby safety?
HARVEY: I think the simple fact that there was an increase in mortality is an indication that we got things wrong. I think I've made clear in my statement that I failed in my communication to the Families, in the nature and the quality of the information that they were given.
LANGDALE: Did you fail to have Letby investigated earlier by the police and to be removed from the neonatal unit?
HARVEY: I am aware, from all the documentation, that in June/July 2016 I had expressed an opinion that we should approach the police and I sincerely regret that we didn't at that time. I -- I think looking at the processes that we went through, I can understand why we did what we did. But certainly, on reflection, I'm not comfortable seeing that and thinking that we didn't. I'm not convinced, based on the communications and the conversations we had with the police nearly a year later, that they would have necessarily acted at that point but I have to accept that there would have been the potential for oversight or advice with regard to the processes and the reviews we undertook, and the possibility that they could have stepped in sooner should something have been found.
LANGDALE: All right. Let's go to your statement. If we look at the beginning of your statement, Mr Harvey. You have got it with you, haven't you, as well?
HARVEY: I have.
LANGDALE: You tell us your qualifications, first of all. You attended Liverpool Medical School from 1976 and obtained a Bachelor of Medicine and Bachelor of Surgery degree in 1981. In 1994 you began your employment at the Countess of Chester Hospital as a Consultant orthopaedic and trauma surgeon, with a specialist interest in upper limb and hand surgery? You were always --
HARVEY: I'm sorry, could I just apologise. I am struggling to hear you.
LANGDALE: Sorry, I will move the microphone further.
HARVEY: Thank you.
LANGDALE: Is that better?
HARVEY: It is, thank you.
LANGDALE: You were always dealing with adult patients, I think?
HARVEY: Predominantly, not exclusively.
LANGDALE: You were appointed as Medical Director at the Countess in July 2012, initially undertaking the role part time and keeping some clinical sessions, and taking on the role as Medical Director full time in October 2013?
HARVEY: That's correct.
LANGDALE: So from October 2013 did you have no clinical duties?
HARVEY: No, I didn't.
LANGDALE: So your role was fully as the Medical
Director, and you tell us it encompassed a wide range of responsibilities. Would you like to summarise those for us, and how busy you were in the role?
HARVEY: Pardon I missed had?
LANGDALE: How busy you were in the role.
HARVEY: My main role as Medical Director was essentially to act as an adviser on medical matters to the board, to act as a conduit between the board and medical staff, to advise and support the implementation of clinical strategy. I was also overseer of medical recruitment and discipline. I had the additional role, as I believe most medical directors do, of responsible officer, which is a GMC role, responsible for overseeing appraisal and revalidation of Consultants and permanent medical staff. In addition, I was also the -- the Caldicott Guardian, so overseeing information governance, and the director of infection prevention and control. I was probably no more busy, no less busy than any of my colleagues and I was certainly, I would say, no busier than the vast majority of the clinicians in the hospital.
LANGDALE: You say you gave notice of your retirement around February 2018, six months before your intended retirement date. You haven't undertaken any
professional activity since you retired and you applied for voluntary erasure from the medical register in June 2020. At that time, your application was refused by the GMC: "... on the basis that there was an ongoing investigation into a complaint which had been made about me by four paediatricians of the Countess of Chester Hospital and it was considered [you were told] to be in the public interest to conclude that investigation." In May 2022, you were informed by the GMC that their investigation had concluded and no further action would be taken, and you reapplied for voluntary erasure on the same grounds, and that was granted in June 2022?
HARVEY: That's correct.
LANGDALE: You say, about governance and leadership at the hospital: "The board was at the head of the Trust governance structure and comprised of senior members of staff including Chief Executive, Director of Nursing and myself." Can you tell us, first of all, about your relationship with your fellow Executives and then with also Sir Duncan Nichol, as chair of the board?
HARVEY: In well, I -- difficult to describe. The relationship with my other board members,
I believe was -- was good. I think there was a very coherent and collaborative approach from the Executives. I think that we communicated well and on a regular basis and in general well, if not almost exclusively decisions were made collaboratively. I can't remember ever there having to be a vote on making a decision. I met with Sir Duncan Nichol on a fairly regular basis. I believe we had a good relationship. I was comfortable to -- to share everything with him. He had a high level of -- of gravitas and, obviously, given his background huge experience, which I found invaluable, and I would have to say that I had never experienced a better chair of a meeting.
LANGDALE: Did you know that Sir Duncan Nichol had a role in the NHS at the time of the Beverley Allitt case and he was responsible for circulating from the Clothier report various recommendations arising out of the Inquiry into Beverley Allitt; did you ever discuss with him the Beverley Allitt case or any of his experience at that time in the NHS?
HARVEY: No, I didn't and, to be honest, I wasn't aware of that.
LANGDALE: Is that because you never mentioned the case of Beverley Allitt to him, as he will have been aware of that?
HARVEY: I don't think I ever specifically mentioned that -- that case to him.
LANGDALE: Okay.
HARVEY: I am aware that there are notes of some meetings in which the name "Allitt" appears.
LANGDALE: We will go to the meetings but is that the first time you had heard the name Allitt in those meetings?
HARVEY: No, I -- I was aware of Beverley Allitt.
LANGDALE: You say at paragraph 22 of your statement that you: "... described the culture and atmosphere at the Trust as generally positive. Senior medical posts in most specialties were highly sought after. There was a feeling that for a medium-sized Trust it punched well above its weight and, despite what were at times severe pressures, there was a can-do attitude." Is that how you experienced it, generally?
HARVEY: I would stand by that statement, yes.
LANGDALE: You say: "From 2016 there was a change in the atmosphere between the Executives and the paediatric medical staff due to the issues on the NNU unit. These relationships became strained, although I do not believe that it carried over into the rest of the Trust or affected the
management or governance of the hospital." Do you say that is the position?
HARVEY: Yes.
LANGDALE: So, as far as you were aware, before the issues raised on the neonatal unit, you didn't think there was any issue between doctors and nurses generally as groups within the hospital and not on the neonatal unit, before the issues around Letby arose?
HARVEY: There was nothing that had come to me, no.
LANGDALE: You say that Stephen Cross and you had a close working relationship and you valued his opinion. In what way did you value his opinion, about what matters?
HARVEY: I -- I think it was primarily involved with -- with legal matters. He was a huge support in helping with doctors who were going through legal cases, those who were subject to a negligence claim, for example. My experience has been that he and his team were very supportive of teams that were involved in Inquests.
LANGDALE: In what way did you support teams or doctors who were involved in Inquests?
HARVEY: I believe that he and/or his team would meet with doctors beforehand, they would review what was going to be involved in the Inquest, and they would support the attendees at an Inquest, probably not often, it would be Stephen Cross but one of his team would go
with the clinical staff, and that could be medical or nursing to -- to the Inquest to support them.
LANGDALE: Why wouldn't it often be Stephen Cross?
HARVEY: I would imagine that would be because of his, his role.
LANGDALE: So he was a senior person, he would only come to the serious ones or the ones the hospital was concerned about, given his seniority?
HARVEY: I'm really not in a position to comment, I haven't got the experience and the knowledge of that.
LANGDALE: Did you get involved at any time in discussing Inquests or statements for Inquests -- we are going to come to references to that but, from memory now, were you involved in discussions about many Inquests in the hospital?
HARVEY: No, I can only think of one or two that I was involved in and the one that I -- I attended at the Coroner's Inquest was -- was to do with an adult.
LANGDALE: To do with?
HARVEY: An adult.
LANGDALE: An adult. If somebody spoke to you about an Inquest in relation to a child or a baby, would that be typical or unusual?
HARVEY: That would be unusual.
LANGDALE: Why?
HARVEY: I suppose partly because of their -- just the numbers in relation -- in comparison to the numbers of adult deaths that we would have in the Countess of Chester Hospital. And also because it was unusual for there to be circumstances around an Inquest that would require me to be informed.
LANGDALE: As a Medical Director?
HARVEY: Yes.
LANGDALE: Can we look then at some of the policies. You refer to them in your statement, Mr Harvey but we have them on the screen, other people can see them as well. So we are going to look, first, please, at the "Risk Management Strategy and Operational Policy" that applied, which is INQ0014962. It begins at page 1 but if we can look at page 2. So this is the "Risk Management Strategy and Operational Policy", Mr Harvey. You will have seen it before I am sure. If we go to page 2, we see the introduction and the commitment to delivering high levels of safe and effective patient care. Underneath "Aims", the last bullet point: "The Trust maintains a coordinated approach in managing risks through a systematic process of identification, assessment, control and management of risk." If we go to page, 9 we see at the top: "The Medical Director supports the implementation of the risk management strategy and has the responsibility for all medical staff." Two questions there, if I may: in what way did you support the implementation of the risk management strategy; and what was your responsibility for medical staff? What did that mean in practice, those two things?
HARVEY: Supporting the implementation I regard as contributing to the risk management meetings. I think we had an executive risk committee that met to review organisational risk. Also, in the lesser committee meetings, for example the quality, safety and patient experience, where we considered risk, to contribute to oversight of the risks that the divisions were reporting. Responsibility for all medical staff, I -- I read as supporting and ensuring that medical staff were also contributing to this concept of risk management.
LANGDALE: If we go to page 14, please. We see the risk-scoring matrix. In terms of risk, Mr Harvey, the risk of babies being murdered, in terms of severity impacts, that would rank presumably as category catastrophic, would it, as number 5?
HARVEY: Yes.
LANGDALE: So how effective do you think the risk management system was at the hospital, at the time, for identifying the risk of babies being murdered?
HARVEY: I -- I think that the answer is probably not -- well, the answer is not, and I think the issue in terms of assessing risk with this sort of tool is that it relates to the common things. I don't think -- and there are probably other extreme examples -- and they probably don't come any more extreme than the situation we are faced with, that this just isn't an efficient tool for ...
LANGDALE: As soon as the doctors raised suspicion, mere suspicion, and concern that a nurse was deliberately harming babies, there was a risk, wasn't there, of a nurse murdering and harming babies? Now, whether that gets scored or how it gets scored, I am not going to ask you about that. We have heard some evidence about decision trees and all this process involves. But standing back, as someone with responsibility for risk, as soon as that suspicion was raised, and you knew the impact would be catastrophic were that risk to prove that it was fulfilled, did you never think to go outside of the scoring system, and rate this as a catastrophic risk that you needed to
address?
HARVEY: All I can say is that, when this was first raised, it was raised as there was an association of one member of staff. It was never raised as a -- something had been seen, something had been done. It was raised as "There is an increase in the number of deaths but we don't understand why".
LANGDALE: Murderers aren't always caught red handed, are they, Mr Harvey?
HARVEY: Pardon, sorry?
LANGDALE: Murderers aren't always caught red handed, are they? When you say there was nothing concrete, we see it later, or to substantiate concerns, we are looking at risk here, aren't we? You knew there was a risk and are you saying, because it wasn't concrete, anything that had been seen, you didn't classify it as such a risk?
HARVEY: No, I am saying that, in the way it was phrased, I -- I don't think anything of us perceived it as that sort of risk that would come to catastrophic.
LANGDALE: Let's see how it was placed on the Risk Register at INQ0004657, please. This is an entry made, 11 July 2016. To make clear for those who may not know the chronology after O and P had died, it appears, insofar as the Inquiry can see, for the first and only time on the Risk Register, and that's how it's
expressed: "Potential damage to reputation of neonatal service and wider Trust due to apparent increased mortality within the neonatal unit." Karen Townsend is listed as the handler, I think that means the person who puts it on there, and in her evidence she said Ms Kelly and Ms Hodkinson had scripted this for her; Ms Kelly said she had no recollection of this. So there we are. That's the evidence we have heard so far. What do you say about that description, following the deaths of O and P, of the risk which is ranked as high?
HARVEY: I believe that is a very -- and I can't avoid using a word that I believe Mr Chambers used -- very clumsy description of the risk.
LANGDALE: Well, what's the potential damage to reputation, that's the first thing that appears: what is that?
HARVEY: I -- I think the problem here is the use of the word "reputation", and the implication that reputation is some standalone quality. And I think this is something that has been referenced on a number of occasions. In my own mind, for a hospital, reputation can never be standalone. Reputation is entirely reliant on safety and the quality of care and, in my own mind, if I see reference to reputation, I always think of those as underpinning it.
LANGDALE: Did you see this Risk Register entry at the time?
HARVEY: I don't recall seeing it, no.
LANGDALE: Do you know who wrote it?
HARVEY: I don't, no.
LANGDALE: Why does it use the word "apparent" increased mortality; there was no question over the fact that there had been increased mortality, was there?
HARVEY: I think "apparent" is used because, whilst there was an increased number of deaths, the "apparent", I think, is a way of capturing the fact that it might not be statistically significant but, by the same token, that wasn't a basis for deciding on whether to -- to review or not because the increase that we had was noticeable and entirely unacceptable, and it wasn't subject to a statistical assessment to see whether it sort of passed a level where we should be concerned, the number itself was sufficient.
LANGDALE: Let's not worry about statistics, Mr Harvey. The numbers were very small, weren't they, if you are talking about statistics?
HARVEY: Yes.
LANGDALE: So let's talk about the situation on the ground, which was Sudden and Unexpected Deaths of infants in the neonatal unit. The number of Sudden and Unexpected Deaths had definitely increased and you knew that as a hospital and the person entering this or drafting that, if it was anyone connected at all to the neonatal unit and what was going on, would have known that too; do you agree?
HARVEY: I'm sorry, I am struggling to hear still.
LANGDALE: You would expect the person writing this, if they knew anything about the neonatal unit, to know that the Sudden and Unexpected Deaths had increased -- not "apparently", but they had increased?
HARVEY: Yes.
LANGDALE: So there is no justification for the word "apparent", is there?
HARVEY: Again, it's a -- I think it is -- it's a word that has been used and perhaps shouldn't have been.
LANGDALE: So you agree, no justification, a simple yes will do: you agree?
HARVEY: I would need to understand in detail why "apparent" had been put in, yes.
LANGDALE: Well, you know the facts --
HARVEY: Yes.
LANGDALE: -- you knew them at the time you were there
and you have looked at all of the documents in preparation for your statement, so you know the facts. So do you agree there was an increase, not simply in mortality but in Sudden and Unexpected Deaths, within the neonatal unit at the time this was entered on 11 July 2016?
HARVEY: I would say that I was aware of an increased number of deaths, I'm not sure that I could say for sure that the sudden and unexpected.
LANGDALE: We will go to that later then. But nowhere here is the risk identified as a risk to babies on the unit. That's the real risk, isn't it: the safety of babies on the neonatal unit?
HARVEY: It is. But, as I have already said, my own regard, with regards to the use of "reputation" is that it is underpinned by safety and the quality of care.
LANGDALE: Or is it that it's of more concern to those entering the information on the register than the safety of the babies: reputation comes first?
HARVEY: I would hope that was not the case.
LANGDALE: That can come down, please, and if we can have INQ0014165, page 3. This is the safeguarding policy, Mr Harvey, that was in place. We see at the beginning an introduction from your colleague, Ms Kelly, reminding everybody what Working
Together establishes, in the first paragraph: "Every adult has a responsibility to protect children and, as employees of the Trust, we are duty bound always to act in the best interests of a child about whom we may have concerns." Were you well versed in the safeguarding policy and the safeguarding culture within the hospital, or not?
HARVEY: I was aware of the policy, I had read the policy. I, as part of the mandatory training that we were all required to complete, had completed the safeguarding element. I would have to admit that I'm not sure that I could -- could say that I was well versed and I -- as I think we all did with our individual roles -- deferred to a degree to Mrs Kelly as the lead.
LANGDALE: Did Mrs Kelly ever have a conversation with you about the safeguarding process or policies, or what needed to be done when concerns were raised about a member of staff?
HARVEY: Not that I recall.
LANGDALE: In your own working at the Trust, and certainly through the period we are examining, did you regard neonates as more vulnerable than other patients in any way?
HARVEY: I regarded any patient who didn't have capacity as more vulnerable.
LANGDALE: So you would treat adult patients who were vulnerable in the same vein as you would neonates who are vulnerable?
HARVEY: I would hope so, yes.
LANGDALE: Do you think that where there are child protection requirements within the hospital, that it was important to remind yourself that you were dealing with children who are afforded greater protection with safeguarding policies, aren't they?
HARVEY: Yes.
LANGDALE: Yet at no time do you or Mrs Kelly appear to have stood back and say, "These are tiny infants and we need to protect them first and foremost"?
HARVEY: No. But, by the same token, nor did any of the other staff who had particular roles with regard to safeguarding approach us with their concerns or approach me with their concerns.
LANGDALE: Would you have known who to go and speak with; did you know Dr Mittal?
HARVEY: I did, yes.
LANGDALE: Did you ever think to touch base with him and talk about it?
HARVEY: I didn't.
LANGDALE: Do you know if he was even aware of the
concerns that babies were at risk, as far as the Consultants were concerned, from a member of staff?
HARVEY: I'm sorry: could you repeat that?
LANGDALE: Were you even aware whether Dr Mittal knew that the Consultants were saying babies were at risk from a member of staff?
HARVEY: No, I wasn't.
LANGDALE: Can we go to page 30, please, of the policy. In the bottom paragraph: "All concerns raised by staff about patient care will be dealt with seriously, promptly and be subject to a thorough and impartial investigation where necessary. Managers have a particular responsibility to protect patients and to handle concerns about their care in a way that will encourage the voicing of genuine misgivings, while at the same time protecting staff against unfounded allegations." First of all, in all of the time you dealt with the events we are concerned with, did you ever doubt that the Consultants had genuine misgivings about the nurse?
HARVEY: I never doubted that Dr Brearey, in particular, had concerns. Those concerns were, at the outset, not fully voiced and were difficult to follow on occasion. But at no point did I doubt that the concern was real as, as he perceived it.
LANGDALE: So you found it all difficult to follow, and we'll come to that later, what was happening. But you never doubted that the Consultants were worried and concerned?
HARVEY: I always accepted that Dr Brearey had a level of concern about that association.
LANGDALE: The Inquiry has heard from a number of doctors and people who were Registrars at the time, who also had concerns and anxieties about coming to work. Have you listened to much of the evidence?
HARVEY: I have, yes.
LANGDALE: Did you hear Dr Lambie's evidence?
HARVEY: I didn't but I have been made aware of it.
LANGDALE: Right. So it wasn't simply Dr Brearey who was concerned. At the time, did you speak to any other doctors, apart from the paediatricians we are going to go to, who were in meetings and the like, did you ever take a walk onto the neonatal unit or talk to younger doctors, to see what's going on?
HARVEY: I did do visits to the unit but I -- I don't recall specifically going to -- to talk to the junior doctors.
LANGDALE: So what did you visit it for?
HARVEY: I was going to say, sorry, I'm -- I am aware from the evidence that they had raised and expressed
concerns with their seniors. Those concerns that the trainees had were never passed on to me.
LANGDALE: How did you, as a manager, encourage the voicing of genuine misgivings; just standing back, what was your style? If you thought somebody was worried about something or concerned, did you think about how can you encourage them to speak fully?
HARVEY: I -- I tried to make myself approachable. Whilst I was busy, I didn't have, from the evidence of Mr Chambers and Mrs Kelly, the same back-to-back meetings that they had. I had maintained a separate office away from the other executives and I had made it clear that I had an open-door policy, so that if my door was open and there wasn't a meeting going on, then anyone was free as, as many did, be it with a professional or a personal issue, to come and speak with me.
LANGDALE: The second part of this policy refers to managers having a responsibility to protect staff against unfounded allegations -- unfounded allegations.
HARVEY: Yes.
LANGDALE: Were you ever concerned that there were unfounded allegations being made about a nurse?
HARVEY: I was very mindful at this time of Stepping Hill. But it was the alternative story from Stepping Hill which was the nurse who had been incarcerated inappropriately and incorrectly for six weeks and the effect that it had had on her life and career, and that was in -- in my mind.
LANGDALE: You are aware that, whilst she was on remand, she was not charged, was she, and somebody else was charged and convicted for the very serious crimes that occurred there.
HARVEY: That's --
LANGDALE: Tampering with saline bags: very difficult forensic investigations required, isn't it, to find who's done that and, indeed, the person was convicted, a different nurse?
HARVEY: It, it is but it's easier to know that someone has done it, if one has the evidence, for example, in the insulin -- knowing it was insulin.
LANGDALE: Is that why it's important that investigations are conducted with those with the resources and training to do it, like the police, who can, in the case you have described, drill into in fact who was responsible?
HARVEY: It's why it's important that an appropriate -- a review appropriate to the circumstances at the time is carried out, yes.
LANGDALE: If we go now, please, to the Speak Out Safely policy, that is INQ0003012, page 1. You see at the
bottom, paragraph 2: "The policy supports staff by ensuring their concerns are fully investigated and that there is someone independent outside of their team to speak to." If we go over the page, to page 3, underneath "Process to be followed": "When staff wish to express their concern about patient care, they should normally do so to their line manager." Alternatively, we see on page 6: "There are designated officers, any of whom can be used as the initial point of contact for disclosures made under this policy." We see you, Ms Hodkinson and Ms Kelly as designated officers. We see the roles and responsibilities below: "On being informed of the issue of concern, the designated officer will arrange an initial interview with the person making the disclosure to establish details. The person making the disclosure was reassured about their right to protection from possible reprisals or victimisation." If we go to the next page, page 7: "The person making the disclosure will be asked whether or not he/she wishes to make either a written or verbal statement. In either case, the designated
officer will write a summary of the interview which will be agreed by both parties." If we go over the page, to page 8. We see fifth paragraph down: "In certain cases, such as allegations of ill treatment of patients, exclusion from work on full pay may have to be considered immediately. Protection of patients is paramount in all cases." We see at the bottom: "If as a result of the investigation the Chief Executive decides there is a case to be answered by the person against who the disclosure has been made, the Trust disciplinary procedure will be invoked and, if there appears to be evidence of a criminal act [appears to be evidence], the Chief Executive will consult the police before invoking the disciplinary procedure." Mrs Appleton-Cairns told the Inquiry that the Speak Out Safely process was not followed in this case because Ms Hodkinson and you decided not to follow it. Clearly, the Consultants were raising concerns but this policy was not employed, namely one of you sitting down, writing what the concerns were, although they had already been set out arguably in the Thematic Review, but writing them down, then looking at them and seeing if there was a case to answer, if there was something
that the nurse needed to address or deal with, and then make a decision about the disciplinary policy or referral to the police. That process wasn't followed, as we have just gone through, was it?
HARVEY: It wasn't. When the increased mortality was first raised, I viewed it as a clinical issue. The nature of the conversations were more to explain that increased mortality. I don't recall a conversation with Mrs Hodkinson about whether it would constitute Speak Out Safely or not. But I would accept that we were late -- I know that, subsequently, I am documented as saying that it should fall under Speak Out Safely but that was late on in the process.
LANGDALE: Throughout the process, you seem set on what you have just said: trying to explain the increased mortality, weren't you; that was your focus throughout the process?
HARVEY: Yes.
LANGDALE: We will come to all the information but, whatever information was coming in at various stages from the paediatricians or anywhere else, you remained on that focus: trying to explain increased mortality with the various reviews you commissioned and the like?
HARVEY: Yes.
LANGDALE: That was a serious error of thinking, wasn't it, retrospectively? You just weren't getting the point of the Thematic Review and the Unexplained Deaths -- Sudden Unexplained -- reference to the Beverley Allitt case from Mr McCormack: you weren't seeing what was really being said, were you?
HARVEY: I felt at the time that we were following what was a logical progression of investigation, based on the situation that we had been presented with and, based on the information that we, we were being provided by both the reviewers and other experts and, at the time, it felt like the right and logical process to -- to follow.
LANGDALE: When you say what you were being told, the thinking and the picture was developing, wasn't it --
HARVEY: Yes.
LANGDALE: -- as, as matters went on: the thinking for Dr Brearey, who you respected --
HARVEY: Yes.
LANGDALE: -- trusted as a paediatrician?
HARVEY: I trusted him, yes.
LANGDALE: Dr Subhedar, the Inquiry has heard from him, from Liverpool Women's Hospital, he was involved in that Thematic Review, as an external party: respected him?
HARVEY: I -- I did it was for that reason that I subsequently contacted him for further information.
LANGDALE: But it seems as though what you thought was
logical to look at what might be the reasons for an increased mortality rate, generally, drove you in your actions and reviews that you commissioned, rather than just listening to them and what they were saying?
HARVEY: I believe that I -- I was listening. I accept what they were saying and their level of expertise and knowledge but, by the same token, they were not able to describe anything that took -- took it over a bar where I -- I -- I had that extra level of concern.
LANGDALE: Are you --
HARVEY: And, I mean, as I said right at the outset, having reflected at length, yes, I -- I regret that I didn't speak with the police in June/July 2016.
LANGDALE: Are you quite a rigid thinker, Mr Harvey: once you made a choice and you are on a track, you stay on it?
HARVEY: I don't think that I am. I -- I don't think that is the sort of thinking that would work, coming from a clinical background, and I certainly try to tried to hear what everyone was saying. Certainly, in those early meetings, I was cognisant of the -- the conversations that we were also having with the nursing staff and, and their views.
LANGDALE: Well, you were surrounded by qualified nurses, weren't you, in your exec group, there was Alison Kelly
and Tony Chambers, and you are the only doctor, aren't you, in that group?
HARVEY: I am the only one from a doctor background, yes. I mean, I'm not sure, given the length of their managerial careers, I would describe Tony Chambers and Lorraine Burnett as nurses.
LADY JUSTICE THIRLWALL: Alison Kelly.
HARVEY: Sorry?
LADY JUSTICE THIRLWALL: I think it was Alison Kelly you were asked about.
HARVEY: I think Alison Kelly, in her evidence, demonstrated that she kept close links and undertook clinical work and I would happily describe Alison Kelly as a nurse as well as the Director of Nursing.
MS LANGDALE: Do you think they may have relied on you, believing you to have a greater medical understanding of matters on the neonatal unit, than they did?
HARVEY: I don't think that's the case. But, as the Medical Director, then it is possible that I would have had some more weight. Having said that, I have no doubt that they are all intelligent people with a lot of experience of clinical and non-clinical matters, who would have a valid opinion, and certainly I didn't make any attempt to sway anyone's view of the situation.
LANGDALE: The last policy, if we can have a look at the Serious Incident Framework -- it is not a policy of yours, it is prepared by NHS England -- and if we look at INQ0009236, page 15. This is around how you assess whether an incident is a Serious Incident. You will understand: what is the significance -- perhaps you can explain: when you report a Serious Incident, who reviews it, where does it go? What was your understanding at the time, if something was logged as a Serious Incident or reported, who would get to see the information?
HARVEY: Initially, it would come in through the Risk Team. They, they would identify it. Typically it would have been an incident that is reported through the Datix incident reporting system. That would be assessed and escalated to the Serious Incident committee that Alison Kelly and I both sat on, and we would regularly meet with the Risk Team and a representative of Stephen Cross's team to discuss the Serious Untoward Incidents.
LANGDALE: How did they get escalated out of the hospital to NHS England or elsewhere for review?
HARVEY: My understanding is that it would go through the STEIS reporting system? So if you reported something through STEIS, it was scrutinised outside of the hospital, as well as within?
HARVEY: Yes.
LANGDALE: When we look at whether an incident is a Serious Incident, we see at 1.1, three paragraphs there, I don't need to take you through them all, but we see at the bottom, it's suggested: "Where it is not clear whether or not an incident fulfils the definition of a Serious Incident, providers and Commissioners must engage in open and honest discussions to agree the appropriate and proportionate response. It may be unclear initially whether any weaknesses in a system or process including acts or omissions in care, caused or contributed towards a serious outcome but the simplest and most defensible position is to discuss openly to investigate proportionately and to let the investigation decide." It makes the point the incident can always be downgraded. If we go to page 33, reporting a Serious Incident, it sets out, as you have said, that it can be reported on the NHS Serious Incident Management System and, if we see the bullet points: "You can report incidents which will give rise to significant media interest or be of suggests to other agencies, such as the police or other external agencies." You have said you were interested in looking at
increased mortality and you knew in 2015 there were three deaths in rapid succession of babies A, C and D -- we will come to it but the first ones that Dr Brearey draws together. You could have reported a cluster of deaths, just because they were deaths at that rate in that frequency, as a Serious Incident couldn't you, via the STEIS system, so that there were other eyes on the information?
HARVEY: I -- I can only say that when -- at that meeting, I wasn't present at that meeting when those three babies were discussed. So it's difficult to comment about what my thoughts would have been at the time. There is reference in the policy to working with the Commissioners, and Mrs Kelly and I met regularly with the -- I am unsure of their title now, but the -- the risk and governance lead for the Clinical Commissioning Group, the CCG, to whom we were not beholden but who had --
LANGDALE: Who were commissioning care?
HARVEY: -- were our Commissioners, yes. And we would meet regularly to discuss what had been through our serious incident panel. I think that we were subject to a significant level of scrutiny by the CCG and, certainly, I would have been
confident that, if there was a level of concern, then they would have raised that and -- and pushed us towards that. I -- I think it was also confused somewhat, despite what it says here, by the fact that I understand that the reporting rules changed in 2015 and, having formally been a requirement to routinely report any neonatal death on STEIS, that requirement was removed by a decision at a national level. I can't speak to that.
LANGDALE: Ruth Millward told the Inquiry it was a missed opportunity that that cluster of deaths wasn't reported to STEIS; do you agree with that?
HARVEY: I -- I think, potentially, it was a missed opportunity. I think the problem is the interpretation of a cluster and is the number itself per se sufficient to trigger? I think part of the problem was the level of assurance that was given by the reviews that Dr Brearey had carried out that actually didn't raise any specific clinical or associated concerns at that time. And, yes, potentially in doing that, each was considered individually, and it wasn't viewed as a -- a cluster that would -- would set off an alert that there was something linking them together.
LANGDALE: Well, it set him off doing a summary of cases
and a Thematic Review, didn't it? So it was unusual, you had not had that before from the neonatal unit?
HARVEY: I'm not sure it was those three but those three were part of a much larger number that did, yes.
LANGDALE: We will go to that then, I think it might help you more to see the detail. That can go down. Before we go to the detail of what you learnt when, you mentioned the Clinical Commissioning Group and you mentioned the CQC. As you sit there, what's your impression of how much information you were sharing, first of all with the CQC, through 2016 about the paediatricians' concerns that there was a Beverley Allitt situation?
HARVEY: Firstly, I don't think that we were aware that we had a Beverley Allitt situation.
LANGDALE: Just to give you context there, Mr Harvey, we see that, and there's been some evidence about it with your former Exec colleague, Mr Chambers. In a meeting on 30 June there was Mr McCormack at that meeting saying: "What's being raised is a Beverley Allitt/Shipman situation." So Mr McCormack, did you know him well in the hospital?
HARVEY: I did, yes.
LANGDALE: Is he a plain-speaking man?
HARVEY: Yes.
LANGDALE: And he seems to have put it right out there centre at that meeting, doesn't he, this is the situation that's being raised?
HARVEY: I don't believe that he said that it is. He might have said: is it? In terms of your question with regard to the CQC, I am confident that I shared and we -- we're sort of moving on -- the Thematic Review of Dr Brearey with the CQC ahead of them -- their visit in February 2016.
LANGDALE: In terms of the Commissioners, it doesn't have to be early February 2016, if you can remember moving through the year, how much information were you sharing with them, for example after O and P had died? So let's --
HARVEY: Sorry, I missed the last --
LANGDALE: After O and P had died, so late-June 2016 onwards, how much were you sharing with the Commissioners?
HARVEY: I -- I can't recall how much I shared with the CCG. I was slow and limited in my communications with Specialised Commissioning, who had oversight of neonatal services.
LANGDALE: That's right, it is the Specialised
Commissioners, yes.
HARVEY: Sorry?
LANGDALE: It is the Specialised Commissioners, not the CCG. Carry on.
HARVEY: Yes. And I -- my concern was always that we should be able to tell the parents and The Families what had happened. I was also mindful of the risks of the effects of press leaks and unfortunately subsequently that came to pass. That probably resulted in an inappropriate degree of keeping hold of the information, although I would also say that there wasn't a great deal of pushback from Specialised Commissioning with regard to what they were being told at any particular time.
LANGDALE: Let's move now to some of the documents, Mr Harvey. If we can have on screen, please, INQ0014813, page 4. This is a Board of Directors meeting, 1 September 2015 and you're present. And can you tell us, please, page 10, there's an entry there to receive the Trust's mortality report: "Mr Harvey presented the mortality report to the board and outlined the new process for review of mortality at the Trust. He now personally reviews every death in the Trust and then refers cases for further review where appropriate."
You deal with this in your statement, Mr Harvey, at paragraph 61 and say that you were focusing on adult deaths?
HARVEY: That's correct.
LANGDALE: So tell us, what was the process for adult deaths? What were you doing, the Medical Director reviewing them, and why were you reviewing them?
HARVEY: On a national level, the index of mortality had been introduced and effectively league tables were being published of individual hospitals' performance with regard to mortality and I had instituted a process by where we had teams of doctors and nurses reviewing deaths, I was overseeing that, and to allow publication of regular reports to the board with regard to concerns about levels and types of care.
LANGDALE: You tell us: "I was confident that there was a process in place for the review of child deaths under the paediatric and neonatal units but the same could not be said for adults." So what did you think that process was for reviewing child deaths?
HARVEY: My understanding of the process that we had from -- for child deaths was, was two-fold. On a national level it was the publication of MBRRACE data,
which allowed comparison to other hospitals and Trusts. Within the hospital, I believe that we had a neonatal Mortality Review group who were responsible for reviewing individual cases.
LANGDALE: That can go down and can we have instead, please, INQ0003144, page 5. This is an email sent to you, Mr Harvey, and others, from Ruth Millward: "We have three neonates under review. Plan is to arrange a speciality-specific SI Panel ..." Just a bit further down, thank you, Mrs Killingback: "... for next Friday to go through all three cases. Child death is no longer included in a Serious Incident by definition in the SI framework or on STEIS. However, it may be reported as a Serious Incident under any other category." So Ms Millward setting the situation out for you. Then we see a further email on page 4 from you: "Can you keep me informed in relation to the three neonatal deaths as I manage both legal and on the bereavement team and there will need to be confirmation of processes going forwards." Sorry, that's from Sarah, Sarah Harper-Lea. So you are alerted to those deaths, aren't you, by Ruth Millward in 2015?
HARVEY: I would only say that I didn't attend that meeting. I don't have my calendar, but I understand that I was on annual leave and I am not able to recall seeing that email at that time.
LANGDALE: So when you came back -- you tell us you were on leave 22 June until 6 July. So when you came back, do you have a habit of going back through your emails when you have been away or do you start again when you come back? What's the position?
HARVEY: I would generally try to review the emails that I had missed while I had been away.
LANGDALE: We know that a summary document was prepared for that meeting by Dr Brearey. We can have that on screen, please, INQ0003191, page 1. You tell us in your statement you have seen this document before, but you can't recall who provided it to you. But we see here, if we go over the page to page 2, then page 3, we see in that summary document early on Dr Brearey thought it necessary to include the number of deaths for the whole of 2014, three, and of course you are reporting or he is reporting on three in less than three weeks. And if we go to page 5, he has set out the survival, the percentage survival rate and of course he has given in the report the gestations and it sets out for Baby A [Child A], that's 31 weeks, 97.9% survival rate, Baby C [Child C], 30 weeks, 97.3% and Baby D [Child D], 99.4%. So he's set out --
LADY JUSTICE THIRLWALL: I don't think we have got right document on the screen.
MS LANGDALE: Sorry. No, that is right one, with the gestation at the left and the survival percentage on the right.
LADY JUSTICE THIRLWALL: So can we just have the number again, I think it's gone.
MS LANGDALE: That is page 5. I am giving you the gestation dates from an earlier part in the report.
LADY JUSTICE THIRLWALL: Oh, I'm sorry.
MS LANGDALE: Confusing, sorry.
LADY JUSTICE THIRLWALL: That's my fault.
MS LANGDALE: But we know Baby A [Child A] is 31 weeks, so if we look at 31 weeks it's 97.9; Baby C [Child C] is 30 weeks, 97.3; Baby D [Child D] 37 weeks, we need to go further down to see that. So he has chosen to set out in that summary the number of deaths, compared with the year previously, and the survival rates for babies of that gestation generally. Would you have looked at those figures -- it sounds like you are quite interested in numbers: would you have looked at those numbers with any interest when it was sent to you?
HARVEY: I -- I can't say for sure when I first saw this particular document. I would have looked at the figures but I would also have been influenced by the text and the description.
LANGDALE: These are small numbers; it is the people and the babies that matter, isn't it, in the end?
HARVEY: Yes.
LANGDALE: But you look at this stuff, so tell us?
HARVEY: Sorry, I don't understand the question.
LANGDALE: Tell us: what would you take from that, those statistics?
HARVEY: I'm not sure I would have taken anything from those numbers per se.
LANGDALE: That can come down and, if we can have INQ0003530, page 1. This is the Serious Incident Review and you are not there. It's a very short note of that meeting at the top, but we know that Alison Kelly did suggest reporting [Child D] through the STEIS system. Would you have seen the report through the STEIS system that came back in relation to Baby D [Child D]?
HARVEY: Not as a matter of routine, I don't think, no.
LANGDALE: Have you seen it since?
HARVEY: Not that I recall.
LANGDALE: But at the time, it would be something that your colleagues would no doubt tell you about: you are
not reporting many babies through the STEIS system, are you, at this time?
HARVEY: Possibly. But I -- I honestly can't recall it being raised with me.
LANGDALE: Well, we see, if we go to INQ0014204, page 2, this is the STEIS report or the "Level 2 Root Cause Analysis Report" for Baby D [Child D]. It sets out, in that fourth paragraph under "Detection of incident": "The incident was escalated to the Medical Director and Director of Nursing and Quality, subsequently discussed in Extraordinary Executive Serious Incident Panel, there had been three neonatal deaths in a short period of time and the circumstances were discussed to identify if there was any commonality which linked the deaths." From your perspective, was it important to do that when you had three in succession, just to look to see if there were any environmental factors, whatever they were, that linked the deaths, given that there were three in that short period of time?
HARVEY: Yes, I would agree with that. I would -- I would only comment that it is factually incorrect to say that it had been escalated to me, insofar as I -- I was on leave and hadn't received -- or didn't receive the email in a timely fashion and wasn't at the meeting for the conversations.
MS LANGDALE: That may be a convenient time to stop for the lunch break, Mr Harvey.
LADY JUSTICE THIRLWALL: Thank you, Ms Langdale. So we will take a break now and we will come back in at 2.10.
(1.06 pm)
(The luncheon adjournment)
(2.10 pm)
MS LANGDALE: Mr Harvey, before the break, I had referred you to the emails that alerted you to three deaths and you said you were on leave then and the STEIS report for Baby D [Child D], which you said you don't remember being escalated to you. We do know that you attended a Serious Incident Panel in relation to [Child E] on 13 August 2015, so if we could go please to INQ0002659, page 4. While that's being found, Mr Harvey, it's right that you were invited to Serious Incident reviews of deaths of babies and neonates, weren't you: you weren't able to attend them all, we see, but you were invited to them?
HARVEY: I'm sorry, which meetings were those?
LANGDALE: The meetings for the babies that died: you were invited to reviews for those babies but I think
you, in fact, only were able to attend Baby E [Child E]; is that right?
HARVEY: Is this the Serious Incident Review?
LANGDALE: Yes.
HARVEY: Yes, I wasn't able to -- well, I was on leave for the earlier meeting, yes.
LANGDALE: But you would normally go?
HARVEY: Yes, I would.
LANGDALE: So what is the purpose of you going to these reviews?
HARVEY: The purpose of me attending was, as with Mrs Kelly, that there was senior medical and nursing oversight of incidents that were coming through.
LANGDALE: This is coming through because it's reported as an unexpected death, isn't it? If we look at the top, on the left-hand side, a diagnosis of "GI bleed" was made "Query Cause". Reference at 2300 hours to a further GI bleed. "Baby had a sudden deterioration at 23.40 hours with bradycardia down to 80-90 bpm. There was a noted colour change over the abdomen, purple discoloured patches", and so it continues. We see on the next page, page 5, it's recorded: "No PM, has been discussed with Coroner. Unexpected neonatal death of a Twin."
Did anyone in the meeting make reference to the fact that A, C and D had happened just over a month before?
HARVEY: Not that I can recall.
LANGDALE: We know Letby was the incident reporter but you wouldn't have known her name then, but it's clear that this unexpected death had been brought to your attention and you sat in the meeting discussing it; is that correct?
HARVEY: Yes.
LANGDALE: You tell us in your statement: "I don't recall any discussion regarding an increase in neonatal mortality at this meeting and I don't think anyone sought to draw a link." Did you draw a link or think about the position?
HARVEY: No, I don't think I did. I think that was because this case was considered on its own -- sorry, "merits" isn't the right word, but was considered on its -- in isolation and the fact that there was to be no postmortem, that it had been discussed with the Coroner, I felt indicated that both the medical staff reporting and the Coroner did not have any concerns, so that, even though it was titled an "unexpected neonatal death", there wasn't any concern with regard to that either amongst the medical team or the Coroner.
LANGDALE: We know now, of course, that Mother E had very really evidence to give about her child's deterioration and what she was told by Letby at the time.
HARVEY: Yes.
LANGDALE: As part of this process, was there no contact with the mother at all to discuss with her how she had experienced what happened that night?
HARVEY: Not in those terms. Although the form clearly indicates that there is a duty of candour assessment and, on the back of that, one would anticipate that there would have been contact with the parents to fulfil that requirement.
LANGDALE: Is that something you would ask about in the meeting yourself, to say, "Look, who's speaking with the parents or discussing this"?
HARVEY: I think if it was -- it was part of the form that we considered and I think if there was nothing under the duty of candour assessment to indicate that that had been fulfilled and there had been a conversation, then, yes, I think either Mrs Kelly or I would have queried what the plans were for a meeting or a conversation with the family.
LANGDALE: That can come down, please, and if we can have INQ0003200, page 1. Wednesday, 9 September, at an Executive Directors Group meeting, we see at page 3, under the standing item, Sian Williamson reports that a baby death had been reported to STEIS and an investigation was taking place I took you to that report earlier, but this is where it's highlighted to you where the report is happening at that time. So you've been in the Serious Incident Review for Baby E [Child E] and this is being reported to you at this meeting. What does "standing agenda item" mean, does that keep recurring and coming back?
HARVEY: It means that quality matters was one item that would feature on the agenda every meeting, yes.
LANGDALE: That can come down and if we go please to INQ0003575, page 1. In fact, if we can go to page 2 first. We see an email from you to Dr Joanne Davies: "With the CQC due in less than one month, is there anything that I need a heads up relating to the most audit report? Are there any significant concerns outliers or actions?" If we go back to page 1. Dr Joanne Davies replies to you. The Inquiry has heard evidence about this largely obstetric report that was done, although it was entitled "Stillbirth and neonatal deaths", in fact Mr McCormack and Dr Fogarty accepted it was largely an obstetric report, wasn't it?
HARVEY: It was, yes.
LANGDALE: So no mistake about it, no one thought that had done anything in terms of investigating neonatal deaths, it was looking at antenatal care, improvements around care, but not the deaths themselves or causation of deaths?
HARVEY: No.
LANGDALE: So you have asked for that, you get that response. We see as well, if we go to INQ0038984, page 2, you asked Dr Brearey the same. It looks like you are asking for the external review that you commissioned. We know what you are referring to there is Dr Subhedar contributes to the Thematic Review, doesn't he, from your --
HARVEY: Yes, I believe this refers to the Thematic Review, yes.
LANGDALE: If we go back to page 1, we see Dr Brearey's response, at the bottom: "It wasn't an external review but we did have a review of all the cases from 2015 to identify any themes or common learning and I did invite an external neonatologist to join us, which was very useful." You then communicate with Alison Kelly about whether the review should get joined up at the Women and Children's Governance Board. That, in fact, never happened because they were very different reviews,
weren't they, the obstetric and the neonatal deaths?
HARVEY: They were different bundle but one would say that they were contiguous, in terms of it being stillbirth and neonates, and my feeling was that there was potential for joint learning, a joining up of the combination of antenatal and postnatal and neonatal care and, I -- I believe the response I got from Dr Brearey was that that was an appropriate action.
LANGDALE: That can go down, please, and can we have INQ0008927, page 7. While we are finding that, Mr Harvey, which board did you think, as far as the Thematic Review and the neonatal deaths review was concerned, which committee should be hearing about that? QSPEC or the Women and Children's Board, which one?
HARVEY: In the first instance, I would have imagined it should have gone through the Women and Children's Care Governance Board. The line of escalation normally would be then through the divisional board and, ultimately, in terms of the board committee, is the Quality Safety and Patient Experience Committee.
LANGDALE: Because it clearly was a matter for that patient safety experience committee, wasn't it --
HARVEY: The yes.
LANGDALE: -- the Thematic Review of neonatal deaths?
HARVEY: Yes.
LANGDALE: So when it got there, it is obviously a matter of interest when other people could have had an input into it?
HARVEY: Yes.
LANGDALE: Looking at this email, please, from Sarah Harper-Lea, and you are copied into this, at this time, February 2016, there's reference to [Child A]'s Inquest, various bits of information being attached. Reference at the bottom to: "The Coroner also believed the Trust should consider completing a SUI report due to the complications in long line and catheter insertion. Overleaf, Sarah Harper-Lea says: "We were informed [Child A]'s parents had a number of concerns in relation to his treatment and were seeking legal representation. In terms of the Inquest investigation, it is noted Dr Brearey is completing a neonatal review referred to within the QSR report attached. If the neonatal review has been completed do you consider that a SUI investigation, as suggested by the Coroner needs to be undertaken or do you consider this review will cover the matter sufficiently?" Then if we go back to page 7, the previous page, we see your reply: "Thanks Sarah. Yes, I agree. I think that the timescale is unrealistic. I believe Steve's review is equivalent of a SUI but we can make a final decision when we see the report. I believe that an external neonatologist was involved." So what is your understanding of your role in terms of, first of all, the Inquest for [Child A]? You know it's happening you know the Coroner has been notified: who communicates with the Coroner from the hospital?
HARVEY: My understanding was that communication with the Coroner was through Stephen Cross' office.
LANGDALE: So you yourself didn't have a direct conversation?
HARVEY: No, I didn't.
LANGDALE: The Inquiry has heard evidence from Dr Brearey that, around this time, he asked for a meeting with you, Mr Harvey; what do you say about that?
HARVEY: I would say that that doesn't match either my recollection or the documentation. We've already seen the email that I sent Dr Brearey asking for confirmation that there had been an external review, to which he confirmed there was and sent me a copy. This was in advance of the CQC visit. He did not, in that email, request a meeting, urgent or otherwise. He did not send any further emails requesting urgent meetings, nor did he take advantage of
my open-door policy to bring any concerns to me, nor did he approach my PA to arrange an appointment to meet me to speak.
LANGDALE: It does look as though you were sent on 7 March, INQ0008927, page 5, the report attached to this email. So the draft minutes of the Thematic Review meeting had been sent before and now you get the report sent, but you also get this email from Sarah Harper-Lea. So it's paragraph 2 that attaches for you the Thematic Neonatal Review, and reference to paragraph 1 for Baby A [Child A]'s Inquest: "The Inquest for the above had been set by the Coroner to be held on 23 March. This date has now been withdrawn and will be set at a later date. This is due to the fact that the Coroner requested an additional eight reports be obtained from the junior doctors that were involved in [Child A]'s care and that a Thematic Neonatal Unit Mortality Review needed to be completed reviewed and shared as appropriate." Do you know if that Thematic Neonatal Unit Review was shared with the Coroner?
HARVEY: I don't know for certain, although I seem to recall in the documents that have been made available to me by the Inquiry that there is reference to the Coroner having had a copy of the Thematic Review.
LANGDALE: Was it shared with the parents?
HARVEY: I -- I can't answer that.
LANGDALE: Well, it wasn't, was it? I don't think that was shared with the parents at that time. Do you know, if not, why not?
HARVEY: I don't, no.
LANGDALE: Who would make that kind of decision, whether it would be shared with the parents?
HARVEY: I suppose it depends on whether it was going to be the whole Thematic Review or the portion of the Thematic Review with regard to just their baby.
LANGDALE: We see under "Action required": "In order to prepare for the Inquest we need to consider duty of candour which Steve Brearey has advised Dr Saladi would be best placed to do", having been involved in the treatment of the baby presumably. Do you know what the hospital did or secured in terms of assistance or support in relation to Baby A [Child A]'s Inquest?
HARVEY: I don't, no.
LANGDALE: If we go, please, to INQ0007197, page 138, this is an executive meeting. If you look in the handwriting, I think this is Stephen Cross' handwriting, isn't it? See to the right: "Inquest statements need to be reviewed by
Ian Harvey and Alison Kelly. Coroner pushing for statements." Does that ring a bell about how statements were looked at?
HARVEY: I -- I have no recollection of reviewing those statements.
LANGDALE: Have you ever been sent statements that are going either to a court case or an Inquest that doctors have written?
HARVEY: No.
LANGDALE: It does seem to record that, doesn't it, at that meeting: "Action: prepare statement bundle ..." This is Stephen Cross' notes; do you agree?
HARVEY: They are, yes.
LANGDALE: It looks as though: "Action: prepare statement bundle for Alison Kelly and Ian Harvey." Would that be him doing that?
HARVEY: Pardon?
LANGDALE: Would that be him preparing that statement bundle for you, that note?
HARVEY: It would be he or his team, yes.
LANGDALE: So might you have asked for the statement bundle, given the Coroner has asked for statements from other doctors just to see what's happened?
HARVEY: I'm unable to answer that. I have no recollection of being sent any statements.
LANGDALE: But the principle of it, is there a problem with that from your perspective, on one view?
HARVEY: No, there is no problem with the principle, no. If Stephen Cross felt that there was a reason why Alison Kelly and I should review statements from a medical and nursing point of view, no, I would have no issue with that.
LANGDALE: If we go over the page, it looks as though, in this meeting, the meeting is going at 2016, so I have moved on in time: "Nurse starred 2012. Why now? Occupational Health referral. What about nurse? More support." So at this time of this meeting, it's 2016, there is discussion, isn't there, very clearly between you about Letby in this meeting?
HARVEY: Yes.
LANGDALE: So you are all discussing Letby, concerns that have been raised that she's causing deliberate harm, murdering babies and [Child A]'s Inquest is coming up. So Stephen Cross might have every reason to want to know what the statements say and what's being said, mightn't he?
HARVEY: Yes, he might. I don't think at that time there was any statement to the effect that someone thought Letby was murdering babies.
LANGDALE: The Inquiry is investigating whether the information the Coroner has had was adequate so my broader question, by August 2016, you are all discussing a nurse and effectively reference to "Started 2012. Why now?" What does "Why now?" mean?
HARVEY: I can only imagine that it was, you know, we have had a nurse working in 2012, if there were any issues why would they be arising three or four years later.
LANGDALE: So placing first and foremost why would she be killing now, it is a question, but you know it's a question?
HARVEY: I think -- not necessarily because two lines above it does say: "Is it competency of nurse?"
LANGDALE: We had already had meetings, hadn't we? We will go to them in the chronology I just need to deal with the Inquest point now. In June 2016, there had been meetings expressly referring to Beverley Allitt and killing, et cetera. So by the time of this meeting, it was very much a conversation point, wasn't it?
HARVEY: I'm sorry, I have lost track of the date of
this meeting.
LANGDALE: This is 2016, August 2016.
HARVEY: Right, yes.
LANGDALE: This is happening in August 2016 --
HARVEY: Yes.
LANGDALE: -- being asked about Baby A [Child A]'s Inquest statements required by the Coroner and, by then, you have all been talking about, in various meetings, whether Letby is killing babies?
HARVEY: Yes.
LANGDALE: You are saying there, well, why now killing babies, she started in 2012, but there is no question that you are all aware it's about whether she is killing babies and Baby A [Child A]'s Inquest is coming up. So do you think the Coroner was adequately informed about the suspicions and concerns you had about Letby killing babies and whether or not Letby was looking after this baby?
HARVEY: I don't -- I don't believe that that cross-referencing happened. But potentially, well, I believe that the Coroner had had a copy of the Thematic Review, and I believe it would have been called out in that.
LANGDALE: So that can come down. Let's go to the Thematic Review, please. INQ0006817, page 1. If we go
to page 7, please. Dr Brearey is identifying on page 7 themes during discussion of all of the cases. It will come up in a moment. We see under (7) "Deteriorations", Dr Subhedar's suggestion, he is making very clear the babies suddenly and unexpectedly deteriorated and there was no clear cause for the deterioration/death identified at postmortem. So he's not describing simply deaths. He's describing suddenly and unexpectedly dying. Did you appreciate the significance between the two: that he wasn't simply saying there are deaths, he was saying Sudden and Unexpected Deaths with no clear cause, no medical cause identified?
HARVEY: This was a feature of the meeting that we held in May. This was part of the conversation and, at that point, a number of -- well, a couple of actions came out of that meeting. I do not recall in that meeting Dr Brearey particularly stressing this one feature.
LANGDALE: Let's worry about the meeting when we get to it. Look at this document. What alarm bells does that ring for you, that description, if any, from the sound of it?
HARVEY: "Unexpectedly" is a word that would be a cause for concern.
LANGDALE: And "sudden, with no clear cause"?
HARVEY: Um, "sudden" less so; "no clear cause", possibly. And I -- I can't remember at what point that I exchanged emails with Dr Subhedar with regard to this particular issue. I think that was further down the line. But at the time that this report was presented, it wasn't presented with any urgency or any request for an urgent meeting and that evening reading paragraph 1 would alter how one perceived.
LANGDALE: You are the Medical Director, you get an email where it identifies there's a review to follow. When you get a review, it's about a number of deaths of babies, Sudden and Unexpected Deaths. Never mind anything else that was or wasn't said in this page: were you worried when you read that as to what that might represent?
HARVEY: I probably wasn't as worried as I should have been, with retrospect.
LANGDALE: What have you learnt, medically or otherwise, that makes you realise that in retrospect, that "sudden and unexpected" was significant in what was being said here?
HARVEY: I think that came out eventually from a specific request that I made of Dr Jane Hawdon. It hadn't been something that had been explicit elsewhere. It certainly hadn't been explicit in her report. I had
had a degree of reassurance --
LANGDALE: Let's worry about that letter, sorry, we'll get to Dr Hawdon but --
HARVEY: Sorry, I was just going to say I had had a degree of reassurance also from Dr Subhedar, which was one reason perhaps why I hadn't chased or requested further information from Dr Hawdon sooner.
LANGDALE: Timing of arrest. Dr Brearey has identified arrests between midnight and 4.00 am. So he's found a pattern there, and he's bothered to put that down. What did you make of that?
HARVEY: In isolation, I didn't make a great deal of it. This coincided also with a report coming out from Imperial College, with regard to concerns specifically at weekends. But it is recognised that there is a greater risk of incidents, of care failures at weekends and during the night and, without any further information there, that was how I interpreted that.
LANGDALE: In the Dr Shipman case, a GP noticed patients were dying in the afternoon at home, Dr Shipman's patients when he went to visit them. She didn't know any more than that but the pattern of dying on their own at home in the afternoons was unusual, that alerted her to something that was unusual. Do you think Dr Brearey identifying this should have made you think, "This is
unusual"?
HARVEY: Not insofar as the action underneath indicated that they were going to be carrying out a further review, focusing on the nursing observations. So it appeared from that that there was further investigation and action ongoing with regard to that point.
LANGDALE: Attached to this, there was a table, wasn't there, identifying names of staff allocated and on duty.
HARVEY: Yes.
LANGDALE: What did you think when you saw -- we know it was Eirian Powell -- somebody had been required to go through shifts and identify who was present at Sudden and Unexpected Deaths, just the mere fact of putting that together?
HARVEY: I -- I viewed it as being comprehensive. I viewed it as an investigation into an association, potentially in terms of competence. I viewed it also with regard to a look at the actual staffing levels and the associations of numbers of staff at any given time.
LANGDALE: Eirian Powell agreed in oral evidence that she did feel sometimes, and when she looks back, the fact that she was having to do this with rotas, it wasn't really her role and she accepted it's something that the police might be doing. If you are pulling this stuff together and looking who's where, when, in the
circumstances that Dr Brearey has outlined it's an investigative role, isn't it, it is something different from --
HARVEY: It is.
LANGDALE: -- drawing up rotas. It is, isn't it, it clearly is, when you see it?
HARVEY: In retrospect, yes.
LANGDALE: She was being asked to do that as the deputy ward manager who very much supported her staff, including Letby at that time?
HARVEY: I -- I don't recall her being asked to do that. I think she undertook that as part of the review that they were doing.
LANGDALE: Yes, the review with Dr Brearey and Ms Powell were doing it together --
HARVEY: Yes.
LANGDALE: -- and that was her task which she duly fulfilled?
HARVEY: Yes.
LANGDALE: When you saw that, again as the Medical Director, did you look and think, "Who's doing this why are we doing this"?
HARVEY: No, I -- I viewed it as a comprehensive review of that unit. It didn't, at that time, set off the alarm bells that perhaps it should.
LANGDALE: You did say a moment ago, if the Coroner had been sent this review, that was adequate information and the Coroner would be aware of your concerns or the hospital's concerns. You were sent the review. Were you aware of the concerns then?
HARVEY: Sorry, of concerns and when?
LANGDALE: Well, when I asked you a moment ago about the Coroner being sent the Thematic Review and whether the Coroner got adequate information, you said he would have been aware of our concerns, he's got the Thematic Review: this review.
HARVEY: Um.
LANGDALE: So what concerns should the Coroner have taken from this review?
HARVEY: I'm not sure that he would have concerns, other than the fact of the numbers. I don't think at the time that we considered this report, in the meeting of May, that there was the high level of concern that you are suggesting and alluding to. Certainly, it wasn't something that Dr Brearey pushed in that meeting. Dr Brearey, at the end of that meeting, seemed comfortable with the conversations that we had had, and with the action that was proposed and, obviously, with looking at this through -- through hindsight, everything looks very different. But that
misrepresents the conversation and the meeting that we had around this document in the May that this was brought to that meeting.
LANGDALE: Okay, we will go to that in a moment. Can we, first of all, please, have a look at INQ0003089, page 2. It's an email from Ms Powell to Ms Kelly and it's forwarded to you: "Hi Alison. I was hoping we could arrange a meeting with you to discuss how to move forward with regards to our findings. High mortality. Eight as opposed to our normal two to three per year a commonality was that a particular nurse was on duty, either leading up to or during. This particular nurse commenced working on the unit in January 2012 without incident. A doctor was also identified as a common theme, however not as many as the nurse." She says: "Thanks for the update. Could you please send Ian and I the report. Once we have reviewed, I think it would be good for me, you Ian, Steve and Ravi to meet to discuss." We see if we look at INQ0101115, page 12 a handwritten note, which I think might be one of yours, Mr Harvey; is that your handwriting?
HARVEY: It is, yes.
LANGDALE: So you have a one-to-one with Alison Kelly: "Neonatal review. Query results from external. Review to QSPEC." What does the next bit say?
HARVEY: "? Issues with alignment with maternity."
LANGDALE: That was your earlier thought about whether it should be aligned with that Fogarty review?
HARVEY: That's right.
LANGDALE: "Not attending governance meetings." What does that refer to?
HARVEY: I'm -- I -- I could guess but it would be no more than a guess, so it's probably not appropriate to make any comment.
LANGDALE: "People not attending them."
HARVEY: Yes.
LANGDALE: We have seen that on the apologies, there are a lot of apologies. That brings me to another question: there are a lot of meetings as well and, as far as this issue is concerned, that don't seem to be addressing this one, the neonatal deaths. We will come to it when it finally reaches the Women and Governance Board, but when there are so many meetings and we see a critical issue like this not raised in any of the meetings for some time, were they effective, the meetings, the big meetings for QSPEC and the Women's and Governance, or
were people not attending and they weren't working particularly well?
HARVEY: I -- I think that the -- the alarm bells that should have been leading to more rapid escalation weren't ringing. I know that it references needing a one to one with Dr Jayaram. I cannot recall whether that took place and, if so, how expeditiously after that meeting it was.
LANGDALE: But you thought that, did you, that you needed to have a one to one with him?
HARVEY: Yes.
LANGDALE: So if it didn't happen, whose responsibility is that?
HARVEY: It would be -- well, he would only know about it by me approaching him.
LANGDALE: So if he hasn't had one with you, you recognised the need and didn't follow through on it?
HARVEY: I might have done but I don't have any record of that.
LANGDALE: What did you mean, "Query results from external"?
HARVEY: I -- I'm, I'm questioning the results presumably from the Thematic Review. My notes are obviously very short and I can't be any more specific.
LANGDALE: You both appear to be saying it should go to QSPEC, the neonatal review, yes?
HARVEY: Yes, and I think that's reflected in a communication from Alison Kelly to Ruth Millward, subsequently.
LANGDALE: Can we go next please to INQ0003121, page 1. This follows Alison Kelly receiving that rota with Letby's name in red. She sends an email to you: "Hi Ian, I have realised that the NNU doc review that was sent to us was indeed the review with the Consultant from Liverpool Women's. Eirian has also sent through a separate doc with the clinical detail and the teams involved. The above is not going to QSPEC today but thought it will need to go to May's meeting. Before then, I suggest we meet with Steve and Eirian in early May to check on actions as a few are due to be completed in April." Did she accompany that email, it looks like she did, with the reviewed table, which had got Letby's name in red?
HARVEY: (No audible response)
LANGDALE: Can you remember?
HARVEY: I can't remember, sorry.
LANGDALE: It may be her name had stood out before but when her name was in red done by Eirian Powell, it really stood out, didn't it, how often she was there?
HARVEY: And I think Alison Kelly referenced that as a concern, yes.
LANGDALE: Well, they were identifying, Dr Brearey and Ms Powell, in April 2016 that she was a common factor in the events they were concerned about; is that fair, you appreciated that?
HARVEY: Sorry, I missed the question.
LANGDALE: You appreciated that she was highlighted as a common factor in the deaths and events that they were concerned about?
HARVEY: She was associated, yes.
LANGDALE: Well, how could she be associated: what was your thinking?
HARVEY: Well, she was a factor common to a -- a number. I don't recall that she was associated with all.
LANGDALE: What are the options if she was the factor that was common?
HARVEY: Based on the conversations that we had, the most likely was simply the fact that she was more commonly on duty, on duty for longer, tended to care for the sicker babies: all the points that Eirian Powell had raised -- raised subsequently in the meeting that we had. I also am aware that there was an email from Dr Brearey referencing the fact that -- and this is
perhaps getting ahead of her -- having been taken onto days.
LANGDALE: Let's get that email up then, INQ0107818, page 2: "There's a nurse [this is to Alison Kelly] on the unit who's been present for quite a few of the deaths and other arrests. Eirian has sensibly put her on day shifts only at the moment but can't do this indefinitely. It would be very helpful to meet before she's due to go back on night shifts." If we go to page 1 before that: "Hi Ian, please see Steve's comments below which alarmed me!! Since receiving this I have asked Karen Rees to liaise with Eirian regarding this particular nurse. Eirian, further review is attached for info. "Currently reassured there are no issues so I think this is worthy of a wider review, hence our planned meeting. This has been arranged for next Wednesday to review all the issues with us." You say: "I see what you mean, although perhaps just meant that he was concerned for her." What do you mean "concerned for her"?
HARVEY: Well, I -- I think if we look at Dr Brearey's email on the previous page, I -- in saying that
"sensibly moved", his major concern seemed to be with regard to the effects of that on staffing levels. He doesn't seem to be alerting to any concern about her actual practice.
LANGDALE: That can come down. You then have a meeting on 11 May, and you deal with that, if you want to refer to it in your statement, at paragraph 162 onwards. Your recollection is this meeting took place relatively late in the day. You had also been sent various documents in advance of the meeting. It may be more helpful actually to see those first, to know what you had been sent. You'd been sent INQ0003243, page 1. This was a document prepared by Eirian Powell in a meeting with fellow nurse Karen Rees, and she produced this in anticipation of the meeting you were going to have and has set out there at the beginning: "There is no evidence whatsoever against LL other than coincidence." Had you read this before the meeting?
HARVEY: I don't recall when I saw this and read it. If I didn't read it before, I read it at the meeting.
LANGDALE: It records the line you have just repeated: "She is therefore more likely to be looking after the sickest infant on the unit." Yes?
HARVEY: Yes.
LANGDALE: Did you appreciate what band nurse she was and level of experience or did you not ask?
HARVEY: I -- I recall that, in the meeting, Eirian Powell made reference to her being qualified -- well, as she had there qualification specialty as -- as part of her -- that report, that review.
LANGDALE: So what band did you think she was: how experienced or what band?
HARVEY: I wouldn't be aware.
LANGDALE: No, so would you be surprised if she was a Band 5. There were a number of Band 6s on that unit, she was a Band 5, relatively recently qualified. Did you get that impression or ask?
HARVEY: Neither.
LANGDALE: So you took that as fact, did you, that she was looking after sicker babies and was experienced?
HARVEY: Based on who was making that statement, yes.
LANGDALE: Did you test it out in any way with Ms Powell and ask her, "Have you looked at the HR file, have you spoken to anyone else about her. She seems all of these things to you but have you had a look for anything else?"
HARVEY: Not at that point. I think that was a subsequent action.
LANGDALE: You were also sent a document, INQ0006951, page 1 called the "Additional Information Monitoring". So since 15 April 2016, Eirian Powell has been adding to her monitoring document of who's where, when, other incidents or events. Did you appreciate that it was an ongoing piece of work that Eirian Powell was doing when you had the conversation, that she was looking at events and continuing to look at events and who was there?
HARVEY: I -- I don't recall appreciating that then, no.
LANGDALE: Because it's significant, isn't it? You are having a meeting, you have been told someone's moved from nights to days and the head of the ward is effectively monitoring events and seeing who's there for them.
HARVEY: Yes, and I would also say that we looked to extend that because one of the actions that came out of that meeting was that any subsequent babies who collapsed should be reported. I'm not actually sure that happened but that was one of the actions in terms of us monitoring the continuing picture.
LANGDALE: So it was a monitor, wait and see?
HARVEY: It was monitor and alert if any concerns arise.
LANGDALE: Let's go to the notes of the meeting now then, INQ0003181, page 1. While I do, can I tell you what Dr Brearey says about this meeting. He says: "My recollection of the meeting is that I started by talking about the Thematic Review report. I explained that we had found some clinical areas of practice we could learn from in some of the cases but they were all relatively minor and none were common to all the deaths. Generally, I was happy with the NNU being an area of good practice and the previous annual mortalities had been quite low. I felt the number of deaths in 2015 and early 2016 were exceptional. I highlighted that six of the nine deaths occurred between midnight and 4.00 am which was unusual. I highlighted that there seemed to be a disproportionately high number of sudden, unexpected collapses. We had reviewed care on multiple occasions, including with an external neonatologist, and the only common theme was the association with Letby being on duty. We needed guidance and help on how to take this forward. I also made it clear these were concerns of my colleagues and were not mine in isolation." Do you agree with what I have just read to you, that he says that?
HARVEY: That doesn't accord with my recollection of
that meeting. I don't recall Dr Brearey being that detailed or that assertive.
LANGDALE: What's factually incorrect from what I have just read to you though? I mean, he said that he was highlighting a disproportionately high number, commonest theme was the association with Letby.
HARVEY: It wasn't -- it wasn't common to all. She was more frequently and --
LANGDALE: Six out of nine.
HARVEY: Sorry?
LANGDALE: Six out of nine, that is what he said. He didn't say it was all?
HARVEY: And that was balanced with regard to the detail that both Eirian Powell and Anne Martyn presented, in terms of presence on the unit, activity level, staffing levels, her frequency of attendance or work on the unit and I believe that there was a full discussion. The meeting was later in the day but that did not foreshorten it in any way and, at the end of that meeting, I recall that everyone was in agreement in terms of the continuing monitoring but stepping it up and ensuring that all babies who collapsed thereafter should be reported and that they would be monitored. I'm not sure that that actually happened.
LANGDALE: Whose responsibility is that, if it didn't? They were looking to you for leadership, guidance; did you say --
HARVEY: Well, the responsibility of that is with the clinicians who are caring for the baby who collapsed.
LANGDALE: What's your responsibility in this situation? They are actually telling you six out of nine arrests between 12.00 and 4.00 am and she was on duty or shift before 9 out of 10 of the deaths. That's actually what the Thematic Review data says?
HARVEY: Well, my responsibility was continuing to monitor and being aware in the event that any further collapses occurred. And it had obviously also, as part of this meeting been made clear that, as Stephen Brearey had alluded to in his email, Letby had been moved from nights to days, but the implication was that that was for her protection and well-being. Neither he nor Eirian Powell nor Anne Martyn indicated that it was for any other reason than that, and I believe that was supported by the tone of Steve Brearey's email that we have just been talking about and I think the tone of the meeting that we had and my recall of it would be supported by the tone of a subsequent email that Steve Brearey sent with regard to how he perceived that meeting.
LANGDALE: Let's look at what it says there: "Absolute no issues with nurse." That's Eirian Powell's view, isn't it?
HARVEY: Yes.
LANGDALE: She is giving you that view, and Dr Brearey told us that both Anne Murphy and Eirian Powell countered his concerns quite forcibly and with great emotion, saying there were no issues with her?
HARVEY: I think Dr Brearey's overstating in saying "with great emotion".
LANGDALE: We have seen a number of references to Eirian Powell being emotional around these events. It wouldn't be surprising, would it: she is running a ward while she is trying to put rotas together investigating who is there on sudden collapses?
HARVEY: No, I agree but my recall is not that I -- I -- I believe that she was factual. She was obviously passionate about her unit, but I don't think that she was excessively, as is implied, passionate with regard to defence of Letby. I -- I wouldn't accept that, as I have seen described, that she and Anne Martyn were in denial. I think that has all been overstated.
LANGDALE: Why does the word "circumstantial" appear there on the notes; who was discussing circumstantial?
HARVEY: I can only surmise that that is Eirian Powell
saying that any association is purely circumstantial because of the nature of the duties.
LANGDALE: Nature of the ...?
HARVEY: Letby's duties: working more commonly, more frequently, doing additional shifts.
LANGDALE: That meeting was 11 May and there was a QSPEC meeting on 16 May, where this issue wasn't raised -- the note can go down now thank you. This issue wasn't raised and it wasn't raised at the 20 June meeting either. You said you thought it might be raised at those meetings. You were sighted on the issue, it was a patient safety issue. Did you not think it should have gone to that June meeting, as you and Alison Kelly had hypothesised back in that meeting, one to one, on 11 April?
HARVEY: I think she had made reference to not being able to get it into the May meeting, but I -- I believe that it should have gone to the June meeting, yes.
LANGDALE: So why didn't it? That is what you both agreed; was there a reason you kept it away from there?
HARVEY: I -- I can't recall why it didn't go. All I can say is we didn't have a conversation about keeping it out of that meeting.
LANGDALE: It did go to the Women and Children's Care Governance Board. If we see INQ0003212, page 5, we will
see how it was raised there. That's how it's set out, just referring to mortality rate, not sudden and unexpected deaths with a commonality of a nurse. Dr Jayaram told the Inquiry he didn't think this was a forum where a suspicion concerning a member of staff would be raised, the Women and Governance Board; do you agree with that?
HARVEY: Never having attended that particular meeting, it would be difficult for me to -- to comment. I think there would be ways, if there was a real concern, to -- to raise that, even if it was separately with the Chair.
LANGDALE: That can go down, thank you. Now, I am going to move to June after O and P have died, and there were important meetings in June, weren't there. If we start with the emails please, INQ0003142, page 1. We see Dr Brearey, if we go over the page, page 2 first: "I am hoping Karen has already spoken to you about our two mortalities last week. We are going to discuss them at our senior paediatricians meeting on Monday." So Monday, 27, that is, June: "I was wondering if it might save time if you and Ian could join us at that meeting to discuss the ongoing issues." If we go over the page: "Yes, Karen did discuss this with me last week. I'm touching base. I'll discuss with Ian this AM re trying to attend your meeting." Why didn't you attend that meeting? You didn't attend it and we know there was a different meeting instead, the Babygrow meeting where Dr Jayaram mentioned it to you, but it would have been a good idea to go to the paediatricians' meeting, wouldn't it, as the Medical Director?
HARVEY: Without access to my diary I am unable to say what other commitment I had at that time.
LANGDALE: Two babies had just died on consecutive days, you say the meeting in May was monitoring whether anything would happen. Something very serious had happened. Hard to imagine anything more serious in the hospital.
HARVEY: I was aware that we had got the Babygrow meeting and we took advantage of -- of that. As I say, I -- I can't -- I don't know what other commitment there was.
LANGDALE: Let's look at INQ0015537, page 4. It's two meetings recorded, here the left-hand side is what we'll call the Babygrow meeting, where you are discussing an appeal, and then Ravi Jayaram has a conversation with you after it, doesn't he, and brings up directly the concerns about the two deaths at the end of last week
and the concerns about one nurse, very clearly telling you. Then you have got the other side, you have recorded: "Eirian Powell adamant no concerns." We know, on that 27 June morning, there was a meeting by the paediatricians and it may be helpful to have this on the screen from Dr Brearey's statement, so people can follow it INQ0103104-page 44, and you will be able to see it, Mr Harvey. It's paragraphs 248 to 250, if you could read those. (Pause) You see there it sets out the Consultant paediatricians meeting at 249 and, at paragraph 250, he in his statement to the Inquiry, he makes it clear he had spoken to you and said that, at their meeting, with the nurse managers, they had: "... all agreed the appropriate action was to remove LL from clinical duties." You responded to say that you requested an RCPCH Review. When you have finished reading that, Mr Harvey, we can go back to your second meeting on 27 June at 4.30, which reflects what you, Eirian Powell and Ms Kelly had discussed separate from the paediatricians. Have you had time to read that?
(Pause) Have you finished reading that?
HARVEY: Yes.
LANGDALE: So that can go down, and can we have INQ0015537, page 4. So on the right-hand side, this is the meeting, just the three of you, making all these decisions without you having even spoken to the paediatricians. You set out there various bullet points, that is the decision you take on the 27th at 4.30, with them; do you agree that note's accurate?
HARVEY: I -- I don't think that's telling the whole story, insofar as, at the end of the Babygrow meeting, there had been a discussion with Dr Jayaram and Mrs Kelly and myself. I had a conversation with Steve Brearey, subsequently, who informed me that everyone had agreed that Letby was to be taken off the unit, and I raised that issue with Mrs Kelly because that actually absolutely wasn't what had been said in the Babygrow meeting and it appeared that there had been a 180-degree change in the opinion of the senior nurses --
LANGDALE: Just pausing there --
HARVEY: -- and --
LANGDALE: -- there was no paediatrician -- Ravi Jayaram had a conversation with you, didn't he, after the meeting about that?
HARVEY: Yes, yes.
LANGDALE: But there was no paediatrician who said anything different to you in the meeting on 27 June, the Babygrow. You are saying it was a nurse that said something different?
HARVEY: Sorry, saying?
LANGDALE: Were you saying it was a nurse that said something different at the Babygrow meeting?
HARVEY: No, what -- the view was that there were no concerns with regard to Letby when we had that conversation with Dr Jayaram.
LANGDALE: It was just you and Dr Jayaram who had that conversation, wasn't it, it wasn't in the meeting. He said as you left the meeting he spoke to you about the deaths. It wasn't the subject of the Babygrow Appeal meeting?
HARVEY: Well, I believe Mrs Kelly was there as well. It wasn't the subject of the Babygrow meeting, no.
LANGDALE: No, it was a conversation he said he had with you afterwards to bring to your attention their concerns about the two deaths at the end of the week before?
HARVEY: Yes, and, in that conversation, Eirian Powell was involved and she was adamant that there were no concerns. I subsequently had a conversation with Dr Brearey, who was reporting back from the Consultants' meeting that I believe some of the nurses also attended, that everyone was agreed that Letby should be removed from the unit.
LANGDALE: Yes.
HARVEY: Now, that hadn't been the message that Eirian Powell had delivered earlier on and, for that reason, I contacted Alison Kelly.
LANGDALE: Let's put the email on that you are referring to, that you contacted, INQ0005727, page 1. This is the email where you set out to Ms Kelly: "Steve claiming that all in the meeting including Eirian and Anne Murphy agreed the nurse should be excluded from patient contact. 180-deg aboutface from them, if that's the case -- do you want to check?" So it's right Dr Brearey is right. He said to you, "We have all agreed, including Eirian and Ann, she should be off". But you are having a conversation with, who, that suggests they have turned about their decision making?
HARVEY: I am saying to Alison Kelly that, based on the conversation that we had had with Eirian earlier in the day, she appeared to have changed her opinion completely. So that Letby was to be excluded when that hadn't been the message that we had had earlier on in the day and I'm suggesting that we need to check whether
that was, in fact, the case.
LANGDALE: We then see Alison Kelly sends the agreed plan of action, INQ0005745, page 1, sending it those of you who made the decision without the paediatricians. You are setting out the following actions, and the third one is: "Ian Harvey and Alison Kelly to meet with Consultant group re their concerns." Who's "supposed to be liaising and the team to arrange"; who's DD?
HARVEY: Yes, DD was my PA.
LANGDALE: It's here. You have identified, "Royal College lead to facilitate external NN review". So that was your idea, was it?
HARVEY: It was my suggestion, yes.
LANGDALE: Dr Brearey then sends -- there is a series of emails, starting INQ0005744, page 3. We see that in paragraph 3: "There has been a watchful waiting approach since our last meeting with Ian and Alison in March. However, since the episodes and deaths last week there was a consensus at the senior paediatricians meeting that we felt that on the basis of ensuring patient safety on NNUE this member of staff should not have any further patient contact on NNU."
Then, if we go over the page to page 4: "I understand Ian and Alison met with Eirian and Ann yesterday afternoon, and that the outcomes from that meeting don't entirely fit with what was suggested at our senior paediatricians' meeting yesterday. Hence, it would be helpful to meet sooner rather than later, with nursing and medical colleagues together." That didn't happen, did it? You proceeded with the plan to instruct the RCPCH and, just if we can go back to page 2, we see Dr Brearey's email there: "Just to confirm then, Ian and Alison are happy for LL to work on the NNU in the same capacity as last week despite the paediatric consultant body expressing our concerns that this may not be safe and that we prefer her not to have further patient contact?" If we go back to page 1, it's Karen Rees who brings those emails to your attention. You then have a conversation, Mr Harvey, with Stephen Cross, if we go to INQ0003360, page 1. This is on the 29th. To be clear, those days -- 27th, 28th, 29th, 30th -- Letby is still working on the unit, while these days are passing. "Wednesday, 29 June, Harvey neonatal issue": "Emails from Consultants -- escalating concerns. Email this PM from further Consultant. Advice: police need to be involved now."
You should know, Mr Harvey, Stephen Cross says in his written evidence: "Based on what the Medical Director told me in relation to the neonatal unit, I noted my view in my notebook that the police should be involved now. This was not formal advice but rather a pragmatic view that, if there was a serious allegation made in the Trust, the police should be involved." Is his note accurate?
HARVEY: I -- Stephen Cross in this note --
LANGDALE: Yes.
HARVEY: -- I think is alluding to an email that Dr Saladi had sent and he was suggesting that the police were the only organisation that could carry out the sort of investigation that he thought would be of help. I don't recall Mr Cross giving the advice that the police needed to be involved now.
LANGDALE: It looks as though your meeting, what time does that meeting happen on 29 June?
HARVEY: Well, he's written 8.15.
LANGDALE: 8.15. So Dr Saladi's email is actually same date 8.17, a little bit later, and it's not actually Stephen Cross on that email list, but it's INQ0047571, page 2. The Inquiry has examined this email. We probably need to go to page 3 to get the end of that. There we are. So that's Dr Saladi's email --
HARVEY: It is, and I --
LANGDALE: -- and there is a series, isn't there, between the Consultants, and this is the one where you say, if we go to 0002 -- different INQ number, sorry Mrs Killingback. It is INQ0003112, page 2. The Consultants discuss going to the police. You are on the email thread and you say, when there's comments it's not being treated urgently -- as I have indicated, Letby is still on the unit: "Ravi -- this is absolutely being treated with the same degree of urgency -- it has already been discussed and action is being taken. All emails cease forthwith. We will share with you what action we are taking." Before you comment on that, if we can just go back to 112, page 1, Dr Jayaram chimes on the 29th: "The Trust are contacting the police soon, once some information gathering has taken place, which is why Ian asked for the chitchat to stop for now. The (unclear) is interesting and worrying though, given the discussions we have had." Dr Jayaram had seen you that day, hadn't he, he had had a conversation with you --
HARVEY: Yes.
LANGDALE: -- and he said you had said that you were going to the police, which is why he said that. But I think you dispute that, do you?
HARVEY: I think, firstly, I need to go back to the meeting with Mr Cross. I think the first three lines of his notes are in reference to me taking Dr Saladi's email to him to discuss with him. He and I were in the habit of often being the first Executives in the office and I'm not sure the timing of his note is completely accurate. I believe that I had received that email, I was on the circulation list, and I took it to Mr Cross for discussion and his advice. I think also, because of that, the advice to go to the police references Dr Saladi's comment in his email.
LANGDALE: So there Mr Cross is wrong when he says that in his written evidence then; is that what you say?
HARVEY: Well.
LANGDALE: His written evidence is that he --
HARVEY: I would say that our recollection differs. I do not recall Mr Cross, at any point at that time recommending we went to the police. I would suggest, given his, his background that had, at any point he said that, I -- we would have taken that advice. I've stated in my, at the beginning of my evidence
that I regret that we didn't go to the police in June/July 2016. I think there is evidence that the Inquiry has that, actually, that was in my mind at that time.
LANGDALE: Shall we put that email up, Mr Harvey, INQ0004751 --
HARVEY: And I --
LANGDALE: -- page 1.
HARVEY: I believe having seen that documentary evidence that I would accept that I probably did have that conversation with Dr Jayaram. The email, with regard to "all communications should cease forthwith" is one of those emails that I had counselled many others against sending. There is a habit, a tendency when one receives -- when there is, for want of a better phrase, a hot topic for emails, because they are so easy to send, to become more and more extreme and I was attempting to -- to dampen that down. But I fully accept that I -- I got that completely wrong, that email doesn't read as it should have done.
LANGDALE: Why, when you were thinking about it as well, didn't you simply respond to Dr Saladi's email then and say yes, we should go to the police?
HARVEY: Because the nature of that was I felt that that was something that needed discussion amongst the
Executives before I sent an email that once it's out there, it's out there, and I felt that this was such a serious matter that it needed discussion amongst the executives.
LANGDALE: You had a further meeting, didn't you, with the paediatricians, Wednesday, 29 June, very briefly, INQ0003371, page 1. We see at the bottom "Dr Ravi Jayaram": "Staff member -- almost always nurse in charge. Babies were stable then deteriorated. Why always this nurse? Babies were unwell but getting better. Babies not getting oxygen -- then crash. Babies did not respond as they should have done. Steve B. Disturbing things -- twin survived and got better in Arrowe Park." They are repeating their direct concerns that this nurse is murdering children; do you agree?
HARVEY: They are highlighting their concerns that she's associated, that there was -- at no point did they say in their view she was murdering them.
LANGDALE: Let's look at page 2, and get off this word association. Here it's suggested more than just an association with this nurse. Dr Jayaram: "How? Cannula air embolism." You are medically qualified. Air embolism: what's he suggesting there?
HARVEY: He is suggesting -- he is suggesting that, if there had been an act, was that a possible mechanism.
LANGDALE: He's talking about a deliberate harm, a murder, how that could be done. Could it be that? It's not simply an association. They are describing or thinking about methods, aren't they?
HARVEY: With respect, he's talking about the possibility of accidental as well as possible deliberate and it wasn't, as it says, something going on but what?
LANGDALE: You have another meeting on 30 June, with the execs and Sir Duncan Nichol, if we can go to INQ0003361, page 2. Again, why is this meeting happening without any doctor present? Why are you just discussing it with Sir Duncan and none of the paediatricians to put their views forward?
HARVEY: I would imagine that was called simply so that the Chairman was brought up to date with the situation that we were in.
LANGDALE: Well, he's up to date with your views, he is not necessarily up to date with the paediatric views, is he? Let's see what you say when he is there on page 2: "Can we decide what we are doing. Demands: review within two weeks. Staff member clear articulation of Consultants' concerns to Alison Kelly to formalise." That's an action plan for you and Alison Kelly,
yes, or is that one for Sue Hodkinson to do?
HARVEY: Sorry, what was the question?
LANGDALE: Look at the clear articulation of Consultants' concerns; who's supposed to get those concerns from the Consultants?
HARVEY: It's unclear whether that is Sue Hodkinson or Alison Kelly. It would appear that the action of closure of the unit, or me to see a plan is myself and Alison Kelly.
LANGDALE: You had very clearly had their concerns by this point, hadn't you?
HARVEY: Pardon?
LANGDALE: You had had their concerns very clearly stated in a Thematic Review and the conversations you had had with Dr Jayaram after the Babygrow meeting, and with the doctors, with Dr Brearey?
HARVEY: Yes, and I believe those concerns were shared with Sir Duncan Nichol at that meeting.
LANGDALE: Let's look at the next meeting notes, INQ0015639, page 55. This is the meeting where Mr McCormack says, look at the top: "Had thought member of staff responsible for deaths. Member of staff over the last three days, only going on what's being told by paediatricians, nights to days change."
That's reference to these deaths having happened when she's on days, you agree: o and P have died when she is on days and you have been monitoring it, there you have it, that's happened, O and P?
HARVEY: Yes.
LANGDALE: "Not sure what review will do." You are promising a review within two weeks from somewhere from the RCPCH. He says: "Not sure what review will do. Serious concerns, member of staff, fantastic unit but concerned Beverley Allitt/Shipman being raised." That is loud and clear and articulated, to use the phrase that follows the documentation; do you agree, clearly articulated?
HARVEY: It is clear in that note, yes.
LANGDALE: Couldn't be clearer. From that moment on there is just no substance in saying it was about an association and if you needed further reference, look at page 58. Dr Jayaram again: "air embolism". Explains difficulties with the resuscitations: he's been saying it constantly, hasn't he, that this is the concern?
HARVEY: Yes, I'm not sure that the notes capture the way things were discussed in the meeting. I -- I appreciate that these things were said but I'm not
sure it captures the full nature of the conversations that were had.
LANGDALE: It captures fully that there were concerns and suspicions when two babies had just died when this nurse had been moved to day shifts. You were looking to see, monitoring -- you had asked for the monitoring to continue, and you don't seem to reflect that that's what you had invited back in the meeting in May, and here you were in June with two dead babies on the unit. Wednesday, 6 July, if we can go to the next document, please, INQ0002682, page 3. Executive Team notes again, and here we have the Royal College Review, "IH review proposal". You had made this decision, that this would happen, hadn't you?
HARVEY: This was a decision that was reached in the end in concert with others, including the paediatricians.
LANGDALE: Mm-hm.
HARVEY: I believe there were notes from a meeting that the Executives -- I think Duncan Nichol was involved, and the paediatricians, at which it was agreed, previous comments notwithstanding, that this was an appropriate route to follow.
LANGDALE: This was where you discussed CCTV, amongst other matters; is that right?
HARVEY: Discussed?
LANGDALE: Discussed CCTV --
HARVEY: Yes.
LANGDALE: -- and having CCTV and I think it was somebody who wouldn't normally, Ms Hodkinson, going off with Tim Lister to look at CCTV proposals for the neonatal unit --
HARVEY: Yes.
LANGDALE: -- for the intensive care unit. Did that strike you as odd that you had arrived at a point where you were going to get CCTV on the unit?
HARVEY: No, because I think that simply reflected the fact that we just didn't know what was going on. I -- we know that that association was reported but, actually, because of the way the unit was set up and laid out, we actually couldn't be sure which staff were doing what and when, and I believe that's why we had a conversation about how we could best monitor the unit.
LANGDALE: You said you would get a review done within two weeks at that meeting, didn't you? The paediatricians said they wanted her off the unit and you would have to do it within a couple of weeks, is what you said?
HARVEY: We were -- I'm not sure I would have said
I would have got a college review in two weeks because that would have been optimistic. My understanding at the time was that Letby was on annual leave, which gave us some time. But I couldn't see anyway that it would be a College Review.
LANGDALE: There is another note of yours, INQ010115 [INQ0101115], page 21, 7 July: "No safeguarding issues aware of. But share press briefing and safeguarding." Presumably, you are speaking about the downgrade, are you, at this point, or what are you referring when you say "No safeguarding issues"?
HARVEY: To be honest, I'm not clear who all the attendees were at that meeting, and I -- I can't give any information with regard to that note, I don't recall that.
LANGDALE: It's your note but that doesn't ring a bell. It's the only reference we see to safeguarding issues. I haven't seen anything else that you have referred to in a note like that.
HARVEY: I -- I don't believe that that is something that I would have said in that meeting. What isn't clear is who has said that. But I -- I believe that reflects that someone in the meeting had made that comment.
LANGDALE: The external communication around the same time as that, INQ0103147, page 1, goes out; do you think that was a transparent and fair summary of the situation: "Nevertheless, we have seen in some of our most poorly babies (those with high dependency needs) an increase in neonatal mortality rates for 2015 and 2016." Was that a fair description of the babies that had died?
HARVEY: At that time, I believe that that was a reasonable description.
LANGDALE: That's what Eirian Powell had said. The doctors hadn't, had they; did you take her word for it, rather than the experienced Consultants?
HARVEY: I believe, in terms of the external communication that was the understanding at the time, that's all I could -- could say.
LANGDALE: It was Eirian Powell's belief; it was your understanding, you are saying, as a medical qualified person?
HARVEY: I was, at that time, comfortable with that communication going out.
LANGDALE: You set up subsequently, between 6 and 8 July, Silver Command, don't you? You describe that in your statement. You say: "It's difficult now to remember which reviews are incorporated as part of the Silver Command review or ongoing separately." By this stage, if we go to INQ0003174, sorry 1 and 3?
LADY JUSTICE THIRLWALL: Ms Langdale just choose a moment to stop.
MS LANGDALE: After Silver Command we will stop. Thank you. If we go to INQ0003174, page 1, there we are. So a lot of people gathered together for a morning briefing, the first page. The second page, I think there's about 36 people, and people are given different jobs and tasks, aren't they, to complete?
HARVEY: Yes.
LANGDALE: You say: "We did not agree specific Terms of Reference. They were borne out of group discussions." Who was in charge of who did what?
HARVEY: My recollection is that the idea for the Silver Command came from Stephen Cross. With regard to the allocation of roles, I cannot recall but could only imagine that that came from an executive conversation about who was best suited to which role.
LANGDALE: Sian Williamson told the Inquiry she was sent off to look at rotas, which Eirian Powell had already looked at and, when she had done so, she realised and thought that you should go to the police and that she spoke about that to Alison Kelly. I can't remember if she said you as well, Mr Harvey. But do you remember knowing or being told that Sian Williamson thought you needed to go to the police, when she had done the very job that Eirian Powell had been asked to do: she and Julie Fogarty ended up doing that job?
HARVEY: I don't recall that conversation, no.
LANGDALE: This moved into the territory of the hospital investigating the hospital and actively seeking explanations for deaths, didn't it? That is what this was all about: looking at the evidence in different directions from the unit, from the rotas and trying to piece together an explanation for the deaths?
HARVEY: It -- it is trying to find any signs of changes, of actions, of activities that might, in part or in whole, explain the change in mortality, yes.
LANGDALE: It was entirely misconceived, wasn't it?
HARVEY: I think that there was important data that came out of it. I believe that we were trying to find explanations for the increase in mortality and I believe that we were doing that with the -- the best motives and in the best way that we could.
That was also something that we envisaged feeding the data into the subsequent Royal College Review. I -- as I have probably said at least twice now, accept that in reconsidering all the events of 15, 16 and 17 -- regret that I didn't stick with my original view that we should have gone to the police.
LANGDALE: Indeed, finally, the data that you were assisted to gather, if we look at INQ0002837, page 2, you found yourself drawing together with the assistance, I think, of someone in the hospital, some kind of data analysis and, for this table, for example, what was causing the spike couldn't possibly be told by this, could it, if somebody's harming babies deliberately?
HARVEY: No, that particular graph is really a reflection of the figures that we were already aware of that had actually sparked the need for the investigation.
LANGDALE: But commenting on a steady mortality rate, as though that pointed to things in the hospital being an issue, was meaningless. The rate, if it was attributed as we now know to somebody killing babies deliberately, this data didn't assist at all, did it, that you were digging out?
HARVEY: I am -- I'm sorry, all I have got is the -- the rolling mortality data here and, as I say, that was
effectively the basis for everything else that we were doing and went on to do.
LANGDALE: Another example of this slides, INQ0002837, page 3. Has the NNU been under more pressure? You take the admissions and look at the graphs. In fact, the spike, if anything, is late 2014 and, if we contrast that graph to the actual data Dr Brearey, via BadgerNet, was able to put together, INQ0103210, page 4, you see admissions had gone down in 2015, in fact. So the concerns about acuity, activity, none of this assisted at all and it gathered a momentum, didn't it, as though it was describing a mortality rate?
HARVEY: I think in the previous graph it stated "may contribute". I don't think at any point we were saying that any one of these in isolation explained it and the figures on that table are the total admissions for a year; they are not showing the breakdown either quarterly or monthly that would actually give a reflection of intensity of work in a shorter period.
LANGDALE: In and of themselves, none of the charts you produced told you anything about the individual deaths or circumstances. They added nothing to the question you were required to investigate, which was how have these sudden and unexpected collapses happened and who is responsible, if there is a suspicion?
HARVEY: I think that that was, as is by far and away the most common situation within the NHS, an acceptance that, almost invariably, these situations are multi-factorial. There are multiple elements that contribute. At no point were we seeing -- saying that any one was the prime cause. But there was a range of issues at the same time -- whilst there had been a description of an association of one nurse with an increased number, there had been -- and a description of sudden and unexpected collapses -- there were also at that point a lot of babies who had either had postmortems which hadn't revealed anything other than natural causes or for whom it hadn't been regarded by the clinicians and/or the Coroner as sufficient that a postmortem was required. And that all served to present what was a confusing picture that we felt required clarification and this was what we were endeavouring to do.
MS LANGDALE: Thank you. I think that is a time for a break, Mr Harvey. My Lady, may I raise that, unusually at this stage, Mr Skelton will be asking questions after the break with my Lady's permission because he's unable to be here in person tomorrow to ask them. Everybody is aware of that and content with it to be taken out of turn, if my Lady is?
LADY JUSTICE THIRLWALL: Very well. Then you will continue tomorrow morning?
MS LANGDALE: Then I will continue Friday, Friday morning.
LADY JUSTICE THIRLWALL: Yes, okay. So we will take a break and we will come back at 4.10.
(3.53 pm)
(A short break)
(4.10 pm)
Questions by MR SKELTON
LADY JUSTICE THIRLWALL: Mr Skelton.
MR SKELTON: My Lady, thank you for allowing me to interpose this evening. Mr Harvey, I represent some of the families in this Inquiry, including the family of Baby A [Child A], whose Inquest I am going to ask you about first, if I may, please. I am going to just quickly resummarise the background to his Inquest because it's important that we have that settled, and you will correct me if I get any of this wrong, please. He died, as you know, on 8 June 2015 and the Coroner was informed early on, as is standard practice for an unexpected death. A Datix was completed, the next day, Dr Sara Brigham conducted an obstetric review
but didn't find anything wrong with the obstetric care. A Perinatal Mortality Meeting took place on 24 June, which recognised that a long line had been inserted and that, some time after that, the child had been apnoeic and had a cardiac arrest from which, of course, he died, but it was uncertain if there were connections between those two events. By that stage, postmortem was awaited but a preliminary report showed no macroscopic abnormality. This is very early on and, as you know, the final report wasn't available until many months later. Dr Brearey produced a short report on the child's death but didn't identify any clinical condition that had contributed to it and, of course, as you know, there was no reference to the unusual rash, which was the subject of later investigations. Dr Brearey's report is quite important because it's dated quite early on, it is 1 July but, in fact, it is part of the Coroner, a year later, I think as you are aware. The same day, you may be aware that Dr Brearey spoke to Mother A, and she was distraught, not only by the child's death but by the fact that she didn't know why he died and the doctors couldn't provide an explanation for it and, as you probably also know, there was some concern that she had a medical condition
that may have contributed to his death, which, of course, proved to be wrong but it understandably upset her. He left that possibility open at the time. She wasn't, as you know, told about the cluster of deaths that had occurred, two other children around that period of time, and she wasn't told about the rash. The postmortem then occurs many months later in -- it was conducted, in fact, sorry, in June but not reported on until December, and the cause of death was unascertained. All of that, I think, is uncontroversial and all of that, I think, is squarely within your knowledge, correct?
HARVEY: Yes.
SKELTON: After the deaths of the two Triplets, there are a series of meetings, which I will come back to, and Ms Langdale has also asked you about them to some extent, on 29 and 30 June. There is also an action planning meeting, which I don't think you did attend but that's just within the neonatal unit and it involved HR and the nursing staff, in which [Child A]'s Inquest was mentioned; were you aware of that quite early on?
HARVEY: I wasn't, no.
SKELTON: You were taken by Ms Langdale to a note which recorded that by 3 August, so five weeks or so after you had met the Consultants for the meetings you have
discussed, a decision was made that you and Alison Kelly would review the statements ahead of the Inquest, correct?
HARVEY: That is what the notes stated, yes.
SKELTON: Now, as I understand your evidence in your statement, you say: "I would usually be informed about upcoming Inquests by Stephen Cross but would rarely have any direct involvement." So this was an unusual form of involvement?
HARVEY: It was, yes.
SKELTON: Can I just put two possible explanations to you, and I would like to understand if one is correct or there is another explanation. One is that you wanted to ensure that the statements that were produced for Mr Rheinberg were open and transparent about the concerns that were going on in the hospital about the child's death, which, by that stage, were squarely involving the fact that he may have been deliberately killed? (2) is you wanted the opposite of that, you wanted to stop that information from getting to the Coroner so that the Inquest proceeded on an incomplete basis. Can you identify which one of those it was or was there an alternative explanation?
HARVEY: I can't recall seeing those statements but I could absolutely refute any allegation that we would deliberately hide any information from the Coroner or suggest to others that they should not give full and frank evidence to the Coroner.
SKELTON: Well, what is your explanation then for reviewing the statements?
HARVEY: I can only imagine that, for some reason, Mr Cross felt that he needed us to -- to review them. I -- without recalling exactly what was in those statements, I can't say. I just cannot recall seeing those statements and, until the Inquiry made those notes available, I wasn't even aware that those statements were supposed to be made available to us.
SKELTON: Well, without going to all the statements, just taking the two statements from Dr Saladi and Dr Jayaram, neither of them mention the suspicions that they had previously raised to you in June about Baby A [Child A]'s death, neither of them mention that. They are straightforward Inquest statements which factually go through their involvement with the child's care and his unfortunate demise. So the obvious concern would be that you were aware of those statements and you were aware that they were incomplete and therefore that the Coroner was going to be misled?
HARVEY: I don't recall being aware of those
statements. I certainly didn't give any advice with regard to amendment or altering of any statements that were to go to the Coroner, nor did I suggest to any party that their statement should be altered.
SKELTON: Can I ask just to have on screen INQ0052593, please. Now, these are some emails from Josh Swash, who I think you know, is that right, from the Trust?
HARVEY: I think we were involved in meetings together, yes.
SKELTON: He's emailing you on 27 September, so shortly before the Inquest, saying: "Stephen Cross has asked me to forward this email to you which I have today sent to counsel regarding the above inquest and you will note that the nurse has recently been moved out of the neonatal unit was involved in the care of baby [Child A]. You will also note that Stephen is going to speak with counsel about disclosure to the Coroner on this matter. We will keep you informed of any developments." Why was Mr Swash, who is from the Legal Services Department, emailing you about Lucy Letby and [Child A]?
HARVEY: I could only imagine that it was because he had been instructed to by Stephen Cross.
SKELTON: Yes. Well, that's the, as it were, managerial reason why he might have done it. But, substantively,
why did he do it?
HARVEY: From what I can see, and as I read it, it's for information, in that he is telling me that Stephen is speaking with counsel about disclosure and that they would keep me informed of any developments. There isn't anything within that that suggests that they actually wanted me to undertake any action.
SKELTON: Why do you need to know this information though?
HARVEY: To be honest, I don't recall seeing this email and why they felt the need for me to be informed, I am not clear. I don't recall ever having a conversation with Stephen Cross about any detail with regard to the Inquest and, I'm sorry but, I -- I am unable to answer that question in detail.
SKELTON: There is a pre-Inquest meeting with counsel and then with some of the witnesses on 8 September 2016, at which Mr Swash is present, it is INQ0108406. If we go to the third page, please. You have seen this, I think, Mr Harvey in preparation for this evidence, haven't you? So just the top section. It appears that at the meeting -- and you can infer this from Mr Swash's correspondence that, before the substantive meeting with the doctors, the witnesses, Mr Swash had a conversation with Mr Browne, counsel,
who's giving evidence next week, about Lucy Letby, and the question posed there is: "Was nurse involved in [Child A]'s case?" Also why [Child A]'s death fits into the sequence. Then there is a question posed, "Sequence?", and it's to do with "Nurse" underneath, then "L", who I think must be Mr Browne, that is Louis Browne: "If yes, disclose to family, plus spike in deaths, not just nurse, equals disclosure." So it appears from that that Mr Browne, counsel, was being told about the association with the nurse, potentially in respect of [Child A] and had advised, if there was an association that needed to be checked, it needed to be disclosed to his family and, likewise, in respect of the spike in deaths and not just in respect of the nurse, that needed to be disclosed to the family as well. Does that make sense to you from that note?
HARVEY: From that note, yes.
SKELTON: Is that something you would have been happy to have been disclosed to the family?
HARVEY: It is something that would have been appropriate to be disclosed to the family, yes.
SKELTON: So your evidence today is that would you not have encouraged that to have been suppressed, this information: you would have been happy for the family to know that there had been a potential association with a single nurse and the child's death?
HARVEY: I think that, if that was the advice that was coming, if that was from counsel, it would be difficult to disagree with that advice.
SKELTON: If we go down to page 6, please, this is a sort of follow up note that Mr Swash makes. Sorry, page 7, I'm sorry, the next page. There we see a large sort of arrow, and it says: "Check through medical notes re was nurse involved in [case], Lucy Letby."
LADY JUSTICE THIRLWALL: Is it "case" or "care"?
MR SKELTON: "Care", I'm sorry, my Lady. "Care", it does say "care": "Plus SBC to feedback re review from neonates." Then in red, with another arrow from Lucy Letby, someone has obviously checked, it may be Mr Swash himself, "Yes, nursing notes", and there are two episodes of where she appears to be involved. So, on the face of it, some research has been done, a check's been made, Lucy Letby has been confirmed as a nurse involved with [Child A]'s care, and that's been noted in this record. Now, as far as [Child A]'s family are concerned, this information was never passed to them. That really
shouldn't have happened, should it?
HARVEY: Based on the advice of counsel and the duty of candour, no, that shouldn't have happened.
SKELTON: Thank you. So far as your involvement is concerned, is it right that you had any contact with Mr Browne during this period of time, directly?
HARVEY: I don't recall having any contact with Mr Browne.
SKELTON: Did you have any contact with Mr Cross about it, in respect of advising about whether to disclose to the family Lucy Letby's involvement in Baby A [Child A]'s care?
HARVEY: I didn't have any contact with Mr Cross with regard to a conversation about disclosure.
SKELTON: So your evidence today is you had no involvement with the decision not to disclose this information to [Child A]'s family?
HARVEY: I have absolutely no recollection of that sort of conversation, no.
SKELTON: Is it your evidence that you had no involvement in the decision not to disclose those pieces of information to Mr Rheinberg?
HARVEY: I do not recall any conversation with regard to the disclosure with Mr Rheinberg either, no.
SKELTON: Or any instruction, internally, to anyone at the Trust not to disclose that information to either the
Coroner or the family?
HARVEY: I -- I would not have given that sort of specific instruction not to disclose or to obscure evidence.
SKELTON: Did you have any involvement in assisting the evidence or the preparation for the Consultants giving evidence to the Inquest?
HARVEY: I don't recall assisting them in the preparation, no.
SKELTON: Did you speak to Mr Cross about the preparation for the Inquest and the concern that the two Consultants, Dr Jayaram or Dr Saladi might tell the Coroner that they were concerned Lucy Letby had murdered [Child A]?
HARVEY: No.
SKELTON: You are aware that they both gave evidence and, when Dr Jayaram was asked directly by the Coroner what he thought the cause of death was, he was unable to give an explanation. He alluded cryptically to the fact that there were concerns but he did not say, in terms, that he suspected [Child A] had been killed; are you aware of that?
HARVEY: I am aware that was his evidence, yes.
SKELTON: You are aware that he accepted that was wrong and he should have said that?
HARVEY: I understand that's what he said, yes.
SKELTON: Well, do you accept that?
HARVEY: Sorry?
SKELTON: Do you accept that it was wrong?
HARVEY: Yes.
SKELTON: This is a catastrophic failure to be open and transparent with a judicial process, isn't it, a process which is designed to find out if people have been improperly killed or treated or murdered?
HARVEY: It's to give incomplete or false evidence under oath, yes.
SKELTON: Well, not just that. This child had died in your hospital?
HARVEY: Yes.
SKELTON: The Consultants who treated the child thought he had been murdered, at least that was a very real possibility in their mind, they gave in evidence a courtroom which did not explain that to the Coroner and the Inquest concluded without ascertaining the child's death?
HARVEY: That would be inappropriate.
SKELTON: You were aware of that?
HARVEY: I was aware of?
SKELTON: The conclusion.
HARVEY: I was, in terms of unascertained, yes.
SKELTON: Well, if you know that the two doctors who gave evidence thought the child had been murdered and you are aware that the Coronial process proceeds to its fruition, concludes, can't be re-opened without the court's approval, and the conclusion was that the death was unascertained, then wasn't it your duty to correct the Coroner?
HARVEY: I don't -- I wasn't aware that it was their view that the baby had been murdered.
SKELTON: It wasn't your view; you weren't aware of that?
HARVEY: No.
SKELTON: I will come back to that. So, as far as you were concerned, you viewed the Coronial process as having been appropriately concluded and, although you were aware that Lucy Letby was suspected of having murdered patients, including [Child A], you didn't alert the Coroner to that fact?
HARVEY: I trusted my colleagues. I -- I incorrectly assumed, based on this evidence, that the appropriate evidence had been given and had been considered. I do not recall having full access or any access to the statements and reviewing them. As I have already said, I don't recall the contact from Mr Swash or the comments about reviewing the statements or indeed reviewing them.
I accept that we failed in the duty of contributing to the Inquiry. But I did nothing to obscure or withhold any evidence.
SKELTON: Well, you met the Coroner, didn't you, I think in 2017, so 8 February, you and Mr Cross went to see him?
HARVEY: Yes.
SKELTON: The note that Mr Cross made says that you said to the Coroner: "No theme has emerged from the in-depth investigations." Do you recall saying that? You had conducted by this stage a series of investigations, I will come back to exactly what they were, but of course it's the Royal College, Dr Hawdon, Dr McPartland --
HARVEY: Yes.
SKELTON: -- and no theme had emerged?
HARVEY: We said -- I said that but in -- I am trying to remember which -- in one of the meetings that we had with Mr Rheinberg and Mr Moore, we passed over a letter that we had had from, or Tony Chambers had had, from the paediatricians requesting that we discuss with the Coroner reopening or further investigation and, as part of the conversation around passing that letter over and
by way of explaining why the paediatricians had written that letter and why we were passing it on to the Coroner, we did inform him that one of their concerns leading to this was an association with a member of staff.
SKELTON: Well, Mr Harvey there is no note that Mr Rheinberg has made, no note that Mr Moore has made, no note that you have made, no note that Mr Cross has made that that information was ever passed to either Mr Moore or Mr Rheinberg?
HARVEY: Well, I am confident that that was because the nature of the letter that we passed across would have been inexplicable without the covering explanation.
SKELTON: Well, the letter says the reports -- they say the reports they have received have not reassured them that the deaths and collapses are explicable by natural causes, so you may infer from that there is still some suspicion about an unnatural cause but they certainly don't say, "We are concerned that a member of staff has killed these babies".
HARVEY: No, they don't but, because of that and by way of explanation of that concern, I recall that Mr Rheinberg and Mr Moore were informed that there was that concern about an association about a member of staff.
SKELTON: Which meeting and who said it?
HARVEY: I am unable to -- it was the meeting where we met with them to give them the letter.
SKELTON: Well, you met them again, I think, on 15 February and, in your statement, you describe discussing the increased mortality rates and the fact that the paediatricians had raised concerns, this is paragraph 651. But that isn't in Mr Cross' note and it isn't in Mr Rheinberg's note. I think you will understand, having prepared for this evidence today, that Mr Rheinberg denies being given that information in the most strong terms. So I am going to put to you that you never said it.
HARVEY: Well, I would suggest that I did because the letter would require that explanation to go with it. In addition, I think the timely subsequent meeting notes where I am reporting to colleagues indicates, based on my recollection at that time, that I had, and I am confident that I would have given him all that information because we were at that level of concern, with the paediatricians having presented and written that letter, that we needed to raise the basis for it.
SKELTON: But you are also aware that the Coroner is a judicial officer and they are intricately connected to the criminal justice systems as well as their own Coronial system?
HARVEY: Yes.
SKELTON: If a Coroner is told that a paediatrician suspects a child has been killed or, in this case, a series of children have been killed, they must act; you are aware of that: they can't sit on that information, they have to act. They have to trigger a whole series of investigative processes. If they are investigating the child's death, they need to do so with that information in mind. If they have already investigated, they need to inform the police and, in any event, some contact with the police needed to be had because a crime is suspected; you are aware of that, aren't you?
HARVEY: I am, and I can't explain why, if that is the case, Mr Rheinberg didn't trigger it. But I am confident that I informed, along with that letter, that the paediatricians had reported an association with a member of the nursing staff? You certainly should have given him that information, shouldn't you?
HARVEY: Yes.
SKELTON: Can I go back to June 2016, please. You had the meeting on the 29th with Alison Kelly, Tony Chambers and the Consultants, where Dr Jayaram and Dr Saladi were present, and Dr Jayaram had raised concerns about Letby
always being present, in charge, the babies being stable and deteriorating and they didn't respond to resuscitation as they should. So all information which for them were red flags about something unusual going on medically?
HARVEY: Yes.
SKELTON: Dr Brearey said there was more than just an association with the nurse and then Dr Jayaram actually speculated, as Ms Langdale put to you earlier, how the mechanism of death may have occurred with cannulas and an air embolism; do you recall that?
HARVEY: I remember seeing the documents, yes.
SKELTON: It's in the notes?
HARVEY: Yes.
SKELTON: Dr Saladi talked at the same time, in that same conversation -- I can take you to the page if you want to look at the notes again -- about the Twins, [Child A] and [Child B] specifically, and mentioning one of them being mottled and then both of them having mottling, so realising more was going on; do you remember that?
HARVEY: I don't recall that but I would accept that that was said.
SKELTON: You said before about not knowing about [Child A] but there's a discussion with Dr Jayaram
speculating about air embolism. There is a discussion with Dr Saladi about mottling and rashes with both of the Twins. When it came to thinking about the Inquest of [Child A] did you remember that information, that conversation you had just a few weeks before?
HARVEY: No.
SKELTON: You should have done, shouldn't you, because that is information that's relevant to their deaths -- sorry [Child A]'s death?
HARVEY: Potentially, yes. I would simply say that this was, as you would imagine, a long and intensive meeting and, if I failed to recall all the detail, then I apologise.
SKELTON: The next day you had another meeting with some of the doctors again and this time we know Jim McCormack was there and others, and Ravi Jayaram again, and again he mentions air embolism, as you know, in that meeting on the 30th, and talks about the concern about the member of staff, in other words Lucy Letby, resuscitation problems again, happening once or twice but it was happening too many times. Then he says it causes suspicion. So it was very much in play at that meeting, wasn't it, and it's a long meeting, with lots of people wading in with their opinions but it is clear from their perspective they're talking about "suspicion"
about Lucy Letby: the word is used?
HARVEY: Yes.
SKELTON: You gradually coalesce on a plan, and can I just put to you what the thinking was and see if you agree? If necessary, I can go to the notes because Ms Hodkinson's note is very detailed about this. Mr Chambers considered it to be a hypothesis that the children had been killed by Lucy Letby and he wanted to test that hypothesis, and the options he put were "null" or nothing, "call the police" or "undertake some form of review"; does that make sense to you?
HARVEY: Yes.
SKELTON: I think what you opted for was the review option, which, in fact, you had already put in train by that point?
HARVEY: Yes.
SKELTON: Because you had contacted with Sue Eardley by email and I think you had spoken to her on the telephone?
HARVEY: I had had a provisional to assess the feasibility, yes, because -- yes, because if the College had said, "Well, that isn't reasonable, it's not appropriate", then that wasn't going to be an option.
SKELTON: Well, I think you had emailed her, hadn't you, and then she had responded and then you had a phone call with her?
HARVEY: Yes.
SKELTON: I don't think there are notes of that phone call, are there?
HARVEY: No.
SKELTON: But what we understand is that -- we can infer it was the phone call at which you did mention what needed to be done, a review of the unit, but you also mentioned the concerns about the nurse; is that correct?
HARVEY: I, in one of my phone calls with Sue Eardley, mention the concerns, yes.
SKELTON: What exactly did you say?
HARVEY: I would have said that the paediatricians had raised concerns about an association of one member of staff. But that there was no other supportive evidence to go with that; that her managers and colleagues felt that it was related to her increased level of duty and that she was qualified in specialty. I probably wouldn't have been any more specific than that.
SKELTON: So, in your head, when you were thinking about the Consultants' suspicions were you treating it as a hypothesis that needed to be tested?
HARVEY: I was keen that we could establish what was -- what was the cause or causes of the increased mortality. That based on what are the usual, what are the common,
but not ruling out more extreme, such as gross negligence.
SKELTON: Do you recognise that it wasn't just a hypothesis, it was a risk; did you conceptualise it as such and recognise that?
HARVEY: My understanding was that Letby was on leave and, from that perspective, that particular aspect of a potential risk had been removed.
SKELTON: But there was, of course, the risk she would return to the unit, or somewhere else in the Trust, or seek employment elsewhere, over which you, of course, had no control; that was a risk wasn't it?
HARVEY: At that time, that might have been a risk but I think, as the notes of the meeting indicate, it was to give us time really to assess what the situation was and to decide and of course, as we know, she never did return to the unit.
SKELTON: Just looking at the notes of that meeting, do you now see how an intervention was needed, a clear-eyed intervention was needed that, if you are in a room with some paediatricians discussing whether one of their members of staff has killed their babies, and speculating about Beverley Allitt, Harold Shipman, mechanisms of murder about which they have no professional expertise, that you need to call the
police. The only option at that point is at least to get the police involved, whether it proceeds to an investigation or not, they needed to be informed as soon as you are discussing murder: it's completely outside of your expertise?
HARVEY: I think, as I gave in evidence earlier on today, one of my regrets is that having, along with Alison Kelly, come to the view that we should contact the police in June/July, that -- that we didn't. As I also stated, I am not convinced that the police would, based on the conversations we had with them nearly a year later, have undertaken an investigation, but I fully accept that they would have had oversight and they would have been able to advise with regard to the nature of the reviews and have stepped in at the first sign of anything untoward.
SKELTON: And protected patients because they would -- if the whole process, the cascade had been triggered, Lucy Letby wouldn't have just been on leave, she would have been suspended, without at that point blame, but while an investigation took place, the LADO would have been spoken to, and decisions would have been made about the appropriate type of investigation that was required to exclude the possibility of deliberate harm?
HARVEY: Potentially, yes.
SKELTON: You presumably had no experience of patients being deliberately harmed by members of staff before then?
HARVEY: Before this, no.
SKELTON: Just some obvious propositions: patients in hospital are vulnerable; they spend periods of time asleep or comatose; medical staff have access to their bodies, which, of course, doesn't occur in the ordinary community; there are cannulas inserted, injections given, drugs given, and so on; staff have access to lethal drugs. All of these circumstances make it relatively easy for healthcare staff to harm patients and relatively difficult for healthcare staff to be detected when they do so. Does that all make sense to you?
HARVEY: It does. But -- but I feel that I have to point out that, actually, we had three opportunities that were missed where there was clear evidence of harm, that we weren't fortunate enough to have been informed about.
SKELTON: Yes, and you are talking about the insulin results, for example, in [Child K] with Dr Jayaram?
HARVEY: I am talking about [Child F], [Child K] and [Child L].
SKELTON: Yes. I am sure that either Ms Langdale or your own counsel will ask you about that but I just want it focus on those basic principles. It's relatively easy to harm a patient given their vulnerabilities and given the access to the types of drawings that you have in hospital and it can be quite difficult to detect that because a drug overdose and injection can occur innocently, routinely?
HARVEY: I'm not sure about routinely, but yes. But I would simply say that we missed those or those opportunities were missed. We had them.
SKELTON: Are you aware of how murders are investigated?
HARVEY: In real life, no.
SKELTON: Do you know what a forensic pathologist does?
HARVEY: I can surmise, yes.
SKELTON: Well, they are qualified as pathologist but they have got a specialist skill in investigating and excluding crimes, and the reason it is a specialist area is because it's difficult to identify crimes and there are particular types of investigations that are done, particular checks on the body, particular investigations which they conduct, which ordinary pathologists don't; you are aware of that?
HARVEY: Yes.
SKELTON: Are you also aware that, in order to do those investigations, they require a history, they require
information. In other words, they are given circumstances of how the body was found, who the person was with, what might be a possible cause of the criminal activity: that makes obvious sense you to?
HARVEY: Yes.
SKELTON: Dr McCormack actually mentioned forensic pathology in the meeting on the 30th because he was concerned that the Royal College, which you were talking about, weren't going to be able to do the kind of investigation that was required. Again, looking back, do you recognise that this required forensic pathology in order to rule out a crime?
HARVEY: In retrospect, yes, that was an opportunity missed.
SKELTON: Just to be clear: the Royal College were instructed and they did a service review. That, in fact, not only didn't look at the medical notes but it didn't examine whether a potential crime had taken place, did it?
HARVEY: I -- in my statement, I think I have covered this, insofar as, in commissioning the review, I got the Terms of Reference or the Terms of Reference were incomplete and I -- I got that wrong. It should have been specific with regard to a Casenote Review. I anticipated that the College would
be reviewing the individual cases. Given that they were being commissioned on the basis that we were concerned about an increased mortality, I found it difficult to imagine that they wouldn't be reviewing those cases as the basis of their review, and we had prepared all the documentation for them to do that to be told, "Well, no actually that's not part of it". So that the review that they did, no, wasn't in a position to fulfil that brief, hence the subsequent Jane Hawdon review.
SKELTON: Yes, so to be clear, it wasn't in a position to understand why the children had died because it wasn't incorporating a Casenote Review --
HARVEY: Yes.
SKELTON: -- and it certainly wasn't in a position to understand if they died as a result of a crime because that is a step even further than a standard Casenote Review, that requires a forensic consideration?
HARVEY: Potentially, I would say.
SKELTON: Not potentially, that is exactly what is required?
HARVEY: Well, I suppose it depends on the mechanism of assault or death and the obvious example would be for collapse in the case of [Child F]. The results were in the notes. You know, we would have known that there was
insulin, so that there was certain potential.
SKELTON: They might have spotted something untoward that could have been a crime, it is fair to say, but the Royal College of Paediatrics and Child Health don't investigate crimes, do they?
HARVEY: No.
SKELTON: No.
HARVEY: But on the basis that I had alerted them to a concern about one member of staff and the association with her and the review going ahead, there seemed to be an acceptance that that was a reasonable path to follow, and I would point out that the paediatricians also, I think, reviewed the Terms of Reference that we had drawn up and felt that they were reasonable and appropriate for what we were doing in that circumstance.
SKELTON: Well, the Terms of Reference looked like they considered everything.
HARVEY: Well, that that was the intention, yes.
SKELTON: But, in fact, it is not a Casenote Review and they didn't consider criminal activity, as you have accepted?
HARVEY: It, it -- it didn't end up as a Casenote Review, although I imagine that it was going to be because I couldn't foresee how they could fulfil their brief, based on the premise, without doing that.
SKELTON: But just to be clear, the report that was produced as a result of that review could not be relied on to exclude the possibility that the children had been harmed?
HARVEY: No.
SKELTON: The same really must apply to Dr Hawdon's examination and Dr McPartland's examination, because first of all, Dr Hawdon, in respect of five of the deaths -- or four, and I am sure you will be asked about why that may have changed -- couldn't find an explanation. So, by definition, she hadn't found a crime or excluded a crime. She was in the same position, really, as [Child A]'s pathologist was: it was unascertained. So that had not excluded Lucy Letby harming them?
HARVEY: No.
SKELTON: Dr McPartland was not a forensic pathologist, so she, by definition, couldn't investigate a crime and exclude it definitively, although, as you have said, she might have found some evidence that could incriminate?
HARVEY: Yes, and, as an example, I had a conversation -- or exchanged emails or had a conversation as well with regard to the possibility of air embolus, that having been raised, and was informed by her that she would fully expect that their postmortem
would have picked up the presence of an air embolus.
SKELTON: Yes, but to be absolutely clear, she was not a forensic pathologist --
HARVEY: No.
SKELTON: -- and she was not briefed to investigate criminal activity?
HARVEY: No, she was a specialist paediatric neonatal pathologist.
SKELTON: So as all these investigations are being pursued throughout the course of 2016 and into 2017, the upshot is that none of them, in fact, exclude the possibility that had been raised on 29 and 30 June 2016 that Lucy Letby harmed the children: none of them?
HARVEY: No, which is why we ended up subsequently going to the police.
SKELTON: Well, I will come back to that. You presented a paper to the board on 10 January 2017, INQ0003518, it'll come up; do you remember this?
HARVEY: Yes.
SKELTON: You discussed the Royal College Review but you don't make clear that it hadn't addressed the Consultants' concerns, correct?
HARVEY: Correct.
SKELTON: You also, without naming them, I think, mentioned Dr Hawdon and Dr McPartland because they are
the secondary reviewers, one doing a case review, the second with specialist expertise on pathology and, again, of course, you don't mention and couldn't have mentioned that they hadn't excluded a crime because they hadn't; is that correct?
HARVEY: Correct.
SKELTON: During this meeting -- and I can take you to the notes of the substantive meeting, I think you are familiar with them but, for reference, it's INQ0003237 -- Mr Chambers repeatedly dismissed the concerns of the Consultants as being unsubstantiated. Now, the reality was that they had not, in fact, been directly investigated and excluded as possibilities. You have already accepted that?
HARVEY: They had been excluded to the extent of the reviews that we had carried out. I will accept that not to the level of a forensic, yes.
SKELTON: Well, the reviews had not looked for a crime and they had not excluded a crime, had they?
HARVEY: The reviews hadn't been specifically commissioned to look for a crime. But I suppose we had anticipated that, in the event that there had been a malicious act, that there would have been evidence found in the course of those reviews.
SKELTON: Well, you have a scientific background. If
you have a hypothesis that needs testing, you have to direct your research to that hypothesis. The hypothesis was: Lucy Letby has murdered or killed these children through mechanism unknown, investigate it, please. Royal College, Dr Hawdon, Dr McPartland, or some other person, needed to actually investigate that directly, didn't they?
HARVEY: I don't think the time that these were commissioned we were in a position to say that this is suspected murder.
SKELTON: Well, you were because that was actually mentioned explicitly -- the word "murder" is never used but the suspicion of deliberate harm is absolutely clear from the notes that you had been taken to on the 29th and the 30th?
HARVEY: And it was the anticipation that there would have been findings within the definitive note reviews to highlight.
SKELTON: Well, they may have found something, as you say. In fact, if they had looked at the insulin results for particular children on a Casenote Review, it might have been possible, for those two children, a Casenote Review might have found that abnormal result; that is fair, isn't it?
HARVEY: Well, I would suggest that that wasn't a might, that would have been a definite.
SKELTON: That they would have found it --
HARVEY: Yes.
SKELTON: -- if a Casenote Review had been undertaken?
HARVEY: Yes, because having -- as part of the preparation for this Inquiry, I have had the opportunity to -- to look at the case notes myself and those results are clearly documented actually within the written note. They are not, as sometimes happens, within the results section, where things can fall out.
SKELTON: But the reality is that the investigations that you commissioned, as you have accepted, although they might have found evidence to support criminal activity were not designed and aimed to find it?
HARVEY: I would accept that.
SKELTON: So when you attend the board and present your paper, you are reassuring them that proper investigations have taken place and that, as a result of those investigations, Mr Chambers is allowed to say to the board, in front of you, without correction, that the allegations against the nurse are unsubstantiated. And you would go even further, collectively as an Executive, and advise them that Lucy Letby should be supported in her return to the unit. That's completely unacceptable, isn't it?
HARVEY: I would only say that that was the view based on the evidence that we had at that time.
SKELTON: It wasn't --
HARVEY: -- with -- on retrospect, yes. And as, you know, I -- I have now repeatedly said I regret that we didn't contact the police in June/July 2016.
SKELTON: Just focusing on that. It doesn't require retrospect. You were in a meeting, advising the most senior people in your Trust to support you putting someone back in the unit who had not been investigated for potential crimes. That is an extraordinary failure on your part, do you accept that?
HARVEY: I believe that I was making these statements in good faith, based on the evidence that I had available to me at that time.
SKELTON: What evidence did you have that Lucy Letby had not killed those children?
HARVEY: It was the fact that nothing had been specifically raised in the course of the College review, Dr Hawdon's review, in discussing with Dr McPartland, with regard to the previous postmortems, that some of the babies had had.
SKELTON: Well --
HARVEY: I accept, with retrospect, that that is
incomprehensive. That is with the benefit of knowing how things came out. But this was a series of investigations, a series of reviews and a statement that was made in good faith at that time.
SKELTON: Mr Harvey, I'm struggling to understand the logic of your answers. You have accepted, as I have taken you through them, that the Royal College Review, Dr Hawdon's review, Dr McPartland's review did not exclude a crime on the part of -- crimes committed on the part of Lucy Letby. In this meeting it is being presented that there is no substantive evidence to that allegation and it is being recommended that she go back to the unit on that basis. That was wrong as an assertion and it was dangerous and irresponsible. The logic of that is impossible to disagree with.
HARVEY: I'm sorry. I'm sorry --
SKELTON: Do you want me to take you through it again?
HARVEY: Well, no. I'm sorry, I apologise. I didn't hear a question.
SKELTON: You had investigated, using the Royal College, Dr Hawdon, Dr McPartland whether or not there may have been some medical cause for these children's deaths. They had not identified a definitive theme, but none of
those investigations, as you have accepted, excluded the possibility that Lucy Letby had killed the children; you've accepted that already.
HARVEY: I accept that they didn't go to the level of a forensic investigation and, in hindsight, that was incorrect.
SKELTON: They did not exclude a crime.
HARVEY: They certainly didn't highlight one. I can't say that they excluded.
SKELTON: They did not exclude a crime, did they? Any of those reviews did not exclude the possibility the children had been killed deliberately?
HARVEY: Nor did they actually bring anything out to suggest that there had been any malicious act in, in any of those.
SKELTON: Well, in those circumstances, finally, I put to you that it was irresponsible and dangerous to return Lucy Letby to the unit because you could not be confident, as the Medical Director of the hospital responsible for patient safety at the Countess of Chester, that Lucy Letby would not harm children again?
HARVEY: I would have to accept that, with retrospect, yes, it would have been a risk -- well, more than a risk for her to have gone back on to the unit.
SKELTON: One which should never have been countenanced?
HARVEY: Looking at this no.
MR SKELTON: Thank you. Thank you, my Lady.
LADY JUSTICE THIRLWALL: Thank you very much, Mr Skelton. Mr Harvey, we are going to adjourn now until tomorrow morning at 10 o'clock.
HARVEY: Yes, my Lady.
LADY JUSTICE THIRLWALL: So 10 o'clock tomorrow.
(5.02 pm) (The Inquiry adjourned until 10.00 am, on Friday, 29 November 2024)
Monday, 25 November 2024 at 10.00 am)Witness: Ian Harvey (continued): Former Medical Director, CoCH
Questions by MS LANGDALE (continued)
LADY JUSTICE THIRLWALL: Ms Langdale.
MS LANGDALE: Mr Harvey, do you have your statement with you as well today?
HARVEY: I do, thank you.
LANGDALE: Yesterday, in answer to Mr Skelton, you accepted that the RCPCH Review didn't exclude the possibility that Letby had harmed babies; you remember that?
HARVEY: I do.
LANGDALE: That was made clear to you at the time, wasn't it: that it wasn't going to deal with that question about Letby. Shall I take you to the interview you had with the reviewers at INQ0014604, page 1. We see here the note of your interview with the reviewers and one of the reviewers said at the beginning: "We may not be able to explore the detail of the deaths, the correlation of one nurse." If we go to page 6 -- I don't think that's the right page. It's the one that says "not sure if the review will give you the answers you are's looking for".
Can we try please INQ0014605, page 6. It's got a different number, Mr Harvey, and "IC" refers to you at the top. Do you see there the reviewer is saying: "Not sure if the review will give you the answers you are looking for. Considered aborting and starting again but Terms of Reference to be important to get the background." When they said "not sure it will give you the answers you are looking for", they were clearly, in the context of what I've referred you to earlier, saying, "We can't look at the correlation of a nurse and the deaths, that's not what we do, we are doing a broader review". Do you agree that's what they were flagging up for you at an early stage?
HARVEY: I don't read that sentence as that actually being said to us because I am clear that, at no point, did the Review Team tell us that they had considered aborting the review and starting again. At no time did they explicitly or implicitly suggest that they considered aborting the review.
LANGDALE: That is what the note says, are you saying someone's written that when it's not the case, or written it later, or what's your thinking about that?
HARVEY: I'm not sure that that is a verbatim report of
what was actually said. At no --
LANGDALE: What about -- sorry.
HARVEY: At no point did any member of the College team come to either I or -- in the course of the meeting I had with Mrs Kelly and the Review Team, nor at the mopping up meeting at the end of the review with the two members of the team, I believe, and Tony Chambers and Alison Kelly, at no point did they indicate that they had considered aborting the review.
LANGDALE: Well, let's look at the first comment then, INQ0014604, page 1, do you dispute this was said: "We may not be able to explore the detail of the deaths, correlation of one nurse, paediatricians see as elephant in the room." Do you dispute that they said "we may not be able to explore the detail, we may not be able to examine the deaths and explore that level of detail"? It may not have been expressed as clearly as you would have liked it but, if you were listening, that's what they said; do you agree?
HARVEY: I understand that they told us that they may not be able to do a detailed case report, as I believe I said in evidence yesterday. That was unexpected. I appreciate that the Casenote Review wasn't explicit in the Terms of Reference, but I wrongly, as it turns out,
assumed that, in commissioning them to review on the back of concerns about increased mortality, it was inherent in that review that they would actually be reviewing the cases that were the cause of the need for the review.
LANGDALE: Sue Eardley gave evidence to say that she wrote notes pretty verbatim, and this isn't talking about case notes, it says in terms, "not be able to explore the detail of the deaths". The paediatricians had raised suspicions about the causes of the deaths. You will have appreciated straightaway that they were not going to tell you what the causes of the deaths were or the detail of the individual deaths; that's what that says?
HARVEY: They were indicating that they -- and actually the statement says "may not be able", it wasn't definitive. But, on the basis of the conversations that we had with the College, the feeling was that it was still going to be a worthwhile exercise. It was an opportunity for them to have conversations with all the members of staff including the paediatricians.
LANGDALE: The Review Team might have thought it was a worthwhile exercise to have a broader canvas but you are spending money and taking time on a review that isn't going to answer the question that you have got in front of you, that the paediatricians have raised?
HARVEY: I believe that potentially, at that time, being faced with an increased mortality of unknown origin, it was perfectly reasonable to explore with neonatal experts, both medical and nursing, the full range of potential causes, and I think that was reflected in the Terms of Reference.
LANGDALE: You referred then in your answer to the increase in mortality. Can we please have INQ0010256, page 1. It's the Terms of Reference for this review and, again, we see at bullet point 4 "apparent increase" in mortality being described. It was an increase in mortality; why did you say "apparent increase" in the Terms of Reference?
HARVEY: "Apparent", as I think I gave in evidence yesterday, was used in terms of, whilst I accepted that the increase -- there was an absolute increase in the number, that we had not subjected it to statistical analysis and, whilst appreciating the significance of each individual death, I described it as "apparent" because it was not proven to be statistically significant. There was no other significance to the use of that word.
LANGDALE: You were steering a wide-ranging review, weren't you, in the knowledge that it was never going to
be able to exclude the possibility that Letby had harmed babies?
HARVEY: I was commissioning this review on the basis that we had an unexplained increase in mortality. I believed it would be an opportunity for the paediatricians to discuss. I, at the outset, anticipated and we had prepared all the documentation for the team to review the individual cases but, having initiated the process, I felt that it was still appropriate and valid to fully explore the full range of potential contributory factors.
LANGDALE: It wasn't the full range because they couldn't explore the one that the paediatricians had raised: whether a nurse was responsible for causing the deaths. That was the very option they could not review?
HARVEY: I was not under that impression at the time that this was commissioned and at the time we prepared for the report.
LANGDALE: Was that because you didn't listen to what was being said to you?
HARVEY: I don't believe so, no.
LANGDALE: You instructed them on 7 July 2016, you received a draft report 18 October 2016 and a final report 28 November 2016. This was a long period of time, this review?
HARVEY: It was.
LANGDALE: During that time, there was no proper investigation taking place into Letby and her role in respect of the deaths, was there?
HARVEY: We were following the process that had been initiated with the College. We were following the process that they had recommended in terms of a further Casenote Review, and I would have to say that the basis of the College report, after they had consulted with the paediatricians, did nothing to raise the level of concern because of the terms that they used in their report.
LANGDALE: Let's look at how you managed the receipt of the report. Doctors Brearey and Jayaram were given one hour to read the draft report in November 2016, weren't they?
HARVEY: I don't believe that that time limit was imposed. I gave Dr -- and this was on the College's advice, that it should be shared with some of the senior members but that was purely for a fact checking and confirmation, so --
LANGDALE: They could only check facts if they saw the whole report and there were parts of it that they weren't shown, weren't there?
HARVEY: On -- the implication from the advice from the
College was that the "green text", as they described it, was confidential and not for wider sharing.
LANGDALE: Well, let's put the green text, so people know what you are saying here. INQ0005273, pages 8 and 9. I take the point in your statement, Mr Harvey, you don't like the use of the word "redacted". What you are saying there is the green text was something they had highlighted as different and you took that out, that's why you took it out before people saw the report?
HARVEY: On the College advice, yes.
LANGDALE: You had commissioned the report though, you could share it with who you wanted to, they couldn't tell you what to do about that, could they: you are the person paying for it, you are the person who knows who needs to see what within your organisation?
HARVEY: That -- that is true but, having commissioned that report from a Royal College, having had a team that was a team of experts and that team included a lay member, who was, albeit inactive, but a barrister.
LANGDALE: So what did you draw from the fact that she was described as a barrister, albeit a non-practising barrister?
HARVEY: From that and her -- the description of her activities with the NMC and NCAS, I took it that what was being presented was reasonable and appropriate advice and, in being advised that the green text was not for wider sharing, that there was a basis for that that I should listen to.
LANGDALE: So you took it as legal advice, effectively?
HARVEY: No, I don't -- I didn't take it as legal advice but I took it as senior and knowledgeable advice.
LANGDALE: Did you go to people within your own organisation who were knowledgeable, some of your own in-house lawyers, or Mr Cross, and say, "Look, I think everyone needs to see this"?
HARVEY: I didn't put it in those terms, no. It was shared with Mr Cross.
LANGDALE: If we can see, on 3.12 -- that's the paragraph in green text -- while we are on this page and so everybody is clear, we know there was a confidential version that contained everything that we see, there was a disseminated version that removed the green text that we are going to see as we go through and then there was a published version. I think the published version was the one that went to the Families, too; is that right?
HARVEY: That that's correct.
LANGDALE: The published version had some other things taken out, such as at the top of this page: "However, in June 2016, the deaths of two of the three Triplets provoked further concerns and triggered
this review." That was taken out, wasn't it, and so was the Appendix 4, which I don't need to go to, the chronology, before it was more widely published?
HARVEY: I would have to accept what you say. I -- I cannot remember.
LANGDALE: If we go to the next page, page 10, we see the other parts that are in green. So you would agree with me, that when Drs Brearey and Jayaram saw the report, those bits had been taken out?
HARVEY: Yes.
LANGDALE: Did you see any reason at all to take those bits out from Dr Jayaram and Dr Brearey's reading: they knew all about the nurse and what was going on; it was their concerns?
HARVEY: Over and above the advice from the -- the College, no, I didn't. And I can fully appreciate how that would influence how Dr Jayaram and Dr Brearey would subsequently review the report because it obviously didn't truly reflect the conversations that they had had with the College team.
LANGDALE: Can we have a look, please, at INQ0003403, page 1, and it's the email from Ms Eardley sending the draft report. I just want to see where you say she said "Don't share the green text with the Consultants", so
have a read of that: "Please find attached the draft report for your review. It does provide some fairly strong recommendations so I would be grateful if you and (unclear) could have a first read through yourself and let me know anything that might be sensitive. Once you are happy, perhaps you can share it with a few selected people, including I would guess Ravi, Stephen and Eirian, to check for any obvious inaccuracies." Where does that say you can't share parts of the report with the Consultants?
HARVEY: It doesn't reference it in that email but I -- I recall that there was another email that made that sort of reference.
LANGDALE: So you think somewhere in all of the documents we will find an email saying that?
HARVEY: I -- I believe so.
LANGDALE: Is it what you didn't want to do: share the concerns about the nurse that they had flagged up because they flagged up an HR process was necessary immediately, didn't they?
HARVEY: No, it wasn't my deliberate intention to -- to withhold that from them.
LANGDALE: That can come down. The final report was provided on 28 November 2016. Why did it take until
February 2017 and a leak to The Sunday Times for it to finally be published?
HARVEY: To be perfectly honest, I am unable to answer that question.
LANGDALE: Sorry, "to be perfectly honest" ...?
HARVEY: I am unable to answer that question.
LANGDALE: Well, you had this report; you were keen to get it; it needed to be shared, didn't it?
HARVEY: It did.
LANGDALE: So why didn't you?
HARVEY: Sorry, without reviewing the documentation, I -- I -- I can't answer that.
LANGDALE: Well, there's no documents --
HARVEY: I can't recall.
LANGDALE: -- that answer it, it is just the chronology of facts. We know that it was leaked to The Sunday Times, you were asked about that --
HARVEY: Yes.
LANGDALE: -- the comments on that, and then -- we will come to it later -- there were letters and phone calls made to parents and there was a very much on the back foot response to what you should be doing with the report: why was that; why did you sit on it?
HARVEY: I can only imagine it was because we were drawing up a plan of action with regard to how and to whom we should be sharing it and in what order. What I can't explain is why that took so long.
LANGDALE: Well, what was your thinking about in what order: what order should it have been?
HARVEY: Well, the order should have been that it should have been shared with the parents.
LANGDALE: So what was troubling you, as soon as you got it in November 2016, about sharing it with the parents?
HARVEY: I -- I don't recall that there was anything that was troubling me with regard to sharing it with the parents.
LANGDALE: Well, it was troubling you that you couldn't share the bits in green with Drs Jayaram and Brearey, so were you troubled about having to share that with the parents?
HARVEY: Until we had completed the full Casenote Review -- and because of that I don't think that we felt that we had actually fulfilled the requirement of the report -- I was uncomfortable with sharing until we were able to give a much fuller picture.
LANGDALE: The report had said, we had it on the screen a moment ago: "In the light of information shared with the Review Team, the RCPCH advised the Trust to follow corporate processes in responding to allegations of misconduct by
opening an investigation. It was also recommended a full and independent Casenote Review was required on the deaths, prioritising those that were unexpected." So that report flagged up very clearly a need to respond to allegations of misconduct. That didn't happen, did it; you did not, pursuant to that recommendation, open an investigation into Letby?
HARVEY: It wasn't explicit in that with regard to the misconduct, although --
LANGDALE: Because they hadn't described the precise misconduct: is that what you are saying?
HARVEY: Well, yes, and, by the same token, I would accept that I didn't seek clarification.
LANGDALE: Well, let's have it back on the screen, INQ0005273, page 10: "In the light of information ..." Do you see that paragraph below the green text?
HARVEY: Yes.
LANGDALE: "... advise the Trust to follow corporate processes in responding to allegations of misconduct by opening an investigation." It wasn't an investigation you could conduct, they couldn't conduct it but the police could conduct it. That was another moment when it should have been obvious that you contacted the police; do you agree?
HARVEY: That would not accord with the subsequent emails in which Sue Eardley recommended independent neonatal experts to do the Casenote Review.
LANGDALE: I am asking about the first part, about the investigation into Letby, opening an investigation "in responding to allegations of misconduct". The first part, the bit that the Consultants were concerned about, not the case review and further requirements around that.
HARVEY: And I don't think that I or any of my colleagues interpreted that as responding to allegations of misconduct by Letby.
LANGDALE: Can you try and explain that because I'm not sure I understand it at all.
HARVEY: In retrospect, I should have sought clarification on that.
LANGDALE: What needed clarifying?
HARVEY: What needed clarifying was regard to the specific allegations of misconduct.
LANGDALE: The allegations of misconduct was that they suspected her of deliberately harming babies. Go back to your 30 June meeting: "Beverley Allitt situation", "Shipman situation", that she was killing babies. Allegations of misconduct, there isn't a worse one, is there, than being suspected of killing babies?
HARVEY: But then if you follow with the recommendation directly underneath, that in the black text it is advice but the recommendation underneath does not actually tally with that, because it doesn't mention any further details about allegations of misconduct. It simply goes on as the recommendation, following on from that paragraph, that there should be a thorough external independent review of --
LANGDALE: Of every death because --
HARVEY: Yes.
LANGDALE: -- as they told you at the beginning, they couldn't look at the deaths, they weren't able to do that --
HARVEY: Yes.
LANGDALE: -- they didn't have pathologists, they didn't have the variety of expertise within it and it's not what they do in a service review. So doesn't the next paragraph just say, "Have a thorough external independent review of each death, try and understand what happened"?
HARVEY: Yes, and that was -- those were the recommendations following on from the paragraph above. It didn't, in any way, in terms of the recommendation of what we should do, be any more specific than we should be doing an external, independent review of each death.
LANGDALE: Let's take that down, please, and can we go to INQ0004341, page 1. This is a Quality Safety and Patient Experience Committee on Monday, 19 September, where you provide a report back on the RCPCH at page 2. Perhaps we can all take time to read what you say at the top of page 2 about the NNU. If we can make it larger, thank you. You are giving a verbal update and you say: "The external Review Team had not raised any immediate concerns and the Trust was awaiting the final report. The team had been very complimentary about the staff they had met. The College had recommended that Trust commissions a forensic review of the cases that sparked the external in the first place, carried out by two independent paediatricians." So you refer to the need for a forensic review but you say they hadn't raised any immediate concerns. They had, hadn't they? They had said: "It is important that the Trust takes immediate steps to formalise the actions you are taking with the nurse."
HARVEY: I would draw a distinction in terms of the use of immediate concerns. For most Trusts/hospitals, if an external organisation comes in, for example the CQC, an immediate concern is one where they say there and
then, "You have to do this right now before we leave the building. You have to stop this service. You have to do this". And in describing immediate concerns there, that was what I was capturing.
LANGDALE: Can we look, please, at INQ0003120. If we go over the page, "Action required", at the top. If we can highlight, "It is important the Trust takes immediate steps to formalise the actions you are taking with the nurse": "Our understanding is an allegation has been made and a process of investigation needs to be put in place which sets out nature of the allegation and the process you will follow." It should have said or might have said "Go to the police", but you are the decision maker here and you have the bigger picture and you had had all of the meetings and emails from Drs Brearey, Jayaram and the other Consultants. This was a request or a recommendation to take immediate action and, here you are, telling the QSPEC, that they had not raised any immediate concerns. They were concerned that you weren't dealing with one of the most serious allegations that could be made; do you agree?
HARVEY: I'm -- I am not convinced that that is
explicit. I -- in terms of further investigation, I believe that we associated that with the Casenote Review because that was, as we viewed it, part of the investigation into how the babies had died, whether there were any factors that might be associated.
LANGDALE: You weren't prepared to conduct or authorise any investigation, until you had satisfied yourself as Medical Director that you had concrete proof; is that the position?
HARVEY: I wouldn't go so far as saying "concrete proof".
LANGDALE: What would you say then?
HARVEY: But we were faced with a situation where there was an increase in mortality, which was unexplained. We were faced with a report that had highlighted concerns about some areas. We had had the Silver Control review which had highlighted some areas of concern, and we were in a position where there was a series of postmortems that had not highlighted any evidence of anything but natural causes.
LANGDALE: The postmortems, as you well know by now, were conducted without anyone knowing there was a suspicion or concern about somebody being present at the deaths, and that they were sudden and unexpected. That's really
important when assessing what's happened to a baby, isn't it: you need clinicians and pathologists to be speaking about the concerns of the clinicians and for the pathology team to know what those concerns are, when they are looking forensically at what may have occurred; you know that is the case?
HARVEY: I -- I do.
LANGDALE: Why didn't you know that then?
HARVEY: I would also say that, in the documentation that would be requesting the postmortem and the document that was going to the Coroner who might request a postmortem, there was nothing that those submitting those applications were putting in that led to a more detailed postmortem.
LANGDALE: That can --
HARVEY: And that would influence how we would view the situation.
LANGDALE: So what was the point of asking for their advice at all because they had told you they couldn't really answer your question. When they had given you this advice, you ignored it anyway because you know better?
HARVEY: No, I didn't know better. But we acted on their advice in progressing with the Casenote Review.
LANGDALE: Let's go to that, if that can come down. Dr Hawdon gave evidence to the Inquiry, Mr Harvey, and she was asked if she was aware there was a particular member of staff that they suspected was harming babies. She said: "I now feel misled. I can't say who misled me but I feel misled and, as I have said before, if those details had been made available to me, the process which would have followed would have been very different." Dr Hawdon feels misled. She didn't know that the Consultants were suspicious about a member of staff and that would have influenced her in both how she conducted her work and what she said subsequently. Do you take responsibility for Dr Hawdon being misled about both what was required and the information that she was given?
HARVEY: I was responsible for instructing Dr Hawdon. I recall that in the process of a conversation with her I made reference to there having been a member of staff who was associated more commonly.
LANGDALE: "Associated"? We have been through this yesterday. "Associated" doesn't communicate suspected of killing babies?
HARVEY: Well, I put it in terms of association and I was influenced by the Royal College report and their reference to "gut feeling". The College report having
not put it any stronger than that, I believe that would influence how I would, in turn, speak to Dr Hawdon and commission Dr Hawdon.
LANGDALE: So you took the impression of the reviewers, who had met people over a shorter period of time than you, and you say you rely on gut feeling, as described by them, rather than your own impression of Dr Brearey, who you had spoken to many times about this?
HARVEY: Given the expertise of the College Reviewers, yes.
LANGDALE: What expertise, can you expand on that?
HARVEY: My understanding that these were very experienced specialist neonatologists with great experience and knowledge.
LANGDALE: Because by using the word "association" of one member of staff, and sometimes you add, "and there were others there but less frequently", you were minimising, weren't you, the allegations that had been made when you spoke to Dr Hawdon?
HARVEY: I'm not clear that, at that point, the allegations were any greater. We had -- in the series of meetings with the paediatricians -- had a number of detailed conversations and, in going through this process, I think there is documentary evidence to confirm that the paediatricians had felt that the
process we were going through was a reasonable and appropriate route of escalation?
LANGDALE: Well, we will come on to the paediatricians and their conversations with you. But let's deal with INQ0003123, page 1. This is where Dr Hawdon raises issues of consent with you. You say. "Re parental consent: we had informed parents ahead of the review that it was occurring. I had not got a particular template. Whilst I have done a lot of adult Mortality Reviewing, I have no experience in neonates." So tell us what you say you had done in terms of getting informed parental consent ahead of the Hawdon Review?
HARVEY: I was seeking Dr Hawdon's advice with regard to the most appropriate communication to -- to do that.
LANGDALE: Well, you have asked her for a template but you actually assert: we had informed parents ahead of the review. So, from her point of view, you have got the consents.
HARVEY: No, I -- all I am implying is that I -- that there was information that a review was going to occur. In asking for a template, I believe I'm indicating that we hadn't, at that point, had informed consent.
LANGDALE: So you agree you hadn't informed any parent
about this at all, at the time of writing that email?
HARVEY: I am indicating that we had informed them that the review was occurring.
LANGDALE: Yes. Just answer this question: had you contacted any parent of the babies that Dr Hawdon reviewed to ask them if their medical notes, their babies' medical notes, could go to Dr Hawdon and the purposes of the review; had you asked any parent at the time of writing the email?
HARVEY: I cannot recall, based on that email.
LANGDALE: Don't worry about the email.
HARVEY: Yes.
LANGDALE: You know now. Had you done that?
HARVEY: I don't know, I'm sorry.
LANGDALE: I'm sorry?
HARVEY: I said, "I don't know, I'm sorry".
LANGDALE: You didn't, did you? You do know you didn't do that. You are here to tell truth: you didn't do that?
HARVEY: I am fully aware of the oath that I took and I cannot remember.
LANGDALE: You would remember writing to parents about this review, if you had done so, wouldn't you? How would you have got the information. Just think about how you would have got the information, who would have got it for you -- these babies, where their parents were -- who would have got that information at this time in September 2016 for you?
HARVEY: I would almost certainly have delegated this task. But I have no recollection of following that through. If I didn't, then that is a significant error on my part and I'm -- I'm very sorry for that.
LANGDALE: I'm not sure what an apology means when you caveat with "if I didn't". We know, and you have seen the documents, after The Sunday Times publish or refer to publishing the report, in that February 2017, there are efforts to contact parents. We don't see any evidence of efforts to contact parents before then. The Inquiry has seen no such evidence. So, if you did do this, we don't have any documents and only you would remember. But it looks like you didn't, so why not own the fact you didn't do that?
HARVEY: If there is no evidence to that effect, I can only surmise that it didn't, in which case I'm truly sorry that I didn't.
LANGDALE: That feels much harder than it should be, Mr Harvey, to get that acceptance.
HARVEY: Absolutely not. It is based on the fact that I, many years after the fact, cannot remember.
LANGDALE: Well, you apologised at the beginning
yesterday for getting communications with families wrong, and you have had a long time to think about it. Did you listen to the parents' evidence in this Inquiry?
HARVEY: I did.
LANGDALE: So you know what they all have said about that?
HARVEY: Yes.
LANGDALE: So you have had a chance to think about it. So are you genuinely saying, "I got that wrong, I didn't contact people and I shouldn't have said that to Dr Hawdon"? Or are you saying, "I don't recollect and, if I didn't, I'm sorry"?
HARVEY: I am saying that where I am found to have failed in either the type, the quantity, the quality of any communications, I'm truly sorry.
LANGDALE: Let's go to INQ0103171, page 1. Dr Brearey, despite the fact you don't seem to look to him for his views on a number of occasions when you are not meeting with the paediatricians, tries to assist you, 20 September, in this email: "Dear Ian, I have been thinking about the upcoming Casenote Review. As I have gone through these cases a number of times, I just needed to point out that providing just the case notes to the reviewers will not be enough for them to review the care fully. All the
nurse records are entered on to Meditech, so presumably will need to be printed off one at a time. All entries are under patient care notes. In addition, the reviewers will need to access BadgerNet. Some of the X-rays are also quite important in some of the cases but I am sure you have thought of this already." You hadn't thought about those things already, had you?
HARVEY: I had, insofar as I had requested that we pull together all the -- all the documentation that we had for each baby to be sent.
LANGDALE: The Royal College had suggested that: "When these further forensic Casenote Reviews were conducted with expertise in neonatology and pathology, it should ideally have case notes, and electronic records should ideally be paginated to facilitate reference and triangulation." What's the important of to facilitate reference and triangulation in a forensic review; what are people trying to triangulate when they conduct a forensic review?
HARVEY: Presumably to be able to cross-reference the timing of events.
LANGDALE: So it's really important and Dr Brearey is making it clear to make sure they have all the
information, X-rays, X-ray reports, case notes, medical notes, and ideally you should be having conversations with the clinicians who were there, in case the notes don't record everything. That's a forensic review, isn't it?
HARVEY: Yes?
LANGDALE: Proper consultation between clinicians and pathologists?
HARVEY: Yes.
LANGDALE: Dr Hawdon described getting a box with different case notes in different places, no doubt because people had gone through them many times from what you have said. But no thought given to the queries Dr Brearey raises. Indeed, when we look at who put them together -- give me one moment -- I think it came from Annemarie Lawrence -- we will check that -- but from a different team, a Risk Team putting the bundles together. You didn't get assistance, did you, from a doctor or somebody who had already (unclear) the notes about how you needed to put that material together?
HARVEY: No, I didn't.
LANGDALE: You didn't. The other important issue was which babies were you going to even invite the review upon. You didn't get their assistance with that either, the paediatricians, did you?
HARVEY: No.
LANGDALE: We know Baby A [Child A] had died and was a Twin and his sister had also deteriorated and collapsed, and we know Baby E [Child E] had died, and he also had a twin, Baby F [Child F], and you know that O and P were part of triplets. So, at the time you were asking Dr Hawdon to look at this review the concept must have become clearer that multiple births were being affected two pairs of twins and triplets as well. Whilst Dr Hawdon was asked to look at Baby A [Child A] and E, she was not asked to look at babies B and F was she?
HARVEY: No.
LANGDALE: Had she been invited and someone given thought to the fact, well, let's have the twins, in both cases, it may have been much more value. Even at that stage, with just a Casenote Review, looking at E and F would have been much greater value, wouldn't it?
HARVEY: Yes, it would.
LANGDALE: You said yesterday you had gone through the notes and seen the insulin report and where it was. As night follows day, Dr Hawdon would have done, wouldn't she?
HARVEY: She would.
LANGDALE: You had also in your Silver Command got
different people looking at case notes and reviews and yet somehow Baby F [Child F] wasn't looked at, in your Silver Command exercise. So when you say yesterday it was a collective failure or the paediatricians didn't spot it, neither did your Silver Command exercise, did it?
HARVEY: No, and the Silver Command exercise, I believe, the identification of the notes for review was carried out by Dr John Gibbs and by -- I believe Ann Fisher, the nurse who assisted him in reviewing.
LANGDALE: If they looked at Baby F [Child F], you don't know that either. It doesn't seem to be very clear. They were looking at babies that were transported out, I think is their explanation?
HARVEY: Yes.
LANGDALE: It's not clear what the focus was on any review or why various babies were chosen. That's something that required the police, didn't it, who look at all the babies forensically, carefully and get independent expert evidence to do so. That is what this cried out for?
HARVEY: At the time, this was primarily about reviewing the babies who died, so they were part of the Jane Hawdon review. I believe that the baby -- the four babies that she reviewed who had collapsed were those
that had been identified in the course of Ruth Millward's earlier review of incident reports and absent incident reports.
LANGDALE: Can we go now, please, to INQ0058920, page 1. This is moving forward in time, February 2017, and you write to Dr Subhedar and say: "As you are probably aware, the RCPCH Review has leaked to The Sunday Times. I believe that we have forwarded embargoed copies to Commissioners, regulators and the network." Embargoed copies: do you mean the ones without the green text?
HARVEY: I would imagine so, yes.
LANGDALE: Yes, so your Commissioners are not aware of that or your regulators either; might they have been interested to know that?
HARVEY: Yes.
LANGDALE: That there was a misconduct allegation that needed investigation, somebody who's commissioning services from the hospital might want to know that, on behalf of the mothers that are going into that hospital and having babies; do you agree?
HARVEY: Yes.
LANGDALE: So why did they get the embargoes or not that information: what were you hiding there Mr Harvey?
HARVEY: I don't believe that we were hiding anything at that time. I think that we were going through the process of trying to get a complete picture of the position. I think that, as I have already alluded to, we were influenced by the nature of the Royal College report and the reference to gut feeling, which underplayed the situation and didn't do anything other than, I think, push us in the direction of trying to get more information.
LANGDALE: That was your view. Others were entitled to make their own professional assessments on a proper, full, transparent basis of the information that you had, weren't they? You deprived them of that, the Commissioners, the regulators?
HARVEY: And I -- I think as I said yesterday, yes, I should have had a conversation with Specialised Commissioning at an earlier time.
LANGDALE: When we look, please, at INQ0103192, page 1, we see Dr Subhedar's response to you, in respect of the RCPCH Report and Jane Hawdon's review, and you say you respected Dr Subhedar, the Inquiry has heard from Dr Subhedar. He points out at paragraph 2: "My own interpretation of the 13 deaths included in her review suggests there were four cases in which there is no clearly identified cause of collapse death, and a further three cases where the cause of the initial collapse leading ultimately to the baby's death remain unexplained." He then says: "I am broadly in agreement with her recommendations, however it should be noted that many of these recommendations are relevant to all NNUs not just Countess of Chester. Additionally I see no specific justification for recommendation 5, on the basis of her review." That was a recommendation where she said: "Although no death in the series was known, subject to outstanding postmortem reports, to be secondary to undiagnosed pneumothorax or duct-dependent congenital heart disease, consideration should be given to training and checklists in the event of unexpected collapse to consider these." So he was making the point that the one point where she commented on deaths wasn't relevant to the cohort, so you had got absolutely nothing from that report in respect of the deaths that you were concerned about, or the Consultants had raised concerns about.
HARVEY: I'm sorry, I'm not sure I understand the question.
LANGDALE: You didn't get any evidence at all from
Dr Hawdon that undermined the Consultants' allegations or concerns that Letby had been harming and killing babies?
HARVEY: Nor did we get anything that actually supported those allegations.
LANGDALE: Did Dr Subhedar's letter reassure you when he said that there was nothing or much of what had been said that wasn't relevant to all NNUs, not just the Countess of Chester; so your broader canvas was as much relevant to the Countess of Chester as other hospitals?
HARVEY: I'm not sure that I would describe it as "assurance".
LANGDALE: Did it take you away?
HARVEY: The degree -- the degree of variability within medicine is such that, whilst there can be a lot of commonality, it doesn't take a great deal of difference to produce vastly different results and, at this time, we were obviously proceeding with the -- as Dr Hawdon had suggested, a further review of the pathology with regard to some of the babies.
LANGDALE: You didn't pursue what Dr Hawdon suggested at all. You went to Dr McPartland to ask her to just go back over the postmortems that had been conducted when they didn't know there was any suspicions or concerns and they required a forensic postmortem.
So you didn't do what Dr Hawdon said, did you; you just went to Dr McPartland who you knew already?
HARVEY: In the first instance, I discussed it with Dr McPartland. She didn't challenge and I made her aware of Dr Hawdon's recommendations.
LANGDALE: You didn't make her aware that you were concerned there were allegations that a nurse had been harming or killing babies, an Allitt or Shipman situation, you did not say that to Dr McPartland at all?
HARVEY: I believe in conversation with Dr McPartland, I did make reference to the fact that our paediatricians had suggested an increased association with one member of staff. I also asked her about air embolus, which is something that Dr Jayaram had raised as a potential cause of harm and --
LANGDALE: You didn't ask her to posit whether that was a cause of harm or death in a case. You sent an email asking about venous froth on a lung, or something, and whether that could be representative of air embolism and as a response.
HARVEY: No, I did ask her specifically whether she would be confident that she would identify air embolus as a cause of death and --
LANGDALE: Did you say "In relation to this baby or this baby", or give her the notes, or did you just throw
something out generically?
HARVEY: No, that was -- it was a general question.
LANGDALE: What's the point of that? What's the point of a general question? You are a doctor, you need to know the specifics. You can't just say "When does this happen or when does the other happen".
HARVEY: Well, it was posed by Dr Jayaram as a potential, again, it wasn't put in terms of specifics and, at that time, there wasn't a specific. It had been raised as a possible cause of death --
LANGDALE: He had raised it as a possible mode of attack for some of the babies in the meetings when you were all discussing concerns. He had said "cannula air embolism"?
HARVEY: That can be either deliberate or accidental and I was asking Dr McPartland whether she was confident that, whichever mechanism, air embolus would be identified at a postmortem, and I had the answer from her that they would.
LANGDALE: She said she had spoken to somebody who conducted the postmortem in the case you were concerned about. There was nothing transparent in your question or open about "In relation to this baby, in these circumstances, looking at this", was there? You did a one line email, she does a one line back and you said that satisfied you that that was medically sound in response to inform your thinking about this?
HARVEY: In terms of a general request, with regard to the likelihood of identifying air embolus as a cause of death, yes.
LANGDALE: So with no notice to her at all what you were thinking about, you relied on her in relation to that; is that what you are saying?
HARVEY: No, I am saying that there was -- I would accept there was limited notice.
LANGDALE: So let's just see, so we are all clear, the emails. Yours is INQ0102010. You say: "Just one query. The report states a very small air embolism might not be detectable at autopsy. Does that mean that a significant embolism would be evident?" So "very small embolism" might not be, first of all. So did you think, well, neonates are small, it wouldn't take much of a significant embolism. Why are you asking the question? You are not ...
HARVEY: "Very small" would imply that it was not clinically significant. That's why I was asking about a significant -- "significant embolism" would imply one that would be sufficient to cause harm.
LANGDALE: What do you mean the size of the embolism or --
HARVEY: Yes.
LANGDALE: -- the impact, the clinical impact?
HARVEY: Well, both size and --
LANGDALE: Presumably, the amount of air embolism required in a tiny neonate is different, isn't it, than adults, the patients you were used to working with. It would take a very small amount, wouldn't it?
HARVEY: This is a question of proportionality and "very small", when talking about a neonate would be very different from "very small" with regard to an adult. So that this is purely the proportionality, and hence significant -- a "significant embolism" in a neonate would be completely different from a "significant embolism" in an adult.
LANGDALE: Let's see the response, INQ0102011. We have to enlarge that if we can: "A significant air embolism should be accompanied by froth in the vessels or lungs." Dr McPartland gave evidence that her approach would have been very different to that generic question, had you been specific or set out what you were interested in and why. That was an email exchange where you didn't give the other person any of the information they needed to answer the question you say you were seeking to ask: whether these postmortems would have detected air
embolism. That's really what you were seeking to ask, and you didn't give her the full picture, did you: you just did a one liner and now rely on it?
HARVEY: No, but that -- I took from that exchange that, had there been a significant air embolism in one of those babies, that they would have actually seen the evidence at the postmortem.
LANGDALE: So you are turning into the investigator, you are trying to understand the medicine that's not your area of expertise. You then rely on it and protect Letby from a police investigation. Have you become the judge and jury deciding whether this is made out, whether this allegation is proven, putting the bits together as best you can?
HARVEY: No, I'm simply trying to understand the evidence that is being presented to us.
LANGDALE: That can come down, please. Well, that wasn't being presented: you were asking for it, you were positively going out through Silver Command directions and then through approaching McPartland and Hawdon, you are going out looking for evidence?
HARVEY: I'm seeking clarification with regard to the facts that were being presented to us.
LANGDALE: What's the difference between that and looking for evidence? You are looking for evidence of the
deaths around the deaths?
HARVEY: I am -- I am not looking, I am querying whether there would have been evidence or not.
LANGDALE: INQ0060264, page 1. This is Dr Hawdon's report. We don't need to go through it but the metadata indicates, I think, by 1 March, there's been about eight versions where you are adding, aren't you, Mr Harvey, and I just want to be clear that's what's going on. So if we go to page 7, first of all. We see the green and the types, the additions, track changes, I don't need you to comment on these in relation to [Child O] or generally. But what's happening, you are adding to this document, at various times, information that is coming in, is that right?
HARVEY: I'm using Dr Hawdon's report as a -- the basis of pulling together all the information that we had had from the various reviews.
LANGDALE: And you are putting it in one place. So if we go to page 9, you add from Dr McPartland's review, [Child O], you have put this section in. It continues throughout, where you are adding various things from notes, it can't simply be from Dr Hawdon herself, it is from other material, isn't it: you are combining bits of information that you get?
HARVEY: I am and, in doing that, I -- I haven't made clear the nature of that report. I shouldn't have left Dr Hawdon's name on the top of that because I was simply, I was using her report as the basis for collating all the information together as we were trying to understand the whole picture for each baby.
LANGDALE: Page 26, you have added various details: "Letby: Registrar Harkness called and in attendance." You are adding stuff from the rota review that's been done as well, presumably? Dr Hawdon said she didn't have the material or details to go through that. So you know you had had people in the hospital doing that, so you are adding various bits, aren't you, as you go along. Then we go to page 59, and you have moved [Child D] up -- I think you did that in your version 2 -- following the postmortem review. So you have moved that top to the top. Very intricate document and then there is something else you prepare separately, it would appear, INQ0062339, page 1. Then you start to move the material around, after the version 8, it seems like you have done this for each baby, pulling things together in this way; is that right?
HARVEY: Yes.
LANGDALE: So why are you doing this? That can go down
now, thank you.
HARVEY: I believe this came on the back of the ongoing concerns that were being expressed. It was an attempt to draw all the information together to be able to understand, ultimately, where we were going to go next. This was the prelude after the conversation with the paediatricians, after the conversation with the Coroner and the subsequent meeting with Dr Subhedar and the paediatricians having pulled all this information together, that -- that realisation that we were going to have to go to the police.
LANGDALE: This is something that the police would have been doing. You are trying to draw all this material together. You are getting members of your hospital staff to do similar things. We have heard from Sian Williams, she's doing rotas, and she says go to the police and you, yourself, are behaving like a detective, pulling it together. Because you are all suspicious and you need to understand what's happened and you are the wrong people to be doing it. This should never have been happening.
HARVEY: I wouldn't say that I was acting like a policeman. I wasn't investigating in that way. It is --
LANGDALE: What, you weren't looking for a crime?
HARVEY: I was looking to try and establish the causes of death. I -- as a doctor, as a clinician, would commonly be faced with those -- those scenarios in terms of obviously, most commonly, natural causes of death and this was, to a large degree, a clinical review. It was the fact that, despite all that, we couldn't come to an answer and these documents were prepared really to try and understand the whole detail that we had regard, with regard to every baby to discuss with the paediatricians, to discuss with Dr Subhedar and, on the back of those conversations, it was apparent that we had to speak to the police.
LANGDALE: When you say "to discuss with the paediatricians", did you put yourself on a par with the paediatricians and Dr Subhedar when it came to neonates --
HARVEY: No.
LANGDALE: -- because Dr Subhedar sent you a very clear letter which indicated, I suggest, that you should go to the police, as did your own paediatricians' concerns earlier. But you think you need to follow what they are saying, understand if it's right, have discussions with them: why? What's your status in all of this?
HARVEY: I am -- I'm not sure that that is supported by the documentation. There are multiple meetings that
indicate that, at various times, the paediatricians were accepting and agreeing that the line that we were taking was appropriate, and I think we have Dr Jayaram agreeing that a College Review was appropriate.
LANGDALE: I am going to come to why they may or may not have agreed with you, Mr Harvey, so can we just confine ourselves at the moment to how you end up doing these investigations yourself. You have given your answer: you didn't think you were behaving like the police?
HARVEY: I don't think that this was an investigation. This was collating all the information that we had.
LANGDALE: Can we have on screen, please, INQ0003135, page 1, and this is an email to you from Dr McPartland, and it indicates how little time she was under the impression she needed to give to this review that was happening about the postmortems and she says clearly: "It's not a full and formal medico-legal review. That would involve a second report and take about four hours of work per case." A forensic review would take many, many more hours than that. It shows she had nothing like that in her mind, would you agree?
HARVEY: Yes.
LANGDALE: Had no idea what you were really interested in: "If you require an analysis of this depth, it is probably best performed independently by someone from another centre." Why did she say that; what's the importance of it being independent?
HARVEY: I suppose so it can be seen to be someone who wasn't involved in the original postmortem.
LANGDALE: She could see that. Why couldn't you see that?
HARVEY: That wasn't a suggestion that we needed to undertake that. It was a view, "require".
LANGDALE: In the end, Mr Harvey, both Drs Hawdon and McPartland felt they didn't have the full facts and misled -- Dr Hawdon said very clearly "misled" and Dr McPartland said, had she had the full facts about suspicions and concerns, she would have dealt with the situation differently. You are responsible for them being misled, aren't you?
HARVEY: I do not believe that they were misled.
LANGDALE: So they are wrong: when Dr Hawdon says she was misled, she is wrong about that, is she?
HARVEY: Dr Hawdon has her opinion, based on how we know that this ended. I do not believe that I mislead either Dr Hawdon or Dr McPartland. I believe that
I commissioned them in good faith, based on the understanding of the situation at that time and, having been influenced by the various things that had been along the way. And I would refer again, in terms of Dr Hawdon, the strength or otherwise of my commissioning was significantly influenced by the way that the Royal College had phrased their recommendations and their findings.
LANGDALE: We are going to move on now to the grievance, the doctors and your interaction with them. Before I take you to various documents, Mr Harvey, do you have any reflection or regrets about how the paediatric Consultants were treated by the Executive Team after they had raised concerns and suspicions about Letby?
HARVEY: I think I included in my reflections that one of the greatest regrets of my career is the breakdown in the communication between the paediatricians and the Executives and with me in particular. I recognise how intense and difficult a situation that was. I recognise the strength of feeling they had and the suffering that they had associated with the grievance process, and I can fully understand their anger in terms of the perception of the Royal College report because it didn't reflect what they felt and recalled that they had reported to the College.
LANGDALE: Do you accept that you and your Executive colleagues, particularly Mr Chambers and Ms Kelly, created an atmosphere of fear --
HARVEY: I --
LANGDALE: -- fear of speaking up and saying what people thought?
HARVEY: I cannot -- I wouldn't speak on behalf of Mr Chambers or Mrs Kelly. I did not seek to create an atmosphere of fear. That would be completely contrary to how my practice had been up until that time. I have accepted that there were one or two emails that I completely inappropriately worded and that that might affect how they may see -- they might be received. Having said that, I did have a number of individual meetings with Dr Jayaram and Dr Brearey, where I tried to explore the concerns. But, ultimately, I accept that it is always going to be the perception of the person on the receiving end and, if they felt that they were intimidated, then that certainly wasn't the intent or the purpose but I would apologise to them for that.
LANGDALE: Dr Isaac gave evidence to the Inquiry that she was going to sign a letter or write a letter with concerns but didn't because of a culture of fear. It was more than simply not stating things: people were
worried for their careers if they did. They were worried that their jobs were at stake if they stood up and said what they thought, and it was a genuine concern, wasn't it?
HARVEY: If that was how they felt then, yes, but I can think of nothing that was done or said that would have, certainly from my perspective, threatened their career or their standing.
LANGDALE: It wasn't just Drs Brearey and Jayaram that referred to that. I have said Dr Isaac gave that evidence, and Dr ZA gave evidence that, when she was contributing to the signed letters and the concerns around Letby, she had a conversation with her husband about how were they going to pay the mortgage, what would happen if she lost her job. Under your period of tenure as Medical Director, doctors, who had no doubt trained and worked hard to become doctors and enjoyed their work with patients, were worried about losing their jobs for raising patient safety concerns; do you accept that?
HARVEY: I accept that I failed in the duty of pastoral care that I should have offered and, until that time, I feel I had offered to medical colleagues.
LANGDALE: How had you done that? How had you offered support to any of your medical colleagues?
HARVEY: Are we talking about prior or are we talking about the paediatricians involved?
LANGDALE: Through the period, I'm talking about any of the ones I've mentioned: the paediatricians, Dr Isaac, any of them. What did you do to go and seek somebody out and say "This is difficult, am I making it worse, how could I help?" Anything like that?
HARVEY: In terms of the paediatricians, I have accepted that I -- I failed in that regard at that particular time.
LANGDALE: Over a long period of time: this went on for a long period of time. It was a year.
HARVEY: I did have meetings with Dr Brearey and Dr Jayaram. They tapered off. I remember conversations with Dr Jayaram in my office where he was expressing his anger at the situation and how he perceived things. I tried to be supportive. I was trying to be supportive in protecting them from the threat of the GMC.
LANGDALE: Well, we will come to the threats from the GMC. But what did you understand they were before we go to documents?
HARVEY: Sorry?
LANGDALE: What do you understand, who was threatened with the GMC, by whom?
HARVEY: Dr Brearey and Dr Jayaram were threatened with
the GMC by Letby's father. At no point did I threaten any of the paediatricians that I would consider or was going to report them to the GMC, nor did I have a conversation with the liaison adviser of the GMC who I met on a regular basis that I was even considering that, although I might have highlighted that there was a risk that they could be reported by someone else.
LANGDALE: So you did, as the responsible officer, speak to the GMC about the possibility of the paediatricians being referred to them, did you?
HARVEY: I -- I cannot recall but in the regular meetings I would highlight potential issues that might be coming to the GMC and, if the meeting with him had coincided with knowledge of this, then I believe that I would have highlighted that there was a risk that they might be contacted by someone, and it wouldn't be me, with regard to a complaint.
LANGDALE: The Inquiry has a statement from Susan Gilby, who of course took over as Chief Executive, didn't she? She says that, when she did, she had a conversation with you and you did say to her, she says this: "I do clearly recall that almost his parting words, I had put away my notes and was standing to leave, were, 'You need to refer those paediatricians to the GMC'. I replied by asking why he had not done so and he
retorted jokingly that he had not wanted to spoil his clean sheet." Do you remember saying that to Susan Gilby?
HARVEY: I did not say that.
LANGDALE: If we go to some of the other documents of meetings, INQ0006265, page 1, to put this in context, this is a meeting between the Execs, and it's a meeting when there is a "Susan Hodkinson Options Document". For everybody's assistance perhaps we will go to that on the screen as well now, INQ0051682, page 1. This is an options paper presented at the Executive Team meeting on 8 September and we see at the bottom of the page, in the box on left, Option 4 was: "Reintegrate back within the NNU without ITU/HDU duties whilst competencies reviewed." I am sure we will have that back in a moment. There we are. So this is looking at the options managing Letby. We see that is the Option number 4. If we go back to the paper, the notes of the meeting on Thursday, the 8th, INQ006265, page 1, we see there that Mrs Hodkinson recommends Option 4, so that's getting her back, and then this note here: "Potential deal with Steve." What did that refer to? Here he is the lead neonatologist, her going back on the ward. That was
going to cause problems, wasn't it? So what does "potential deal with Steve" refer to?
HARVEY: I -- I don't know. I have no recollection of that conversation.
LANGDALE: You are obviously at the meeting, it's "How do we manage Letby". Your head of HR is saying, "Let's get her back into the NNU", and you have got the lead neonatologist who's told you very clearly he suspects she is harming/killing babies. So you have got a problem there, haven't you, Mr Harvey: so what was being discussed about "potential deal with Steve"?
HARVEY: I, as I have already said, cannot remember the conversation around that item. I can only surmise that this is related to the grievance.
LANGDALE: Options, you are talking about Letby there. So what's the deal with Steve in relation to the grievance?
HARVEY: I can't tell you. I would imagine only Mrs Hodkinson would be able to tell you about that.
LANGDALE: Were you discussing how you might manage to get Steve out or think about getting a deal to get him to move on or anything like that?
HARVEY: At no point was I party to a conversation about how we would manage out any of the paediatricians from the unit.
LANGDALE: Did you know whether other members of the Executive Team had had those conversations?
HARVEY: I wasn't aware of any conversations with regard to that, no.
LANGDALE: Well, let's have a look at INQ0015642, page 48. It's a bit later in time. This is by May 2017. It's a note of a meeting, Mr Chambers, Mrs Hodkinson. We see there: "Plan re management: GMC; actions from grievance; action plan to manage out; follow up call." Dr Brearey, as lead neonatologist, was becoming a problem, wasn't he, when you all wanted to get Letby back on the unit?
HARVEY: I didn't see him as a problem.
LANGDALE: Did you know that Mr Chambers and Mrs Hodkinson were discussing that?
HARVEY: No.
LANGDALE: Really?
HARVEY: Really, I did not.
MS LANGDALE: I think that might be a convenient moment for a break, my Lady.
LADY JUSTICE THIRLWALL: Very well. We will come back in 11.45.
(11.26 am)
(A short break)
(11.44)
MS LANGDALE: Mr Harvey, we were examining or moving on to the treatment of the Consultants. The grievance process: what did you understand the grievance was about at the time?
HARVEY: My understanding was that the grievance was about the way Letby had been managed with regard to being taken off the unit.
LANGDALE: Was it about what she was told about why she was moved off the unit or what she had allegedly done: what was it, as far as you were concerned?
HARVEY: As far as I was -- as far as I understood, it was with regard to how the -- the Trust had managed her off the unit, with the information that she was given with regard to why she had been moved.
LANGDALE: Had the Trust been open with her or transparent about why she had been moved, as far as you were aware?
HARVEY: As I understood it, the basis of the grievance was that she -- she hadn't been.
LANGDALE: Did you know at the time how the letters had gone out to her about how she was being moved off the unit?
HARVEY: I wasn't aware of those, no.
LANGDALE: But you understood the grievance was about
those kinds of letters, what she was told?
HARVEY: Yes.
LANGDALE: Did you at any time think that the grievance was about what the doctors had done or said and how they had behaved?
HARVEY: That wasn't how I perceived the grievance, no.
LANGDALE: Who were you relying on for information about the grievance before it started, around the time it started?
HARVEY: Ultimately, because it involved Letby, the information I was getting was from HR, so Sue Hodkinson, and from nursing, so Alison Kelly.
LANGDALE: So at no time did you think, from talking to them, that the grievance was about how the doctors had behaved or what they had done or said?
HARVEY: That wasn't my perception at the time, no.
LANGDALE: We see your interview for the grievance, INQ0003156, page 1, and, if we can go to page 2, we see halfway down, Dr Green asks you: "In the analysis table, the column showing 'Doctors removed', were you aware?" So everyone understands, there was a table, wasn't there, that Eirian Powell had attached to the Thematic Review, highlighting the nurses present on duty or on the shift before, and then another column had been added
to that: which doctors were --
HARVEY: Yes.
LANGDALE: -- around at the time? So when you were asked, "The column showing 'Doctors removed', were you aware", you say, "I wasn't aware of that", because, as far as you were concerned, you had seen both, had you, whether doctors and nurses were there or what?
HARVEY: At this -- at -- currently today, I'm unsure but I -- given that this was a timely comment, I can only stand by the comment I made there.
LANGDALE: Yes. So were you aware the doctors were removed, and you say, "I wasn't aware of that". So whatever he was referring to wasn't something -- did you understand the question?
HARVEY: Well, only insofar as he was asking if I had known that a column with the doctors had been removed.
LANGDALE: You then say: "There's been a number of behaviours on the ward that do not reflect too well. I had to go and speak to RJ that some of the trainees had been making reference to 'angel of death' but no specific person was named. There was behaviour in clinic, it's being heard talking about killing babies on the unit. Had to speak to Ravi about comments and killing babies. This was not denied and RJ did accept that it was inappropriate." So you raise it. Why did you raise that in this context, is my first question, and the second is: what were you telling him?
HARVEY: I think this was an answer, probably not just in relation to that one question, but following on from the two above, as well, in explaining the situation with regard to Letby on the unit.
LANGDALE: What behaviours were you describing, what did you go and speak to Ravi Jayaram about?
HARVEY: I had spoken to Dr Jayaram about a comment that had been fed to me by a member of the nursing staff about the trainees describing the angel of death.
LANGDALE: Who told you that?
HARVEY: I cannot remember who that was. All I know is it was one of the senior nurses.
LANGDALE: So Karen Rees, Eirian Powell, Alison Kelly, they are your options?
HARVEY: Quite possibly, yes.
LANGDALE: Well, which one?
HARVEY: I don't know. I can't remember.
LANGDALE: When did she say to you a trainee had spoken about "angel of death"?
HARVEY: I am unable to remember precisely when that was said either.
LANGDALE: So no specific person named?
HARVEY: No, because that was who said that or who reported that to me, sorry.
LANGDALE: So did you have any name to provide about those comments "killing babies" or "angel of death"?
HARVEY: With regard to the second, that was with regard to me being told that Dr Jayaram had been heard to make that statement in clinic.
LANGDALE: You accepted that to be true, presumably, because you are repeating it here; is that right?
HARVEY: I was accepting that to be true on the basis that I went to have a conversation with Dr Jayaram about it and he confirmed that that comment had been made by him and had accepted, as I put in that note, that it was inappropriate.
LANGDALE: You say that Dr Jayaram said he had said "She's killing babies"?
HARVEY: No, I didn't say that there was a reference to a specific person. The comment was that the -- there was someone killing babies on the unit.
LANGDALE: We have heard directly from the person that was attributed to by Eirian Powell, who says that, in fact, what she had heard was words to the effect of Dr Jayaram saying about the review: "Just because it didn't find anything, doesn't mean
there isn't anything to find." Not killing babies, Nurse T, sorry. That's the evidence we have heard. Did you bother to find out if anybody had heard that directly or you just went to say to Dr Jayaram, "Is that your evidence? Have you said this?", and he said, "Sorry about that, it's inappropriate"?
HARVEY: I -- my course of action was to approach Dr Jayaram to see whether what had been reported was -- was correct.
LANGDALE: You see, you don't say here it was Dr Jayaram. You say: "There was behaviour in clinic, it being heard talking about killing babies on the unit." You don't say it was Dr Jayaram who was heard to say that. You simply say, "I had to speak to him about comments that it was appropriate", but you are saying you knew straight at the time it was supposed to be being said about him?
HARVEY: That was how it had been reported to me and that was the reason that I -- I spoke to him. I can't speak for how those notes record what I actually said in that interview.
LANGDALE: But in terms of your reasoning, so one of the senior nurses tell you that's what he said, or been
heard to say by some other nurse, and you go and say to him, "Don't say that"?
HARVEY: No. The approach was, in the first instance, to ask if that was what had been said, was that correct as it had been reported? Not to go and directly admonish him for something that had been reported because I am very well aware that things can be misunderstood things can be misheard. So my approach would have been to speak to him to say that I had heard about this but was that -- my first approach would be, "Is this correct?"
LANGDALE: Ravi Jayaram did have suspicions that someone was killing babies, didn't he?
HARVEY: Ravi Jayaram had concerns about the increase in mortality.
LANGDALE: Had suspicions and concerns -- we have been through this -- suspicions and concerns, talking about methods of attack, that babies were being deliberately harmed and, after O and P, that was loud and clear in the meeting in June. So he had those suspicions and, in effect, you have a conversation that it's inappropriate to be talking about the very safeguarding concern they are all worried about.
HARVEY: I believe that the conversation was with regard to it being inappropriate to be saying it in a public place.
LANGDALE: Was it ever suggested to you it was in a public place, talking to another member of staff in a clinic?
HARVEY: Well --
LANGDALE: It doesn't mean it is overheard, does it, suggested?
HARVEY: If it's in a clinic, it has potential to be overheard.
LANGDALE: Yes, but it has not been stated that it has, but speaking to go a colleague about safeguarding concerns is a totally valid thing to do, isn't it?
HARVEY: In those circumstances yes. But --
LANGDALE: Well, that was the circumstance.
HARVEY: But, well, that wasn't as described to me when I spoke to Dr Jayaram.
LANGDALE: You, at the top of this page, make a comment, Mr Harvey: "There are issues with nursing with regards to investigations compared to medical staffing. We have measures specifically supported by the GMC and NCAS, if there are doubts speak to them. RC then would manage resistance from the Consultants. If I were a doctor, then there would be a period of supervised practice and development but there was a block on that as the
Consultants were not prepared to have the nurse on the unit and, if we do, they said the police would be called." You are trying to make that their concerns about her coming back on the unit an issue between doctors and nurses, that they are treated differently; do you see the top paragraph?
HARVEY: I do.
LANGDALE: Why are you saying that?
HARVEY: I am saying that because that was my perception at the time. I would accept that I have put in a factual inaccuracy in saying there was a block by the Consultants. I did not at the time understand that, in fact, there couldn't be supervised practice because the nursing staff didn't have the numbers to be able to support that as an option.
LANGDALE: If you go to the page before, you are telling him as well: "There was a threat to go to the police from the Consultants. Execs considered do we go to the police?" You are describing these Consultants as, in some way, high-handed doctors, Consultants, who think they are different from nurses in processes and procedures. You are creating an impression, aren't you, that there is a chasm between the Consultants and the nurses --
HARVEY: I --
LANGDALE: -- in the way the Consultants think about nurses?
HARVEY: I don't believe that that's what I was doing and, in fact, directly after that, it all, I also say that the Executives had considered should we go to the police.
LANGDALE: You have told us a moment ago what you thought this grievance was about. Why is it that you are talking at all about the Consultants and how they thought there was a difference, you say, between how doctors and nurses were treated and not recognising it; why is that even a feature in this interview?
HARVEY: Simply because that was my interpretation of the answers that were going with the questions that were put to me.
LANGDALE: So the questions that were put to you were getting you to criticise the doctors, and that's what you comfortably, it would appear, do, don't you? Look at your answers.
HARVEY: I wasn't specifically aiming to criticise the doctors in the course of this.
LANGDALE: Did you appreciate your comments were relied upon to do that very fact at the end of it?
HARVEY: I would accept that they -- they could be
interpreted in that way.
LANGDALE: You accept that you criticised the Consultants and that was used against them; is that what you accept?
HARVEY: I accept that there was comments with regard to behaviour. I, again, would simply say that the sentence that's highlighted with regard to the threat to go to the police is also associated with the fact that we also, as Executives, had considered should we go to the police.
LANGDALE: Look at the next question on page 2 from Dr Green: "Did you hear about Jim McCormack telling Eirian Powell she was harbouring a murderer. "No, I hadn't heard that." What did you think you were being asked that for? What's the relevance of that to the issue about how Letby had been managed?
HARVEY: I -- the only interpretation of that is that it's extending into the medical staff.
LANGDALE: The grave irony, of course, about that comment, upon the focus, of which was being used here against the Consultants, is that it was true: she was in the hospital and you were harbouring a murderer. She wasn't being investigated by the police. But this comment is being used in a different context, isn't it, to seek to invite criticism of the Consultants, including Mr McCormack now; do you agree?
HARVEY: It could be interpreted that way, yes.
LANGDALE: It's the only way, isn't it, Mr Harvey? I gave you a chance, and you took it fully, to explain what you thought this grievance was about and here you are, on page 2, criticising the attitudes of Consultants towards the nurses and being asked about comments and whether they are inappropriate when, in fact -- in fact -- whether they are inappropriate or not, they have turned out to be true: she was killing babies and the hospital was harbouring a murderer?
HARVEY: We have the advantage of hindsight there, obviously. But --
LANGDALE: At the time you knew the suspicion.
HARVEY: -- the context of my answer it that question was with regard to the earlier ones about the issue of Letby being taken off the unit.
LANGDALE: Have you heard of the concept, Mr Harvey, of bullying up? Rather than Consultants being seen to bully nurses, bullying up; that different groups in the hierarchy can come together and bully up? So the Consultants, one is always ready to believe, are arrogant, aloof, very aware of their own education; that's a popular conception. And nurses are unseen or
domestic staff. We have heard from Mrs Hodkinson, she would go along the hospital in roles where she might be unseen. They are very traditional characterisations of hierarchies, aren't they, and they are not always true, in fact. Sometimes it can be the other way round, bullying up: people have more power in different places in the hierarchy. Did you ever stop and think that the group of senior nurses advising you had their own issues, potentially, about the relationships between Consultants and nurses and, in fact, on the neonatal unit, until the issue of Letby arose, it was harmonious, in that respect? You hadn't heard anything about the issues between doctors and nurses, you said, before this issue. So why are you raising that now?
HARVEY: Because it seemed pertinent to the questions that were being asked and pertinent to the issues around Letby's removal.
LANGDALE: They say: "We felt redeployment was the best course of action. How did you agree the course of action?" Then you are effectively saying: "The Consultants wanted to block it because they might be able to have supervised practice, they didn't want a nurse to have that. It wasn't fair."
You go straight into that, not that they didn't want her there with supervised practice and you didn't add "We have got CCTV as well", did you, "We are thinking about CCTV"; you didn't give him the full picture of that?
HARVEY: No, I didn't and I've already accepted that I was factually incorrect in making the statement about them blocking because I am now aware that, in fact, the reason there wasn't supervised practice was insufficient staff numbers to be able to support that as an action.
LANGDALE: It was because they thought she might do more harm to babies. That's why they kept coming back to you, "We think she's causing harm to babies". O and P had died; they should never have died after that 11 May meeting, Mr Harvey, in 2016, when she could have been off the ward and referred to the police then.
HARVEY: Sorry, when?
LANGDALE: 11 May 2016, when you had that meeting together?
HARVEY: I would not accept that, as a result of the 11 May meeting and the conversations that we had and the approach that Dr Brearey and the nursing staff had, that there was anything that would have supported any action. Dr Brearey was entirely supportive of the action that came out of that meeting and I would highlight that one
of the actions was the reporting of any further collapses or incidents, and I believe that that applied to Baby N [Child N], but that wasn't escalated or reported.
LANGDALE: Let's go to page 3 of the grievance. You do refer, at the end of page 2, to: "Got security to review. Lack of security re getting in and out of the unit became apparent." Then, at the top of page 3, calling the police, you say: "They would have left a bomb site if they had come in. More and more sure it was right not to call the police as things have progressed." This is you in November: "Have you had any previous cases like this? "Not personally. Paediatrics was happy to quote Beverley Allitt but equally there was the nurse in Stockport who was ultimately not responsible for anything." "Paediatrics was happy to quote Beverley Allitt", are you belittling the way they expressed their concerns or minimising them in this interview?
HARVEY: No.
LANGDALE: "Happy to quote", I say that because of "happy to quote". Not that they were very worried, they are concerned, they think someone is killing babies but "happy to quote", as though in some way it's a bland overview, cheap comparison?
HARVEY: No, I don't -- I don't think there's any interpretation into that.
LANGDALE: Did you do anything or say anything in this grievance interview to Dr Green, who you knew was investigating it, to stop the questioning around the behaviour of the Consultants or the attitude of the Consultants, and say to him -- you are the Medical Director, there to support medical staff -- say to him: "I didn't understand this was part of this process." Or did you just answer the questions?
HARVEY: I, with regret, just answered the questions.
LANGDALE: That can come down, please. INQ0002884, page 1. This is an email to you included on it, from Hayley Cooper, Letby's representative: "I am emailing yet again." Did she often directly email you?
HARVEY: No.
LANGDALE: How many did you get directly from Letby or her representative, roughly?
HARVEY: Very few.
LANGDALE: Was it common in other areas of the hospital, where there were grievances being raised or concerns, to
get emails directly from the member of staff affected or their representative?
HARVEY: No.
LANGDALE: So this was the only time you got direct emails from an RCN rep or, as we will move on to, the person who was complaining?
HARVEY: This is the only time that I can recall.
LANGDALE: So you get an email. "Yesterday, some of her colleagues informed her that a Consultant, SB, is going around the NNU and informing staff that he has seen the external reports, and I quote 'appears to be bragging about it stating the report has cleared all the medical team as expected and he also informed the staff that he had been given the funding for a new Consultant post because of it'. On behalf of my member, we would like to know why this is happening, as we were given assurances not two weeks ago that a confidential meeting would take place with the medical director and key people regarding the draft report, and it would be kept confidential until the report was finalised and nothing would be discussed yet." So this is the RCPCH Report and Dr Brearey has given evidence that he spoke to Ruth Millward, the Head of Risk and Patient Safety, and the only conversation he
had with a nurse was to the effect that a ninth Consultant being appointed was necessary if the redesignation was to be reversed. That is what Dr Brearey says he spoke about. You receive this on 23 November and call Dr Brearey in for a meeting on 24 November: why?
HARVEY: It was to have a conversation with him with regard to what was alleged in this email. I believe that this relates to the Royal College review that he, Dr Jayaram and, I believe, Ann Fisher had reviewed and I think it was on College advice that that was, in the first instance, a confidential review and I think I had advised them that, at that point, it wasn't to be shared.
LANGDALE: Can I just go back to that, Mr Harvey and make it very clear. You commissioned that review?
HARVEY: Yes.
LANGDALE: You were not required to be secretive or cover it up. You could share it with who you chose having commissioned it, provided you and your lawyers were satisfied that you had fulfilled your obligations around how certain aspects of personal data were shared; do you understand that: it was your choice?
HARVEY: I -- I understand that now. But at the time, it was my interpretation that the Royal College knew
what they were doing and what they were talking about and that they would follow their instructions.
LANGDALE: So stop saying that you were prevented from circulating that report. You could have done what you wanted with it, with the members of staff and the Consultants. Nothing stopped you doing that. But it suited you to be secretive about it because the green bits that we have gone to flagged up the Consultants' suspicions and suggested that Letby needed to be investigated as a matter of urgency?
HARVEY: That is absolutely not the case.
LANGDALE: Well, we have gone to the documents.
HARVEY: As I have stated I was reliant on the expertise of the advice of the Royal College. I accepted what they said on face value because it appeared to be backed up by appropriate expertise and knowledge and I took that as what was normal practice.
LANGDALE: When you had Dr Brearey in your office on the 24th, what did he tell you about the conversations he had had and did you accept what he said were the conversations he had had?
HARVEY: I -- I believe I met him together with Mrs Hodkinson. I can't remember from memory what the conversation was.
LANGDALE: Why did you have Mrs Hodkinson there?
HARVEY: Because I believe that, actually, it was Mrs Hodkinson who had advised that we needed to meet with him.
LANGDALE: So if we go to INQ0003094, we see your letter in response, subsequent to that meeting. Mrs Hodkinson gave evidence that you were heavy handed in your approach or this letter was heavy handed; do you agree? Particularly if we highlight paragraph 3, and the last two sentences of the one above?
HARVEY: I -- I accept that that could be read as heavy handed, yes.
LANGDALE: "The final report, will be shared with the clinical teams as well as others but this will be done in a controlled way, by which I mean as an order of priority and sharing the information whilst ensuring appropriate support for those with whom it is being shared." Your order of priority was Executives first, to look at the documents, the RCPCH Report; two Consultants for a limited period of time thereafter; and the full report to Consultants, many months after. That was your controlled way, wasn't it?
HARVEY: That wasn't what I was implying at that point, no. It was simply making sure that we had an appropriate order of priority. It was important that
those staff who were vested in this had the opportunity to see it at the same time. But also mindful that it was a matter of importance that it was shared with the families.
LANGDALE: So the staff who were vested in it first, when should they have all seen it?
HARVEY: They should have seen it once we had corrected factual -- corrected any factual inaccuracies and received the final version from the College.
LANGDALE: That can come down. Can we have, please, the grievance finding, INQ0003611, page 2. If we look at the top, paragraph 4, a finding: "Whilst I recognise the board found themselves in a difficult position, I conclude the Trust has not been as open and honest with you [that is Letby] as they could be in relation to the circumstances." So criticism for how the Executives and HR managed communications with her, yes?
HARVEY: Yes.
LANGDALE: Justified?
HARVEY: Yes.
LANGDALE: Then we see at paragraph 7: "No party refutes that concerns were raised by the Consultants, in particular Stephen Brearey, to the Executive Team around a perceived commonality between
your presence on the NNU and the collapsed deaths of babies. I acknowledge that these concerns were raised through the appropriate channels, in line with both the Trust's Speak Out Safely policy and the guidance proffered by the GMC." Was that accurate?
HARVEY: I'm not sure about the reference to guidance proffered by the GMC because I did not have any conversation with the GMC.
LANGDALE: This, of course, the comments about in line with Trust Speak Out Safely policy, relied on comments you had made, wasn't it? Did you think that the Trust's Speak Out Safely policy had been followed; is that what you were trying to suggest?
HARVEY: I -- I don't think it had been followed in a timely fashion.
LANGDALE: But do you think it was followed at all?
HARVEY: I think eventually it was, yes.
LANGDALE: So do you think that was a justified conclusion: "I acknowledge these concerns were raised through the appropriate channels in line with the Trust's Speak Out Safely policy."
HARVEY: In terms of the early time, no, it's not.
LANGDALE: So that's not an accurate conclusion either?
HARVEY: I don't believe it is.
LANGDALE: What about: "I do not find the Consultants' concerns when reiterated to the Executive Team were clear, honest and objective." Was that justified?
HARVEY: I would dispute the use of the word "honest".
LANGDALE: Did you see this at the time?
HARVEY: No.
LANGDALE: When you first saw it, did you think, "How come they are commenting on the Consultants' interaction with the Executives"?
HARVEY: To be honest, I'm unable to remember when or, in fact, if I ever saw the final mediation report.
LANGDALE: Do you agree, leaving the grievance now, you contributed to criticisms unjustifiably of the Consultants in the context of the grievance process? That's where your contributions ended up: adding to the criticisms of them, that they had made various remarks, including Jim McCormack, that they shouldn't have made, and somehow, at the end of that grievance process, Consultants were being asked to apologise to Letby?
HARVEY: I wasn't the one who made any reference to Jim McCormack, I was asked about that and said that I didn't know about it. That must have come from somewhere else. I accept that I made reference with regard to some of the reasons why Letby had been removed, with regard to the behaviour. But it wasn't my specific desire or aim to aim anything at the paediatricians, be they trainees or the Consultants?
LANGDALE: Your comments about Dr Jayaram directly led to him being asked to make an apology to Lucy Letby, didn't they?
HARVEY: I can't say whether it was my comments alone that solely led to that.
LANGDALE: You are the Medical Director, you have gone and said, "I have been to speak to him, he's acknowledged it's inappropriate", as though he had acknowledged something about himself was inappropriate. That was used against Dr Jayaram and you must have known it was going to be?
HARVEY: I would not have known that it was going to be used against him.
LANGDALE: Were you unconcerned then whether it would be used against him because you chose to say it in the context of a grievance process?
HARVEY: It seemed timely with regard to the questions that were being asked to feed that in. I have no knowledge with regard to what other contributors to the mediation or to the grievance might have said that might
have reinforced that. So I -- I can't say that it was mine -- my evidence alone. I accept, as Medical Director, that might carry a degree of weight, but that was never my intention.
LANGDALE: Can we go, please, to INQ0003463, page 1. This is a meeting with Mr and Mrs Letby, Letby, Hayley Cooper, the representative, Karen Rees; were you aware they were meeting weekly?
HARVEY: I'm sorry?
LANGDALE: Were you aware there were weekly meetings taking place between Karen Rees, as a senior nurse, Letby, not always her parents, but there were weekly meetings with Letby?
HARVEY: I wasn't.
LANGDALE: Were you aware how close Karen Rees and Hayley Griffiths had become to Letby's position --
HARVEY: I wasn't.
LANGDALE: -- and as friends, if they believed that at the time?
HARVEY: No.
LANGDALE: Should you have been alert to that; should you have thought "Who's getting involved with who here"?
HARVEY: To be honest, I'm not sure that is a question I can answer. I don't know whether I -- I should have known or not.
LANGDALE: Well, it's important when you are a leader, isn't it, to understand perspective, where people might be coming from. To understand -- we have heard Eirian Powell was emotional, forceful, describing her support for Letby. But we know she managed a ward where Letby worked. So it's not surprising, perhaps, that she had her own relationship that was in her mind, her own professional relationship at the time that may have influenced her thinking; do you agree?
HARVEY: Yes.
LANGDALE: You, meanwhile, as the Medical Director, hadn't worked with Letby; did you spend any time with Letby, generally?
HARVEY: No.
LANGDALE: So you were distant from that and, as a leader, can see the perspectives people might bring to a situation, can't you?
HARVEY: I accept that.
LANGDALE: So did you realise that your senior nurses Karen Rees, Eirian Powell, certainly, had been meeting with Letby a lot, or had worked, in Eirian Powell's case, with Letby a lot and that might make this very difficult for them, for a number of reasons; did you think about that?
HARVEY: Well, no, because I wasn't aware of it.
LANGDALE: You were aware Eirian Powell managed her and was going to have worked with her, weren't you?
HARVEY: Yes.
LANGDALE: Let's have a look at INQ0003463, page 3. This is where you're meeting on 22 December with Letby's parents and you say: "Concerns were raised [this is about the Consultants]. We undertook a couple of reviews, subsequently came together in May, after two further baby deaths. We support any member of staff in raising a concern. We accept the behaviours were not appropriate. We set actions to undertake an external review and close to a conclusion. There was a panel of four of them [this is the RCPCH] who spent three days here. They compiled their report quicker than normal. They then came out for a secondary review, taken to a further level. A small component needs to be completed early in the New Year, that's why we have not shared the completed review." Over the page, at page 5, you are asked by Mr Letby: "Have you spoken to Ravi?" You say: "It's not appropriate behaviour. Not had it reported to me subsequently. SH [Mrs Hodkinson] and I met with Dr Brearey. Will be followed up with documentation to all of them." That's what you choose to say to him. You are not happy with their behaviours. They have raised concerns and suspicions. You know you are not being, or your hospital isn't being, honest and open with them about the level of suspicion and then here you are saying "It's not appropriate behaviour", and criticising the Consultants to Letby: why?
HARVEY: I would simply say that this was a difficult meeting. I was, I suppose, simply reporting the comments that had been referenced in the grievance. I can only say that I was influenced by being in a meeting that I hadn't anticipated with Letby and her parents.
LANGDALE: Who asked you to be in that meeting?
HARVEY: I'm not sure whether it was Tony Chambers or Sue Hodkinson.
LANGDALE: Can we go to INQ00 --
LADY JUSTICE THIRLWALL: Sorry, Ms Langdale, just before we move, could we have a look at page 5, which was the page number, I think, that you were looking at, wasn't it, whereas we have got page 4 on there. Thank you. We could follow it perfectly but it just wasn't in front of us.
MS LANGDALE: Sorry.
LADY JUSTICE THIRLWALL: No, that's --
MS LANGDALE: So "Have you spoken to Ravi", and there is the answer: "Not appropriate behaviour, nor had it been reported to me subsequently and you met with the other doctors." So you are telling them your processes and what you were doing.
HARVEY: Yes.
LANGDALE: If we go now to INQ0057499, page 1. "Dear Ian ..." So we now have Ms Letby emailing the Medical Director: "Dear Ian ..." Read the content of the email before I ask a question. She says: "There is something that has been playing on my mind since receipt of my grievance statements that I am wondering if you could help me with. Karen Rees was informed that a junior doctor openly tabled a meeting, when discussing the increased mortality rates and my possible connection/involvement with this. When Karen asked, the details of the doctor in the meeting were not provided. Is there an agenda or minutes which could be
traced. I am interested to know who tabled this and who was present as they are potentially professionals that I will be working with in the future and feel it is only fair for me to know. I believe the meeting took place shortly after the deaths of the two Triplets and involved senior and junior doctors. I would appreciate any help you can offer." You wouldn't necessarily have known this, Mr Harvey, but we know, of course, that Letby was texting and messaging Dr U for information about babies on the unit. You, as the Medical Director, are now being emailed and asked for information of people discussing concerns about her. What do you make of that: has that happened before?
HARVEY: It's not happened before and I regarded it -- and regard it -- as a completely inappropriate email.
LANGDALE: What did you do with it?
HARVEY: I cannot remember. I don't even remember. It was only when this was made available as part of the Inquiry that I -- I saw it. I have not had any response made available to me. I could only imagine, having received this, that I would have discussed it either with Alison Kelly or with Sue Hodkinson.
LANGDALE: We haven't seen a reply anywhere, Mr Harvey, as it sounds like you have. You have just seen the
email for a second time. This email is a standalone, as far as we can ascertain?
HARVEY: I mean, I can honestly say that I would not have forwarded that information to her. It would not have been appropriate.
LANGDALE: Somebody has told her about this meeting, though. There is somebody in her group within the hospital who have informed her, on the face of it, that there's been some kind of discussion involving a junior doctor. That appears to be information she has of sorts there?
HARVEY: Yes.
LANGDALE: When you got that, did you question why somebody who was suspected of a crime, was having access to that information and, furthermore, feeling confident enough to ask you, as the Medical Director, for further information?
HARVEY: I -- because I can't remember this email, I can't remember what action I would have taken on result -- on receipt of this email.
LANGDALE: What made you think it was inappropriate?
HARVEY: The tone of the email. The approach to me asking for that information.
LANGDALE: What is it about the tone?
HARVEY: It's being made as a very sort of personal approach. It is -- the tone of the writing within it and, also, it is the nature of the request that is being put in there.
LANGDALE: You had obviously met her at the meeting on 22 December because we have been to those notes. Had you met her on other occasions before receiving this?
HARVEY: The only time I ever met Letby was in meetings with others in Tony Chambers' office.
LANGDALE: That can come down. Can we have please INQ0005795. This appears to be you requesting information or Ms Hodkinson providing it for you in preparation for meeting with the Consultants, can you see? You are being provided with information from the grievance hearing, which you can add to the briefing paper for the meeting. Can we see there you are asking for or receiving -- perhaps you can tell us what you are asking for -- comments about the behaviours of the Consultants. Do you know why you were asking for that information?
HARVEY: I'm -- I can't see anything in that email to indicate that this was being sent to me in response to a request. It would appear that it was sent by Mrs Hodkinson in preparation for a meeting that I was to be involved in.
LANGDALE: So you received that. What did you make of
all of that coming your way?
HARVEY: I understood that this was advice from Sue Hodkinson with regard to actions to be taken as a result of the grievance.
LANGDALE: It looks as though it's information being provided to you before the meeting on 6 February 2017, if we go to that. INQ0014279, page 1. This is another meeting you are at with Mr Chambers, as well, with Letby's parents, and we see at page 3, you say, halfway down the page: "I met with SB and RJ at lunchtime. We talked about how we needed to support you and the mediation process. All members of the team will need a level of mediation/remediation process. They accept they have not acted professionally." That is what you say to them: why?
HARVEY: I would only say that in response to the conversations that I had with Dr Brearey and Dr Jayaram. I -- on reflection, and particularly with regard to one of your earlier comments and questions with regard to how they might feel -- accept that they might feel forced into making that concession when that actually wasn't appropriate.
LANGDALE: Were you bullying and intimidating them, Mr Harvey? If they are accepting in conversation with
you anything they have done is inappropriate, I suggest you were bullying and intimidating them?
HARVEY: I wasn't intentionally doing that.
LANGDALE: Can we have a look please at INQ0003119, page 1. This is a letter from Dr Jayaram on 2 March to you: "I am still very uncomfortable with all of this." He sets out why he thinks it's inappropriate that they are being invited to mediation process. It says: "During the course of the fact finding process for the grievance someone reported that I and two other Consultants had been heard to say potentially slanderous things about LL. You yourself have not seen in writing what is alleged to have been said, due to the documents being confidential, have no knowledge of who reported this, nor of who subsequently fed this back to LL. It is unclear as to whether these were remarks made in formal minuted meetings or remarks made in private that were overheard and reported back, or both. It's also unclear, as you have not seen the grievance report, how accurate these reports may be and how much may have been lost or exaggerated in translation. "As Steve and I are the only paediatricians named in the grievance, we alone have been asked to engage in mediation process. However, if the mediation process is
to facilitate the reintegration of Letby and to be an enabler for safety in working, we suggested all seven Consultants should be part of the process, as all of us have expressed the same sentiments explicitly. You explained the recommendation for only two of us to be involved came from the external person who had been asked to review the whole grievance." He concludes: "After our meeting, it's become clear there are still no clear explanations for at least eight of the unexplained collapses and deaths and possibly more cases that have not yet been removed", and that they had raised the concern eight months ago. When you read that, did you think, "This is nonsense, they shouldn't be mediating"?
HARVEY: I firstly wasn't aware that the mediation was a voluntary process. When I read this, I was uncomfortable. I cannot say for sure when but I had conversations both with Tony Chambers and Sir Duncan Nichol expressing concern about how the grievance process had run and the effect that it had had.
LANGDALE: Dr Jayaram says he spoke to you in an unscheduled face-to-face discussion, at some point between his initial meeting with the mediator and the planned meeting, and he again expressed concerns about the mediation process and Letby returning to work. That's right, he did have a follow-up discussion, didn't he --
HARVEY: Yes.
LANGDALE: -- as well as that? He says: "During this discussion, I said to him that, if, as was suggested, the behaviour of some Consultants fell short of GMC standards, it should be his duty as Medical Director to report those Consultants to the GMC, and he queried how he could allow me and other colleagues to continue to care for babies if we behaved unprofessionally." Do you remember that?
HARVEY: I don't.
LANGDALE: The GMC is floating around there, isn't it, we have seen it in conversations, in discussions, there is references to you referring to the GMC.
HARVEY: The only references that I made with regard to the GMC were reporting the threat from Letby's father that he would report them and in trying to support Dr Jayaram and Dr Brearey in avoiding that process, I am and was only too aware of the impact, even on doctors who have committed no wrong, of undergoing a GMC process, and I was doing everything that I could to try and prevent them having to go through that. At no point
did I ever threaten any of them with reporting them to the GMC.
LANGDALE: Let's look at page 2 of the document on screen. This is where you follow up and say: "Thanks for coming in." You say: "Please can I counsel you to make effort to attend the preliminary meeting with the facilitator. I think this gesture would go a long way to protect you from a possible referral to the GMC from other parties, which, having supported many doctors have done no wrong, even then isn't a comfortable process." You were the responsible officer, weren't you, around GMC referral?
HARVEY: Yes.
LANGDALE: You should have been saying, "You have raised safeguarding concerns, don't worry about a GMC referral, Dr Jayaram. Don't even think about it?"
HARVEY: Um.
LANGDALE: Here you are passing on, you say it was Mr Letby's view, rather than yours, but passing on "You may have a referral"?
HARVEY: I don't think that that would have captured what would have happened, even had it been safeguarding, if a party from outside had made a referral to the GMC,
the GMC would be duty bound to contact the doctor and initiate some form of investigation. I'm fully aware of the impact of even receiving that first letter from the GMC on doctors. I had had a number of phone calls from doctors in the evening or at the weekend because they just received a letter and the impact on them. And safeguarding or not, there would have been an initial response from the GMC if, for example, Mr Letby had written making a complaint.
LANGDALE: In the informal conversation you had with Dr Jayaram encouraging him or telling him to have mediation, he says that you said to him he didn't need to worry, if Letby came back to work on the neonatal unit, it would be unlikely she would stay at the Countess very long and she would probably apply for a job elsewhere, as soon as possible. Can you remember saying that?
HARVEY: I don't recall saying that, no.
LANGDALE: Well, you wanted her back on the unit, didn't you, and you knew that the relationships were not harmonious on the unit?
HARVEY: I -- at that point, I don't think we had completed all our investigations and, as Medical Director, I wouldn't have been comfortable with her going back on the unit until we had completed those.
LANGDALE: Option 4 was -- the meeting we went to earlier was approved by the Execs. The plan was she could be back on the unit reviewing competence and the like, and that is what you expected in due course?
HARVEY: I -- I can't remember the option paper and certainly I wouldn't have been comfortable with that and we had -- until we had completed all our investigations.
LANGDALE: But if she got to the point that she was back on the ward, and you were comfortable with it, would it be logical in your view that she may not be and would have left anyway and gone elsewhere?
HARVEY: Sorry I didn't catch the last --
LANGDALE: The suggestion that you said, that she, if she came back on to the unit, might look for a job elsewhere, if she was back on the unit and you were satisfied that she could be back on the unit, do you see that she may still have wished to leave because the relationships were so fractured by then between her and the doctors?
HARVEY: If that was the case, yes. But I don't believe that would have been the case, given the subsequent events.
LANGDALE: No. But the comment Dr Jayaram has made resonates with you thinking, if she was okay to go back on the ward, she might still choose to leave because the atmosphere is not very good. That is the kind of remark you may well said him: go to the mediation, if she comes back she will probably leave anyway?
HARVEY: I don't recall making that comment.
LANGDALE: There's an Executive meeting on 14 February. Can we go, please, to INQ0003379, page 1. See at the top, it's recorded there "What are they plotting": "Wondered what they are plotting." Do you know what you were meaning by suggesting "plotting", what were they plotting: what were you thinking?
HARVEY: I was expressing frustration at trying to understand the basis of -- I believe, this relates to a letter. "Plotting", I don't think, was used as any sort of implication of underhand. It was simply a way of trying to ask what was the underlying motive for the letter?
LANGDALE: It was an us and them situation, wasn't it: the Execs versus the Consultants?
HARVEY: It is one of my great regrets that, at this stage, it was reaching that position, yes.
LANGDALE: There was secrecy: secrecy from your side in terms of information that you were sharing with them; and from their side, having emails deciding what to do about that?
HARVEY: It reflected the fact that neither was feeling entirely comfortable with the other and that was a dreadful situation to have had at that time.
LANGDALE: If we see, halfway down, it said: "Steve Brearey said to IH, 'may need representation'." You tell us in your statement at paragraph 609: "I vaguely recall Steve Brearey suggesting that he felt he was being challenged and may need representation." Can you remember what he needed representation about, or thought he did need representation about?
HARVEY: I could only imagine that it was with regard to the grievance.
LANGDALE: They felt their jobs were on the line, they were on the line, didn't they?
HARVEY: According to their subsequent evidence, yes. That wasn't apparent at the time.
LANGDALE: Do you think the combination of you, Mr Chambers and Ms Kelly could be an intimidating group of Execs?
HARVEY: I wouldn't see us as intimidating, no.
LANGDALE: Can we go to INQ0006890, page 236. We have been to this but just look at the top paragraph. You suggest there:
"I repeat my comments of yesterday at the top. I gather an apology letter was forwarded to Lucy yesterday and I would like to thank your part for that. I repeat my comments that we must separate the concerns raised and the reviews from the grievance procedure." What did you mean by that?
HARVEY: I would say it's -- it's apparent in that sentence that as -- that the grievance procedure was running in parallel to the other reviews, the College review, the Hawdon Review, McPartland, and I think, as others have said, retrospect, that wasn't an appropriate position. The grievance procedure should have been halted. My level of knowledge of grievance procedure at that time wasn't such that I challenged it. I -- I should have done. I think that is an inappropriate line but that was my understanding at the time.
LANGDALE: You were aware, as a consequence of the grievance procedure, Letby had sent a letter of communication to colleagues, saying she had been fully exonerated, exonerated of any concerns or complaints about her?
HARVEY: I was subsequently aware of that letter.
LANGDALE: So very difficult to separate that from the grievance procedure, where it was being deployed as
an answer to the concerns raised --
HARVEY: Yes.
LANGDALE: -- namely that the Consultants had behaved unprofessionally, were discredited. That was the effect of the grievance process, wasn't it, to discredit the Consultants: you did it in your grievance interview, others did it to follow?
HARVEY: I don't believe that I did discredit them.
LANGDALE: You discredited them in the meeting with Mr Letby, didn't you, you discredited them to him?
HARVEY: I -- I would accept that it wasn't the right thing to do, to run the grievance procedure in parallel with the continuing reviews.
LANGDALE: Well, it allowed you to express your frustration and hostility to the Consultants' position, didn't it, and their behaviour. You were frustrated by their continued requests around Letby not being permitted back on to the ward, weren't you?
HARVEY: I had a degree of frustration but that wasn't with regard to supporting her back onto the ward. My frustration was with regard to trying to pull everything together to get to a consensus.
LANGDALE: INQ0003073, page 1. Dr Brearey didn't go to the mediation, we know that, and he sends a letter to you on 6 March expressing dissatisfaction with the way the Trust has handled it. I will give everyone time to read that page and then if we can scroll over to the concluding paragraph on the second page. (Pause) It's page 3, I think. There's the end of the letter, reminding you of Dr Subhedar stating that he too was concerned about the cause of death and/or deterioration, remaining unexplained. So you were having a clear pointer from Dr Brearey there, weren't you, that you hadn't, in any sense, examined the cause and concerns and the suspicion around Letby, and it was time to refer to the police. He doesn't say "refer to the police", I am saying you reading it, you are being told very clearly there, despite the pressure being put on them, and Dr Jayaram said he felt under duress, having spoken to Mrs Hodkinson to do the mediation, they remind you, again, what they are really concerned about: babies on the unit, if she's going to come back.
HARVEY: They do, and it was apparent from this letter that the chances of a consensus were not there. I'm unsure of the timing of this letter, with regard to the letter requesting that we go to the Coroner. I believe there is a fairly close temporal relationship -- and it was that combination and the subsequent meeting that I had with Dr Subhedar and with the paediatricians that
caused me to advise the Executives that we were in a position where there was no alternative, in my opinion but to go to the police.
LANGDALE: Can we move on now to preparation for an extraordinary Board of Directors meeting, 10 January 2017. If we go to INQ0003518, page 1. Turn to page 2 when we get there. That's what you were inviting the Board to do: "Support the Executive in assisting the staff member's return to work on the neonatal unit, the reviews having found no evidence of a single person's culpability and in implementing the recommendations of the grievance investigation." So January 2017, no investigation into the allegations that Letby's deliberately harming children and you make that recommendation to the board. And if we go to the meeting notes INQ0003237, page 3, one comment, if you can expand on it, please. Paragraph 5: "Mr Harvey said that when thinking back to activity one alarm bell was how many cots the unit had over their allocation, the number of low birth weight and gestation babies and this strengthened the case that it was due to the intensity of the number of babies coming to the unit."
What's "the case"?
HARVEY: I think it, it refers to the fact that one explanation or one factor in the increase in the mortality would have been the increase in intensity.
LANGDALE: That had nothing to do with the deaths, the sudden and unexplained deaths that needed baby-by-baby investigation and explanation, did it, and you knew that by this point? It was irrelevant. It was irrelevant to the issue that needed investigating and irrelevant to each baby that had died suddenly and unexpectedly?
HARVEY: It was one -- one feature of a whole range of multi-factoral elements. There is obviously a great deal of limited detail within this board report in terms of not that it didn't report what was said but a limited amount was -- was said. Certainly at this time, we were still faced with a situation where we had an increased level of mortality, that we were still trying to come to understand the cause, that we hadn't yet had -- completed the investigations. We were waiting for final reports. And irrespective of the final recommendations, I would not have been comfortable with considering as I have already said the return of Letby until those
reviews and investigations had been completed.
LANGDALE: You did not say at this meeting or subsequently, loud and clear, that the paediatricians were concerned that there was a nurse killing babies and the RCPCH Review had said it needs to be investigated or had said, some time previously, that it needed to be investigated?
HARVEY: I wasn't explicit in this meeting. But this had been discussed with the board previously. I didn't feel that we had anything else coming out from the reviews to that point that would have supported that assertion. That was my, my honest view at the time I made this report.
LANGDALE: We will be hearing from the board next week, Mr Harvey. You have seen and referred in your statement to Sir Duncan Nichol saying he felt misled. There are a number of people that have told the Inquiry they felt misled by you. Can you understand why Dr Hawdon, Dr McPartland and Sir Duncan Nichol would all be saying they had been misled by you?
HARVEY: I struggle to understand why they would say they had been misled other than the fact that it is extremely easy to make those comments. It is extremely easy to view one's views at the time on the basis of hindsight and knowing how this ends and I don't think that is a true reflection of the situation that was presented at the time.
LANGDALE: Let's look at a board meeting on 14 July 2016, INQ0004216. This is where it's being discussed whether the police should be contacted. Look at what Mr Wilkie says on page 5. The whole board meeting will be uploaded in due course but look at number 5: "Mr Wilkie stated he wanted to better understand what are the critical issues that mean it's not appropriate to engage the police as he could see disquiet. Mr Brearey replied that this has been discussed after the last meeting with Mr Harvey. There is a considerable amount of discomfort regarding the member of staff. It was felt that this was dragging on and this would not solve the problem. There is a fantastic team and he morale is very low. They will see a member of staff being closely supervised for no apparent reason. People do have anxiety about that and there is definitely discomfort." Over the page: "Mrs Hopwood asked how practical it was for the staff member to work under supervision." If we go to page 7, we see Mr Wilkie said that:
"As a layperson who did not know how effective the measures will be and asked how confident the Trust were that we are removing all risk. Mr Chambers replied there will be weekly monitoring on neonatal services at the Executive Directors Group." Did you tell the board that at this time you had been storing samples, two of the samples, the TPN bags that Dr Green came to collect and were stored at the hospital in case they were used, needed to be used further? Did you ever mention that?
HARVEY: To the board, no.
LANGDALE: Why not? What does that tell you, that you are keeping samples?
HARVEY: That was simply a reflection of the concerns that had been raised and Dr Green had informed us they had been kept. Dr Brearey subsequently informed us that the pathologist had no need of those, those samples.
LANGDALE: Then we see at page 7 at the bottom: "Sir Duncan stated there is a major future exercise to look at everything and noted the Trust is committed [when it comes] to do this. In the meantime the previously expressed concerns about the individual, actions are being taken. It's agreed that these are reasonable as we cannot see a single hypothesis. We have to move forward in this way if the majority
agrees." Dr Jayaram replied: "The only alternative is to go straight to the police and that they would want hard evidence." Who was the person propelling the notion that you needed hard evidence or substantiation and proof, is that something you were saying, that you needed something clear?
HARVEY: Well, that was a statement made by Dr Jayaram.
LANGDALE: Yes, and it's something we know you have been saying. You keep saying, "There wasn't evidence. There wasn't evidence, that's why we had to go and get evidence and go and get these reviews". That was something you believed, didn't you: you needed evidence rather than suspicion of a concern?
HARVEY: I believe that that was -- that was the belief of most or all of us. I would highlight on the page before that Dr Jayaram, there is reference to Dr Jayaram agreeing with the actions that they were appropriate and proportionate from that meeting and, at the risk of repeating myself, I have already agreed that I regret that we didn't speak with the police in June/July 2016.
LANGDALE: Do you regret that you weren't more open with people around you so that they could make their own decision about whether that was necessary or not?
HARVEY: I believe that I was open in the conversations that I had with individuals, within the limit of the extent of the information that we had.
MS LANGDALE: My Lady, this might be a good moment. May I suggest a shorter lunch break, if that suits people.
LADY JUSTICE THIRLWALL: Yes, certainly, 45 minutes? Very well, so we will take the lunch break now and we will come back at 1.50.
(1.06 pm)
(The luncheon adjournment)
(1.48 pm)
LADY JUSTICE THIRLWALL: Yes.
MS LANGDALE: Mr Harvey, can we move, please, to the topic of what the parents were told, and can we have on screen, please, INQ0003100, page 1. This is an internal communications document, Mr Harvey, copied in to the Executives and it's clear that the hospital were sent an email that the newspaper was going to publish a reference to the Royal College reports and invited comment. We see here a draft comment in paragraph 3: "Medical Director at the Countess of Chester, Ian Harvey, said, 'We have done all we can to keep parents informed and our clinical teams will be contacting them again ahead of the review being published to make sure a copy is available for them. 13 detailed independent case note and pathology reviews will also be shared with the families on an individual basis. Our work on this has only completed within the last two weeks and now we have the full and accurate information to share with parents. We are sorry for any distress or upset this review may have caused. Those families affected have been through so much already'." First of all, did you approve that comment in response to the publication?
HARVEY: I -- I will have done.
LANGDALE: Was it true?
HARVEY: It was true to the best of my knowledge.
LANGDALE: "We have done all we can to keep parents informed": that simply wasn't true.
HARVEY: At that time, that was how we felt about the situation. In retrospect, I think we all -- I, as well, as an individual, but also as the Executive Team -- acknowledged that, actually, there was more that we could have done.
LANGDALE: You didn't keep the parents informed at all, so that wasn't true but what you say is because that's what you thought was the best thing to do? Is that your
answer, because the parents hadn't been kept informed at all, had they?
HARVEY: We had contacted, to the best of our ability, to inform that, because of the concerns, a review was ongoing. We obviously made it clear that we would be contacting again to ensure that copies of the review were going to be available for them to review.
LANGDALE: Let's look at the letter. INQ0014411, page 3, the template letter, dated 8 February, page 3. That's a letter, isn't it, from you, which follows the fact that you know it's going to be published in The Times, letting the parents know about the RCPCH Review and on Friday last week, again pursuant to knowledge that it was going to be published, parents are attempted to be contacted; is that right?
HARVEY: Yes.
LANGDALE: So your hand was forced, wasn't it, Mr Harvey, by the press publishing the RCPCH or the fact of the RCPCH report and something of its contents and, at that point Sian Williams, was tasked with trying to contact the parents because it was going to come into the public domain; is that right?
HARVEY: We had planned that we were going to be sharing the review with the parents. I obviously haven't got that plan with the timescale.
LANGDALE: Were you planning to share it all, the comments about the nurse. You had had it since 28 November and in draft since 18 October. Were you planning to share with all the parents of the babies the doctors were concerned about, the suspicion of the nurse?
HARVEY: I think the intention was that we were going to be sharing the version that was described for dissemination, so that wouldn't have included the green text. We had a plan for that sharing and, yes, our hand was forced, insofar as we had to be precipitate in how we got the report out and shared to parents because of the impending publication.
LANGDALE: We will look at another letter INQ0012619, page 3. So it is a different INQ, INQ0012619, page 3. The template: "Following on from your conversation with our Deputy Director of Nursing, Sian Williams, please find enclosed a copy of our report. During this telephone conversation, it was explained to you that we asked for this external assessment from the Royal College of Paediatrics and Child Health and the Royal College of Nursing. This step was taken because we wanted to better understand why there had been a greater number of
deaths than we would normally expect on our neonatal unit. In the report, it describes no single causal factor to explain the increase we have seen in our mortality numbers. It makes a total of 24 recommendations across a range of areas, including compliance with standard staffing, competencies, leadership, team working and culture ... We are desperately sorry for any distress or upset this review has caused." This letter covered up the concerns that were raised by the paediatricians and the concerns that the RCPCH fed back to you about allegations of misconduct not being investigated, didn't it?
HARVEY: I would dispute that it covered up any allegations that the Royal College made. I would refer, again, to their reference to gut -- "gut feeling". I do not feel that the Royal College report was explicit in any way. I believe that that had a significant role in directing us. I believe that this letter summarises the situation as it was on 8 February when it was dated.
LANGDALE: What is your explanation for only sending it on 8 February, when you had had the report for months and when there was publication of the report through the press?
HARVEY: I -- I have no true recollection of why there was that delay. I can only surmise that that was to allow time for the Casenote Review, as well, in that the Royal College Review alone would obviously leave a lot of questions.
LANGDALE: Parents gave evidence, which you will have heard, varying from: first of all, there hadn't been attempts to really contact them because the hospital should have known where they were and weren't contacting them; secondly, that they had a letter delivered by black cab just hours before the report was published; in another case, where someone was a patient at the hospital in a subsequent pregnancy, nobody tracking her down and telling her about this, while no doubt comms and everyone else is thinking what to say. What do you say about how this was communicated and when?
HARVEY: As I think we, I -- I have already said, I am fully aware that the standard and the nature of our communications was way below the standard that was -- was expected of us and that we should have maintained. I don't think that it was appropriate, I don't think that it was of a high enough standard and I don't think that it actually truly recognised the distress that these parents and families would be suffering.
LANGDALE: Was it deceptive, in that it did not communicate the suspicion and concern that their babies
had been deliberately harmed?
HARVEY: I do not believe that it was deceptive. I believe that it was stating the position as we understood it at that time.
LANGDALE: You have said you hadn't communicated before this time but, having opened the channels of communication, you needed to be transparent and candid about what you were really dealing with at the Trust, didn't you?
HARVEY: I would refer to comments made by both Sir Robert Francis and Mr Medland, that we were faced with intersecting and clashing duties and that influenced the nature of communication. I -- I'm not sure that we got the balance right.
LANGDALE: What's the balance, what's the competing duty, when it comes to being open and honest with parents about their babies and their babies' injuries and deaths; what are you balancing with that?
HARVEY: Well, this, I think, was what Mr Medland referred to as the -- the differing duties.
LANGDALE: No, you tell me, not Mr Medland, what was the other duty for you?
HARVEY: For me, it was duty of candour but also a duty of care, and it was that intersection that I think proved difficult for us.
LANGDALE: Duty of care to who?
HARVEY: Well, duty of care to staff.
LANGDALE: So you were balancing candour to parents of babies with the duty of care to Letby?
HARVEY: And I would say that that -- yes, at that point, that was a factor. It is very easy, with hindsight, knowing what we know now, to say, well, as has been regularly said, that that was obviously completely wrong. But that wasn't the situation that we were faced with at the time and, until such time as there was clarity, I believe that there was that conflict for us. And it wasn't just for me: I think it was for all of us and I think that, and I hope that, something that will come out of this Inquiry is some clarity for those who follow us with regard to how to get that balance right.
LANGDALE: When they did see reports, because, you say, of the duty you had to staff, that's why you removed the green text, wherever it went: to the parents, to the CQC, in due course, and to external regulators, because duvet you had to Letby; is that the position?
HARVEY: No. I'm not sure. I wasn't in direct contact, I -- with the CQC, I wasn't their point of contact, so I'm unsure at what point we shared the full report with them. I think I have already conceded that
I was slow in sharing the complete report with specialised commissioning.
LANGDALE: Mother C, she's represented with other families in this Inquiry, so I will ask you this briefly, she wrote to you directly, didn't she --
HARVEY: She did.
LANGDALE: -- as a bereaved parent and following the publication of the review, and you had a meeting with her; do you remember that?
HARVEY: I do.
LANGDALE: You do: you do remember that?
HARVEY: Yes.
LANGDALE: What did you say to her at that meeting about what was happening?
HARVEY: I -- I don't have any notes of that meeting and I cannot recall the detail of the conversation.
LANGDALE: Were you very clear after the meeting that she would want to know what the hospital knew about her baby, in other words she would want candour and want to know, moving forwards, what had happened and what was being done?
HARVEY: Yes.
LANGDALE: Did you fulfil that obligation of candour with Mother C, and indeed all of the other parents, moving forwards from that time, in terms of telling them about the risk that had been identified in their babies' cases from a particular nurse?
HARVEY: At the time that that was ongoing, given that we were faced with an increase in mortality, that at that point there remained no definitive evidence, no, we did not raise that as a specific issue.
LANGDALE: Did it ever occur to you that the parents may have relevant evidence to give or to assist in the investigation that was necessary?
HARVEY: To my regret, no, it didn't.
LANGDALE: You know that Dr Hawdon's report was sent as a simple page with an attachment of medical notes, a page or so, that related to their child, don't you? That is all they got, a little explanation of the report, to help navigate why it was done, what its purpose was. They simply got a couple of pages that related to their child; that was inadequate communication about that review, wasn't it?
HARVEY: It was sent with a letter recognising that they might not be able to interpret the details of the report and that we were happy to arrange meetings to go through that with them in detail and explain the meanings of those.
LANGDALE: You never did, did you?
HARVEY: I fully accept that that communication was
both crass and inappropriate. We went through -- we went along that in completely the wrong way. I -- sorry, I have lost my line -- train of thought now. It was done in completely the wrong way. It was unthinking and insensitive. I would only say that we were keen to share the information as soon as possible. We were aware that there had been inordinate delays but I accept that that doesn't excuse the way in which this was done.
LANGDALE: It's not simply the way in which it was done, it was the information and the evidence they could have brought to the problem you were facing: they had relevant evidence to give, didn't they?
HARVEY: It is now apparent, yes.
LANGDALE: The mother of Baby D [Child D], who had pushed for the Inquest, was always of the firm view the Sudden and Unexpected Death could not be explained and something must have happened. Had she seen the green text, she would have picked up the phone to the police herself, most likely, wouldn't she? You deprived the parents of an opportunity to have an input on the issue the hospital was addressing?
HARVEY: I -- I don't feel that I can speak to what might have happened but I accept that the Families potentially had significant information that they could
have contributed.
LANGDALE: As a Medical Director, a medically qualified person, why didn't you choose to speak or meet with a number of them, as soon as this had happened and the communication channel had been opened? Were you worried because you had that duty, as far as you were concerned, to the member of staff and you were not going to tell them about the suspicions or concerns about her, because that's the decision you had made?
HARVEY: No, absolutely not.
LANGDALE: Well, you had made that decision, hadn't you, not to share the suspicion and concern about Letby? That was a conscious decision, Mr Harvey, and one you stuck to.
HARVEY: Well, we are, we're discussing arranging to meet the Families and, to be perfectly honest, it -- whilst planning to meet with individuals, I hadn't considered that we should actually meet them more -- in a more timely fashion as -- rather than reporting what was found as a fact finding, and that's a significant omission.
LANGDALE: Did you give thought to when that more timely occasion might be, as the months passed after February?
HARVEY: I'm sorry, I don't understand the question.
LANGDALE: When did you think that would be? If it
wasn't going to be in February, early February, when were you going to meet them?
HARVEY: I -- I believe it would be when we had -- we were in a position to pass on all the information, so that we weren't leaving any details hanging or unanswered.
LANGDALE: That can come down now, thank you. I am sure you will be asked more questions about that topic. I am going to ask you now about finally going to the police. Can we have on screen, please, INQ0003159, page 1. This is a letter from Mr Chambers to Dr Jayaram, setting out that: "The Trust first advised the Coroner of Cheshire on Friday, 8 July and subsequently kept him informed. I can confirm that a copy of the report was shared with the Coroner on 20 January, following which a meeting with Mr Rheinberg, the Trust Medical Director and Director of Corporate and Legal Services, was held on 8 February." If we go over the page, Mr Chambers states: "There has been a thorough internal and external review. Explains the RCPCH review, independent external review, of the 13 deaths ... thorough review of activity and acuity levels and staffing profiles." You attended the meeting on 15 February 2017 with the Coroner, yes?
HARVEY: Yes.
LANGDALE: Can we have that on screen, please, INQ0002048_0102. You will no doubt have seen this attendance note. Can you just cast your eye over that and tell us if you agree that's an accurate note of that? (Pause)
HARVEY: I believe so.
LANGDALE: That is an accurate note? We will be hearing from Mr Rheinberg next week and, whilst it may be the case the green text went through to the Coroner's office, he has no recollection of reading that before the meeting and was reliant on what was said in the meeting. There is nothing that's said verbally that puts centre front, does it, that there are suspicions and concerns of a nurse deliberately harming a baby?
HARVEY: I recall that either Mr Cross or I, in passing the paediatricians' letter across to Mr Rheinberg explained the background to that letter and the paediatricians' concerns. I'm also aware that there is documentation within the Inquiry that confirms that part of the bundle that Mr Rheinberg received was actually the full RCPCH Report, which included reference to the paediatricians' concerns.
LANGDALE: Thank you that can go down now.
If we move then to a meeting on 27 March 2017, INQ0003150, page 1, and, to put it in context when it comes up, this is when the paediatricians describe feeling desperate with their jobs under threat. Dr Brearey says he's looking for another position in another hospital, and Letby had come on to the ward to have tea and reorientation updates. That's where we are at in the timeline. We see on page 1, Dr Jayaram: "There have been deaths ..." Then the next page: "JM [Julie Maddocks]: given the information on the balance of probability, illegal activity has caused the deaths." You say: "Or reasonable doubt." Then over the page, page 3, you say: "You have had access to everything, including the reference to the HR processes that were redacted." You are referring there, they have seen the green print of the RCPCH: "Refer [over the next page, at page 4] with three options: contact the police; internal with NS support ..." What does "NS" mean?
HARVEY: I can't say, sorry.
LANGDALE: "... or other experts conduct further review, eg Janet Rennie, if anything to be gained. "Dr Jayaram: What would be the level of depth?" Then page 5, you say at the bottom: "Stephen Cross and I have expressed and advised the teams concerned. We met the Coroner. This is the second occasion we have met with Mr Rheinberg and Alan Moore. We have shared the review and a copy of your letter and specifically called out the team's concerns. "NR advised we should leave it with him as he was reviewing his jurisdiction. It's been one definite Inquest and two potential. No indication of reopening any of the cases. "Mr Chambers: he phoned police or acted within normal Inquest process. He has had everything we and you have had." Over the page, you saying: "Absolutely, why we met with him. At some point we need to meet with the parents." At that stage, what were you thinking you needed to meet with the parents to say?
HARVEY: At that point, I was recognising that we had not had the opportunity to meet with the parents to discuss that -- the reviews that we had had to date.
I believe the background of this meeting is that it followed the meeting that I had had with Dr Subhedar and some or all of the paediatricians having met the Coroner, which they expressed their continuing concerns, at which they presented those babies for whom they still had major concerns and, on the back of which meeting, I felt that there was nothing further for us to do, short of speaking to the police. And I believe it was on the back of me describing that situation to my Executive colleagues and to Tony Chambers that this meeting, with some of the paediatricians and with the network, was scheduled.
LANGDALE: The conference with Mr Medland was scheduled, wasn't it, for the paediatricians to meet him and, if we go to INQ0014378, page 1, we see your background summary document that was sent to Mr Medland, as part of his instructions. We see on page 2, at the top: "Two Triplets born, died on 23rd and 24th. Exacerbated the concerns there being no obvious cause for the babies' collapse and it was alleged that the nurse referred to above was involved in the care of these babies." Why do you say "alleged"?
HARVEY: Because I didn't know for sure what level of care, whilst -- had -- had been associated with her at that time.
LANGDALE: The 30 June meeting made it very clear to you that she was looking after Babies O and P and, indeed, she had entered the Datix, which was the incident reported for P. You knew that she was the nurse who was present with O and P., so why do you say "alleged" and that you didn't know about the association: were you minimising it, playing it down?
HARVEY: No, absolutely not.
LANGDALE: So you had forgotten when you wrote that, is that the explanation: you had forgotten?
HARVEY: Sorry.
LANGDALE: You had forgotten that she was the nurse caring for O and P when you wrote it?
HARVEY: I was aware that she was on the unit. I -- I wasn't and hadn't checked to what extent she was responsible for their care but was making clear that she -- she was there.
LANGDALE: On page 4, at the end the summary: "In summary, we can demonstrate we have taken the concerns raised seriously. We have open and transparent with the Coroner, our regulators, parents and the public." Pausing there, I think you accept you weren't open and transparent with the regulators or the parents and,
therefore, the public; is that right? You now accept that you were not open and transparent with the regulators, parents and the public; you say you were with the Coroner?
HARVEY: I -- I -- I -- I accept that we -- we weren't as open as we should have been. I believe that we were open and transparent with the Coroner. I believe that we did pass on all the information to him.
LANGDALE: You covered up from the parents and the regulators the suspicions and concerns about Letby?
HARVEY: I wouldn't describe that as covering up. I believe that was based on the -- the conflicting cares that we were associated with at a time when we still weren't completely sure what the situation was.
LANGDALE: That was what you describe as motivating the cover up but you agree you withheld that information and concealed it because of the reasons, you say, that you had a duty of care to a member of staff?
HARVEY: I wouldn't describe that as a cover up.
LANGDALE: Mr Cross' document, INQ0006123, page 1, he summarises it thus for Mr Medland, on 3 April: "No evidence to justify criminal investigation. However, in the spirit of openness and transparency the matter is being reported to the police." Was it your view at this time that it simply needed
to be reported to the police with a view to excluding any unnatural causes. Rather than reporting concerns, you just wanted to exclude unnatural causes, something like that?
HARVEY: No. I wasn't -- I wasn't aware of this rationale document. I hadn't seen it until this Inquiry. I think my view was summarised in the last paragraph of the document that has just been taken down, my summary, and that was that we required the assistance of the police.
LANGDALE: 13 April 2017 is a board meeting. If we can have, please, INQ0003236, page 1, Mr Medland attends. Page 3, Mr Wilkie is concerned, look at the top: "... if we can truthfully argue there has not been a delay and it has not been possible to do sooner." You say: "Due process. We have done everything in a reasonable and explicable order but are beholden to other delay." Sir Duncan said: "The board need to decide if we feel the work took too long. Did it answer Dr Hawdon's report?" Mr Harvey said: "That's why I met with the Consultants with the review, to come to one view. Their view doubles the
number of cases where there are concerns and they could not define what they felt was a forensic view." So you are saying there you know that Dr Hawdon's report -- the Consultants are still concerned and they have more cases where there are concerns, just as Dr Subhedar said. Then you say they could not define what they felt was a forensic review. Who are you suggesting didn't know how to define what was a forensic review?
HARVEY: I suspect that that is probably a typo and probably reflects Dr Hawdon's response that Mr Medland -- excuse me -- had picked up on. Dr Hawdon had made reference to a forensic review and Mr Medland had advised that we ask what was meant by a forensic review, in her opinion, and the response from Dr Hawdon was, "Well, it can, effectively be whatever you want it to mean".
LANGDALE: If you look at page 5: "Mr Harvey stated he met with one of the sets of parents and their concern was that we will turn their world on its head and they would start grieving all over again." To be clear, that wasn't any of the parents of the babies named on indictment, but you are saying that you spoke to some parent, did you? You don't give us a name; tell us what you mean there, who have you spoken to?
HARVEY: I'm sorry, how do you mean?
LANGDALE: You are telling the meeting you had spoken with a set of parents who was concerned that their world would be turned over and they would start grieving all over again.
HARVEY: Yes. It was a concern that had been expressed on the back of fresh revelations that had come out in the press. The story in The Times had reopened their wounds, their grieving process, and I was simply highlighting the impact that all of this was having and would continue to have on the parents, and that we needed to be aware of that.
LANGDALE: It would be inevitable that that would turn their world on its head but no one had suggested to you they wouldn't want to know the truth, would they?
HARVEY: And I wasn't suggesting there that we should hide it to protect them.
LANGDALE: So why were you suggesting it at all in this context?
HARVEY: I wasn't. I was highlighting that this was an issue that we needed to be aware of in approaching the parents, that it was going to be a very difficult and a very stressful time. This wasn't an implication
that we should be paternalistic and protect them.
LANGDALE: It's clear over the page, page 6, to complete it: "Sir Duncan added we are still searching for explanations. Not saying she's still in the frame but it is a legitimate point that the forensic review be conducted." So there is still the need for investigation, that is what the Chair of the board says?
HARVEY: Yes, and my understanding from before Mr Medland was instructed, through to this, was this was all a prelude to contacting the police.
LANGDALE: So your view is that, on 13 April, the plan was to go to the police; is that what you thought was going to happen?
HARVEY: My view was that, prior to the instruction of Mr Medland, we were going to the police and I think that is borne out by the final paragraph of the summary document I prepared for Mr Medland.
LANGDALE: Then after this meeting, did you still think that was the case, after this board meeting?
HARVEY: As far as I was concerned, that was our only option.
LANGDALE: Can we go please to INQ0101091, page 739. This is a meeting between Executive Directors,
Mr Harvey, on 19 April 2017 and Financial Officer, Simon Holden. This is his note, Chief of Finance. We see halfway down Executive Directors: "A broader forensic review of four cases recommended, similar to CDOP [Child Death Overview review] to investigate." Were you discussing the Child Death Overview Panel investigating those cases, was that a plan at that point?
HARVEY: I think that is a reflection of one of Mr Medland's recommendations, that a way to approach the police would be through CDOP, on which Mr Wenham sat.
LANGDALE: Why does it mention four cases recommended then. It looks as though there is a discussion of investigating cases or not?
HARVEY: I think that relates to Dr Hawdon's review.
LANGDALE: Next document INQ0003076, page 5. Meeting, Friday, 12 May with the police. If we look halfway down the page: "Ian Harvey has repeatedly challenged the clinicians, asking if there has been any acts which Countess of Chester needed to be aware of which would effectively give a case but repeatedly they have said no." Why did you contribute that to the meeting?
HARVEY: In meeting with the police, I felt it was important that we presented a comprehensive picture.
LANGDALE: Is that comprehensive?
HARVEY: Well, I think the whole document ends up comprehensive. I mean, a single sentence in isolation is never going to be comprehensive but I feel that in subsequent paragraphs there is further detail. This is simply calling out that they had their concerns about the repeated presence of Letby in relation to deaths and collapses but, to that point, they had not, at any point seen, nor did they report, any other evidence that was definitive or even indicative of a malicious act.
LANGDALE: Next page, Mr Harvey. Page 6, third paragraph down: "Ian Harvey added Countess of Chester are mindful they do not want to use Cheshire Constabulary as a HR process for staff. If you place yourself in the mindset of paediatricians to see what the motivation is, there is a strong sense of personal accountability that a clinician feels and when there is no clinical explanation they feel uncomfortable. It is unusual that they have a collective mindset. This is a problem which the Countess of Chester need to manage as it is not a criminal issue." Why did you say that?
HARVEY: I suspect that the last sentence is a typo, in saying that it would be a problem we would have to manage if -- if it was not a criminal issue. I am initially paraphrasing the Coroner in saying -- he told us that he wasn't a QA process for the hospital. I was recognising that we weren't relying on the police to help us with staff but I was also calling out that the paediatricians felt that strong sense of personal accountability when they were faced with a situation which they can't directly explain and with which they are extremely uncomfortable. In this particular situation, the high mortality.
LANGDALE: Page 8, please. You wish to raise two issues at the top. "When the issues were first raised by Stephen Brearey, it was held under the Speak Out Safely policy that he had protection as a whistleblower." Not true, would you agree?
HARVEY: I accept that that was only actually enacted later on in the process, yes.
LANGDALE: Why was it even relevant to raise that?
HARVEY: I -- I think it was just part of a comprehensive conversation and it was to indicate that, certainly, albeit later than should have been the
process, Stephen Brearey had that protection.
LANGDALE: Mr Wenham gave evidence to say that, at the meeting on 12 May, it appeared that the Executives were trying to shut the doors on the investigation; do you accept that?
HARVEY: No, absolutely not.
LANGDALE: When you read the contributions you made now, do you understand why that may be the impression given?
HARVEY: No, I don't because, if you read the notes as a totality, I believe it is clear that Mr Chambers was pushing the police to proceed.
LANGDALE: Your contributions, I am asking you about. As a Medical Director, when you read all of your contributions?
HARVEY: I was simply providing factual background, and I was not trying to influence them one way or the other. I was giving them the basis of coming, and I wouldn't accept that I was actually trying to dissuade them.
LANGDALE: If we go to, please, INQ0014678, page 1, you update Margaret Kitching, NHS England on 12 May: "Just wanted to update you ... they are minded not to hold an investigation. Firstly, they don't feel there is evidence of criminal activity and, secondly, they are mindful of the effects on families." In the second paragraph, you say:
"My own feeling is that, unless there is something that the paediatricians haven't disclosed previously that evidences criminal activity, there will not be an investigation and the police will assist us in a message that will allow us to close down the speculation here and deal with the issues of culture." That sums up the contribution you made to the meeting and what you thought would be the effect of the meeting, doesn't it?
HARVEY: No, it doesn't. That sums up the feeling that I and, I believe he reported yesterday, Tony Chambers had from the conversations that we had had with the police with their what seemed to be reluctance to initiate an investigation, their asking if there was any other organisation that we could take this to and, at the close of that meeting, as Tony Chambers had alluded to, that uncertainty that led to him saying that, before you make a final decision, it is imperative that you speak with the paediatricians.
LANGDALE: Fortunately, of course, Dr Jayaram had communicated directly and, pursuant to a meeting with the paediatricians, the investigation was launched and the paediatricians' concerns were as they had been relayed to the Executives. What do you think was different: why did they understand the need for forensic
investigation and you did not?
HARVEY: I believe that they were in a position both to -- I believe they received further information. I hadn't, at this time, been aware of the reports with regard to Baby K [Child K], although I believe others did. I am also aware that, when we went to the police, we were in a position to say, "Well, whilst it falls short of a police inquiry, we have taken every reasonable step that a hospital could do and we cannot explain the increased mortality to the satisfaction of, at this point, the most important people", that being the paediatricians.
LANGDALE: INQ0107034, page 35. It is a statement of Michael Gregory, Medical Director for Specialised Commissioning. You have accepted, Mr Harvey, that you were not frank with the Commissioners of Specialised Services. Can we just read, please, the reflections from 136 to 141 of this statement. (Pause) He says that he wasn't informed, you weren't open. He said, at paragraph 138: "Specialised Commissioning was not informed that the Consultant paediatrician concerns related to one individual. If I knew this in hindsight I could have pressed the hospital further. However, it's difficult to press on something that I was not informed about and I had limited authority in my role when dealing with the hospital Medical Director. When I raised the possibility of an individual having disproportionate involvement, this was dismissed by Ian Harvey who informed me that they had undertaken multiple reviews and discounted this as a possibility." Paragraph 140: "Throughout the relevant period, Specialised Commissioning was willing to offer the hospital support, however what support we did offer was not being taken. By April 2017, I was growing increasingly frustrated. The Royal College report had a section missing and did not contain the individual case reviews that I thought Ian Harvey had agreed to provide. I felt there was a lack of transparency from the hospital, avoidance of answers and wanting to defer the issues we raised. We were still in email contact with the hospital in April 2017 but, when we asked questions, we did not receive straight answers. My sense was that the hospital was intent in conducting its own process through their board and were evasive in response to our questions. The message that kept coming from the hospital was that we had to wait until they had done things internally. However, what that involved was not relayed to us." Do you accept, from his perspective, that was the
impact of the failure to be open with them?
HARVEY: In the first instance, I would dispute his assertion that he had raised the possibility of an individual with disproportionate involvement. I believe that, in the meeting with him, I had described that. I have accepted that we were slow in sharing information with Specialised Commissioning but I would also dispute the degree to which they pressured to obtain information. It was not a desire to hide anything from them. It was perhaps an inappropriate degree of concern about documents leaking into the public domain before we had had the opportunity to share them with the people who needed to see them, for example the parents.
LANGDALE: We see at paragraph 104 and 105, if that assists you, when he says: "When I pushed Ian Harvey [paragraph 104] on the involvement of an individual staff member, he stated he did not want to go into any more detail until the hospital had made a significant announcement about the decision they had taken to speak to an appropriate body on the following Monday. He did not indicate what that announcement was, nor what the appropriate body was he was referring to. I don't believe an announcement was made on the Monday. Ian Harvey told me he was handling
a very difficult situation and was asking for more time so that he could handle matters within the hospital. When I pressed him as to what this difficult situation was he indicated that the hospital were having issues with the paediatricians." In paragraph 105: "Ian Harvey also seemed to suggest that one clinician had some sort of agenda." Is that accurate?
HARVEY: I don't believe it is accurate, no.
LANGDALE: Why would he suggest that? You did have an issue with the paediatricians and you did have a particular concern about how your lead neonatologist on a ward was going to be able to work with somebody he wouldn't mediate with and didn't think should be there. We have gone through the documents, I don't need to repeat them?
HARVEY: I was -- I was looking at both paragraphs and I would dispute the extent to which I was pushed. I believe that, given that a more senior Medical Director working with Specialised Commissioning was involved, he was in a position to actually enforce if he felt it was appropriate and I -- I wouldn't have, in those circumstances, withheld anything.
LANGDALE: Can we go back to 97 and 98, finally, on this
statement. Paragraphs 97 and 98, which is page 25. It says: "On 10 January, extraordinary board meeting. I did not know about the meeting. My understanding the board papers were not made public or shared with NHS England. I do not believe the board papers for the meeting were public at that stage. I was not aware that an individual was involved or that a nurse had ever been taken out of the unit [this is 10 January]. Had Specialised Commissioning North been told that an individual had been moved off the neonatal unit due to concerns from clinicians, we would also have expected to have been informed of the decision to reinstate her on the unit. "We were never informed there were concerns with regard to an individual nurse. In my role, I had experiences with other Medical Directors in hospitals who have rung me up to inform me about concerns with particular individuals. Informing of these concerns and decisions is part of having an open and transparent culture of patient safety, which I came to believe was lacking at the hospital." He says there he has had experiences of other Medical Directors. Did you ever share concerns with Specialist Commissioners about members of staff, if you had them?
HARVEY: In other circumstances, no.
LANGDALE: No. This can go down, thank you. In the end, Mr Harvey, whatever the systems are in place, it's important, isn't it, in the NHS that the culture is such that people can speak out without fear or concern when they are worried about patients, and do you accept now that you weren't listening to concerns raised and you weren't acting on them, as you should have done in your time as Medical Director?
HARVEY: I believe that I was listening. I accept that I didn't act in, in the way that others wanted me to and I accept that there were actions that I should have taken in a much more timely fashion than I did.
MS LANGDALE: Those are my questions, thank you.
LADY JUSTICE THIRLWALL: Thank you very much, Ms Langdale. Mr Baker?
Questions by MR BAKER
MR BAKER: Mr Harvey, I ask questions on behalf of the Families of a number of harmed and murdered babies, including, for these purposes, Family C and Family D. Can I begin by taking you back to something that you said to Ms Langdale, not too long ago. You
described competing duties between the duty of candour and the duty to staff and that isn't quite what Mr Medland said, when he talked about not always well aligned or not always aligned duties of care. He spoke about a dichotomy, apparently, between patient safety and reputational management. Now, is that not a perfectly credible interpretation of what he saw in the Trust by April 2017: a tension between candour and safety on one hand and reputational harm on the other hand?
HARVEY: I don't recall that Mr Medland actually described reputation in the way that you are perhaps implying.
BAKER: He said it wasn't in evidence, he wasn't describing it in a superficial way, just pure bad publicity but reputation was part of what he observed.
HARVEY: And I refer to one of my earlier answers, that, certainly as far as I am concerned, the reputation of a hospital or a hospital Trust is not some standalone character that one can protect. It is inherently reliant on the safety and the quality of the care that that organisation provides and at no point did I and I am sure any of my Executive colleagues have a level of concern purely about the reputation of the Trust because that's just a house built on shifting sand. That is
never going to work. It is always going to be underpinned by how safe you are and how good your care is.
BAKER: You see, I suggest you reached the point by small increments, but by April 2017 a situation had developed whereby the Executives were desperate that the Consultants' concerns do not become public. That is what had happened, isn't it?
HARVEY: I don't think this was a desire to obscure their concerns or hide their concerns. Our concern was always how we would be able to come to a consensus with regard to what had caused, if anything, the deaths of all the babies that we were reviewing. And I would say at that point, in April 2017, certainly from my perspective, the decision was that we had to go to the police.
BAKER: You see, you have been questioned about whether that was actually what the Trust Executives were wanting to do in April 2017, and I won't repeat questions that have been just put to you by Ms Langdale on that point, but I would say the Families do not accept that, that even in April 2017 you were still trying to cover things up, weren't you?
HARVEY: No, absolutely not.
BAKER: In that case, can I take you to a letter that
you wrote to Mother C on 28 April 2017. Now, Mother C, you will recall, you had already had interactions with previously in February and throughout the early part of 2017 because you had been -- you had reached a point where you were having to communicate with her about the RCPCH Report and Hawdon investigations, firstly because she had contacted you or the Trust in July 2016 and then because of The Times exposé regarding the Hawdon Report, the RCPCH Report. You wrote to her on 28 April 2017 and this is at INQ0008973. Now, if what you say is correct, that in April 2017 you had reached the point where you knew that the police were going to be called, and you wanted that to happen, then can you explain to the Inquiry why none of that appears at all within your letter to Mother C?
HARVEY: That is because, at that point, that was my own personal view. As is apparent, despite that a being my own personal view, Mr Medland had been commissioned for a report and --
BAKER: This is 28 April, Mr Medland had been and gone.
HARVEY: Yes, and at this point, it was my view that we were. I was waiting, and I can only surmise I was waiting, until we had had the confirmation that we had met and were going to meet with the police.
BAKER: Those words are weak, aren't they, because it would have been open to you to write to Mother C on 28 April if it were the view of you and all the Executives -- because Tony Chambers told the Inquiry yesterday, and the day before, it was also his view as well in April 2017 that the police were going to be called -- it would have been open to write to her and to say, "I cannot update you at the moment because there are further matters which need to be confirmed and I will write to you soon". Instead, you wrote to her providing her with extracts from the Hawdon Report, which you describe as "An independent external review regarding the care of your baby". Mother C could have come away from reading that letter with a sense that the Countess of Chester had entirely fulfilled its duties, investigated the death of her baby carefully and that nobody had any concerns beyond those recorded within the pages that follow. That would have been utterly misleading -- I go further, a lie -- wouldn't it?
HARVEY: I would say that I was fully anticipating, firstly, that there would be a follow-up meeting because there would be a need, given the nature of the contents of that report, to discuss the contents in detail and I would also -- I think also in the background of my
mind was that I had previously sent one, two letters that had again simply passed on a message of it being a holding message.
BAKER: Can I give you some words from Mother C that preceded your letter. I'm about to give you some insight into her level of desperation at this time. It's INQ0008971. If we go on to the next page, please: "Dear Mr Harvey ..." This is 19 April, some nine days earlier: "Thank you for your letter dated 3 March. I am sure you are aware that being informed that there were areas of further investigation required regarding our son's case was a surprise to us, given the information we had been given by yourself and Sian Williams up to this point." I pause there to say that the information that had been given to her by Sian Williams and yourself to this point was that there were no real concerns and nothing required investigating: "Whilst I am aware that things don't happen instantly and reports and results take time, I really would like to point out how awful this is for us. We are still waiting. Our son would have been two in June. It has been six and a half weeks since your last letter. I really cannot tolerate any further delays. I have
never wanted to seek legal advice over all of this because, as I said in my original letter, we want to move forward. However, this really is prolonging our suffering. "I would be grateful if you could send me a copy of the report from the Royal College of Paediatrics' review and a copy of the subsequent investigations regarding [Child C]. This really is the least that we deserve at this stage." Mother C was begging you for answers by this point, having been fobbed off on previous occasions. Now, your response to her was dishonest, if you believed at that point the only solution was to call the police; do you agree?
HARVEY: I don't. This letter is heart-rending.
BAKER: Is what, sorry?
HARVEY: Heart-rending.
BAKER: Yes.
HARVEY: It captures an emotion that many will not know, fortunately, and, in reading this, in fact it served to reinforce the effects of delays, and I believe that that would influence how I might write, taking this into account to suggest that there were going to be further delays again. I -- I -- I wouldn't accept that the letter I wrote
was dishonest.
BAKER: But how awful, you would have known, it would be to receive that letter from you, which suggests nothing but minor issues relating to care and to find out a few weeks later that the Trust were contacting the police because they believed crimes had been committed. You must have known that when you wrote the letter?
HARVEY: I didn't know at that point that -- what the result of a police conversation was going to be and I was mindful of -- and, again, it's that clash with regard to the extent of the duty of candour -- I was mindful of introducing additional distress that might not actually have a basis.
BAKER: You were hedging your bets that she would never find out about the police?
HARVEY: Absolutely not.
BAKER: What about Mother D? The Hawdon Report for Mother D describes issues relating to the care that was provided to [Child D]. An Inquest was due to be happening fairly soon. The Trust had been advised by Hill Dickinson in the run-up to the Inquest to admit liability, you had Jane Hawdon's report identifying areas of care. The Trust didn't even fulfil the basic level of candour in coming forward and saying, "We are concerned that breaches of duty, let alone murder, have contributed to harm to your child". Was there an institutional lack of candour in the Countess of Chester at this time?
HARVEY: I don't believe that there was, no.
BAKER: Can I go back then to the start of the chronology, insofar as you were concerned. The opening statement on behalf of the Executives states that the first time that concerns about Letby were raised with senior managers, including yourself, was at the end of June 2016, after the sad deaths of [Child O] and P. That's not correct, insofar as you, is it? You knew before the death of O and P that concerns had been raised regarding Letby?
HARVEY: I was aware that an association had been reported. I -- at that point, before June/July, didn't view it as any more than that and I believe that that's supported by the tone and the content of the meeting of the 11 May 2016, and the actions that came out of that, and the subsequent email from Dr Brearey in terms of summary of the meeting.
BAKER: Let's go through those. We can go to them in a moment but can we begin, first of all, with your knowledge about the Thematic Review. If we go please to INQ0003140. Now, an issue in Dr Brearey's evidence is that he says that he had asked
you for a meeting in February 2016. Now, you emailed Stephen Brearey on 15 February at 10.22 in the morning. The letter begins at the bottom of this page "Dear Steve", but if we go on to the next page: "Am I correct in thinking that you commissioned an external review of recent neonatal deaths? If so, is there any early feedback ahead of this week's visit." That is the CQC visit. How did you find out about the Thematic Review?
HARVEY: I believe through Alison Kelly.
BAKER: So as of 15 February 2015, Alison Kelly knew that a Thematic Review was under way because she told you about it?
HARVEY: I -- I believe that she was aware of a review, whether it was termed a Thematic Review, I wouldn't know.
BAKER: Yes, I mean her evidence was somewhat different to that, but your recollection is that she informed you of a Thematic Review. I mean, somebody had: you clearly had prior knowledge when you emailed Stephen Brearey?
HARVEY: Well, I -- I wasn't told by Dr Brearey.
BAKER: No.
HARVEY: It would have to have come either through Eirian Powell and thereby Alison Kelly.
BAKER: Yes. Okay. Well, if we go up to Dr Brearey's response to you on the next page: "Hi, Ian. It wasn't an external review but we did have a review of all the cases from 2015." He attaches the draft minutes and actions from the meeting and says that he's only circulated it on to attendees. Then at the top of this page, you email Alison Kelly, and you say: "FYI, in the light of Sarah's earlier graph [it is actually the second paragraph that's the important one], I queried with Steve the sharing of joint work with obs and their previous review, and he said they will get joined up at the Women and Children's Governance Board." Now, nowhere in your email to Stephen Brearey or his response does that information appear about querying with Steve the shared work and his response "They will get joined up to Women and Children's Governance Board", so it must follow that, either there were additional emails that we haven't seen, which is what Dr Brearey says, or you had a conversation with Dr Brearey about this?
HARVEY: I -- I believe that there is reference in another email to Dr Brearey talking about that sharing your joint work.
BAKER: So what Dr Brearey says in his evidence is that he communicated with you that he hasn't been able to find the email confirming this but that you told him that you would be -- he would be to merge the obstetric and neonatal reviews but, at the same time, he asked you for a meeting: a meeting with you and Alison Kelly. So: "My recollection is that I also asked for a meeting with him and Alison Kelly at this time. He replied to say that the report and the obstetric report completed in November 2015 should be amalgamated but did not indicate when we would meet to discuss." So your email to Alison Kelly relaying information from Stephen Brearey, which isn't in his email to you, does sort of suggest, doesn't it that that exchange had taken place?
HARVEY: I would also point out that there are some factual inaccuracies in Dr Brearey's recollection of the initiation of this email trail.
BAKER: Well --
HARVEY: In his statement Dr Brearey says that --
BAKER: Could you answer the question, please?
HARVEY: Well, I -- yes, I am doing, sir.
BAKER: The question I asked is: does your comment not imply, as Dr Brearey says, that there were further discussions between you and him of the sort that he described?
HARVEY: I do not believe so because I think his memory is faulty on certain issues with regard to these email trails.
BAKER: So you deny that he asked you for a meeting in February 2016?
HARVEY: I have no recollection and, certainly, based on the order of events in Dr Brearey's statement, I have no reason to believe that he did.
BAKER: No, but your answer is you have no collection. Thank you. We then have emails to between Eirian Powell and Alison Kelly in March 2016. I can take you to them if necessary but it provides a request to Alison Kelly for a meeting and provides a copy of the Thematic Review subsequently, but refers to high mortality and a commonality with a particular nurse. Were you aware of those emails and the sending on of the Thematic Review in March 2016?
HARVEY: Without seeing whether I am on the circulation list, I -- I can't answer that.
BAKER: You are not on the circulation list of this email chain but what I am asking you is did Alison Kelly make you aware that there were further emails regarding the Thematic Review?
HARVEY: Not at that time. If she -- if she did it would have been by forwarding them to me.
BAKER: So if we come on to May 2016. If we go, please, to INQ0003138, and this is an email from Alison Kelly, 3 May 2016, which includes you and Stephen Brearey. This is at the very bottom, onto the next page. We see here there's an original appointment at the bottom there which has your name on it as well, "To Ian Harvey", and it is being cancelled and they are looking for an alternative date for the meeting. What did you understand the purpose of that email meeting to be: to discuss the Thematic Review and concerns that had been raised?
HARVEY: My, my understanding was, yes, it was to discuss the Thematic Review.
BAKER: INQ0003087, please. Again, we have an email from Stephen Brearey, which is referring to, as you have been asked already: "Quite a few of the deaths and arrests. Eirian has sensibly put her on day shifts at the moment but can't do this indefinitely." You are being emailed by Alison Kelly there saying: "Please see Steve's comments below which alarmed me!" What did you understand her to be alarmed by?
HARVEY: My interpretation was alarmed that there was a nurse who had been moved on to day shifts.
BAKER: Because you thought that might be inconvenient for her or ...?
HARVEY: Well, given the tone of Dr Brearey's email, and his description of Eirian "sensibly" putting her on to day shifts and more a concern with regard to staffing numbers, I didn't read that as a particular concern other than for the well-being of the nurse. I didn't read that as an indication he was concerned about that nurse's performance in some way.
BAKER: Really?
HARVEY: And I -- and I believe that was reflected in my response to Alison Kelly's email that, as I read it, it may well just be that he was concerned regarding her welfare or words to that effect.
BAKER: So you thought that Alison Kelly was alarmed in the context of high number of deaths and other arrests and a nurse who was present for those who's been moved on to day shifts, only for the moment -- you thought her alarm related to concern for the nurse's well-being, not that correlation?
HARVEY: I believe that is reflected in my email response to Alison Kelly's, yes.
BAKER: Did you not realise, I suggest to you you must
have done, that Stephen Brearey's concerns related to the correlation, by this time, between sudden unexpected collapses, a nurse being present on the ward at the point when these happened, and concern about what was causing these collapses, how they might be connected?
HARVEY: As it was expressed in his email of 4 May, no.
BAKER: Not how it was expressed in his email on 4 May but based on everything that you had heard up until that point?
HARVEY: Based on everything that I had heard ...?
BAKER: Up until that point?
HARVEY: No, I hadn't picked it up. It hadn't been expressed in that sort of way in any of the communications that I -- I had seen, nor do I believe that it was explicitly referred to in the meeting that we subsequently had.
BAKER: So your evidence is that, at this point in May 2016, you had no clue at all about any concerns regarding the connection between Lucy Letby and sudden, unexpected and unexplained collapses on the ward and deaths?
HARVEY: At this time, with the Thematic Review, I was aware that there were concerns with regard to an increased number of deaths, that they were being investigated, that whilst one member of staff had been on duty more frequently, the individual case reviews, whilst highlighting some themes, had not caused any major concerns to be raised.
BAKER: If we go then to the meeting that occurred on 11 May 2016 and we look at the handwritten note of that, which is INQ0003181. So there is a little more information here. Again, the Thematic Review is discussed, and it says about deteriorations: "Deteriorated 9.00 pm - 6 times, midnight to 4." Did you not see anything significant about the fact that all of these deteriorations were occurring at night shifts?
HARVEY: As I believe I gave in evidence yesterday, there is evidence that standards of care are lower at weekends and at night and, in seeing that, that would have been my initial concern.
BAKER: Well, we can go to that issue because it's down the bottom of the page. Can you see where it says "sub optimal care". It describes one case, where there were concerns about the care that had been provided and the pharmacist's poor decision-making. So can you take from that that, in all of the cases being described, in only one was Stephen Brearey able to identify evidence of sub optimal care; that's what's being recorded here, isn't it?
HARVEY: That's what's been reported there, yes.
BAKER: So questions about care being poorer at night may be generic but, in this case, that issue has already been looked at, hasn't it?
HARVEY: I am not sure that there was sufficient detail in the Thematic Review to be able to say for sure. I am aware that one of the actions coming out of the Thematic Review was that there was to be a further review by Stephen Brearey and Eirian Powell into observations in the time leading up to the collapses.
BAKER: You see, Stephen Brearey's description of this meeting is that he was trying to get across concerns about this connection between the strange timing of the collapses and deaths which had changed since the nurse had switched shifts, the fact that she was always on duty when it happened, the fact these were sudden, unexpected, unexplained collapses, for which no cause could be found on the Thematic Review and other reviews and he says that, in effect, Eirian Powell argued the case for Lucy Letby and that shifted or diverted the decision making within the meeting away from looking at those questions of sudden, unexpected, unexplained collapses. It's a fair description of what happened, isn't it, that Eirian Powell came out fighting for Lucy Letby?
HARVEY: I think that some of the language that Stephen Brearey has used in describing how Eirian Powell and Anne Martyn behaved in that meeting is at the very least inappropriate.
BAKER: Well --
HARVEY: I -- I would accept that Eirian Powell put a number of points that would indicate why Lucy Letby might be more commonly either associated with these babies or --
BAKER: We can see what she said because there are some sentences or words here that have the hallmarks of what she said in evidence and elsewhere: "Absolutely no issues with nurse." Yes, can you see that; it is about halfway down the page?
HARVEY: Yes.
BAKER: "Circumstantial. One doctor also named across number of cases. Six babies Nurse Lucy Letby, sudden deterioration." Then at the bottom: "Trained at Chester." These were all words that Eirian Powell has used elsewhere and she is coming out here, isn't she, and saying there is absolutely no issues with Lucy Letby. It's all circumstantial, there is also a doctor
involved. Now, Dr Harkness who I think is the other doctor who appears regularly, doesn't appear for all the cases and he had left by this point. But here she is, Eirian Powell, arguing the corner for Lucy Letby?
HARVEY: I think that she was simply countering some of the points that had been made and Stephen Brearey highlighted the time frame of some of the collapses. He called out the fact that Lucy Letby was on duty more often than others but, certainly, my recollection is that he is overstating the degree to which he presented this data and how he presented it. Certainly at the end of the meeting, he gave the impression of being comfortable with the conversation that we had had, with the opportunity that he had had to be listened to and that he agreed with what was decided, was which -- which was that we would implement a much closer monitoring of babies who collapsed thereafter.
BAKER: But not a much closer monitoring of Lucy Letby, was there?
HARVEY: Well, based on the conversation that we would -- we had had, at that point, there did not appear to be a basis for that.
BAKER: Well, there was a reference to suggest there was more than enough in sudden, unexpected and unexplained deaths, with a nurse present at all of them and concerns being raised by a paediatrician, to warrant some sort of safeguarding exercise?
HARVEY: I -- I'm not sure that the sudden and unexpected actually associated Letby present at all of those.
BAKER: Well, it was. By this time, a table had been drawn up with Lucy Letby's name highlighted in red across it?
HARVEY: In terms of those babies, we had both indictment and non-indictment babies and, obviously, if one simply takes out the indictment babies one's presented with a very different picture.
BAKER: Well, she was present for all of the collapses and unexplained and sudden collapses that were highlighted within the Thematic Review, and there was a concern being raised about her potential connection to this, not necessarily in terms of homicide but certainly in terms of competence. The effect here is really just to kick the can down the road, isn't it?
HARVEY: I'm sorry?
BAKER: The effect is to kick the can down the road. No safeguarding is put in place in respect of her practice in any way, following this meeting?
HARVEY: No, I accept that safeguarding wasn't put in
place.
BAKER: And --
HARVEY: I don't believe that it was just kicking the can down the road. We felt that we needed that monitoring of any further unexpected events. I believe that there was one and that wasn't actually reported, despite the action plan and the guidance that was coming from this meeting.
BAKER: If we --
HARVEY: I would also comment with regard to the email that Stephen Brearey subsequently sent with regard to how he viewed the meeting.
BAKER: Sorry, could you repeat the last bit, sorry, I didn't quite catch you -- oh, how he viewed the meeting, thank you. Can we come on to what happens after O and P collapse, please. I think on behalf of the parents of O and P, they would regard the meeting in May 2016 as an opportunity and a missed opportunity to avoid the deaths of their sons. Would you accept that action could have been taken between February and May 2016 to prevent Lucy Letby causing harm to Babies O and P and all those who fell after February 2016?
HARVEY: No, I -- I cannot accept that there was sufficient in between February and May for that to be
the case.
BAKER: It was there to be found though, wasn't it?
HARVEY: Pardon?
BAKER: It was there to be found, the evidence, with investigation. You have already said the insulin results for F were there to be found?
HARVEY: Well, the insulin result was there dependent on a doctor doing the right thing with that result.
BAKER: That, that had happened already. What I am talking about is steps that you could have taken, further investigations, further scrutiny between February and May 2016 could have highlighted the insulin results could, indeed have brought in the stories of the parents who had witnessed --
HARVEY: I would say that that is by no means likely. It was only after the police inquiry was instituted that, in fact, Dr ZA remembered that there might have been this result. I would suggest that the biggest missed opportunity there was actually in August 2015 when, having considered that insulin result, Dr ZA excluded accidental administration, actually considered deliberate administration.
BAKER: We understand the point, Mr Harvey. It's been made --
HARVEY: Absolutely, but I think this needs to be clear
because --
BAKER: Can I come on to things, though, that you can give direct evidence about. Please, we do understand the point about the insulin and Dr ZA. Your reaction after being informed of the concerns surrounding the death of [Child O] and [Child P] was that the police should be called. That was your first reaction upon seeing Dr Saladi's email, was that the police should be called?
HARVEY: It was.
BAKER: If we go to INQ0047571, and down on to page 2, please, we can see Dr Saladi's email here to you and to Alison Kelly. Now, you must have read this in light of the meeting in May 2016 and the information you had had up until that point?
HARVEY: Yes.
BAKER: If we go up a page, we can see Alison Kelly's email to you beginning "Hi Ian": "I am not at Execs this AM but have briefed Sian fully. I have discussed reactions we are taking and I know we are commissioning an extra clinical review but Sian and I did also discuss the police. I know this is a big step but it's something we need to consider in light of heightened concerns." So Alison Kelly saying to you that she thought a discussion regarding the police needed to take place. Then Ian Harvey: "I have already emailed Stephen to meet ahead of the Execs. I will keep you updated. My own feeling, the police having been raised, I think we will have to." In other words, "We will have to call the police"?
HARVEY: Yes.
BAKER: If we then go on to the same day, you had a meeting with Stephen Cross and, if we go to INQ0003360, this is Stephen Cross' note but it is a note of a meeting with you, 29 June. Now, at the bottom, it says: "Deaths of Triplets has raised concern. Nurse was on duty at deaths. Sufficient level of concern that illegal activity in neonates." In the first paragraph at the bottom, it said. "Advice: police need to be involved now." At the end of the first paragraph. Who is giving the advice that the police need to be involved now; is that you or Stephen Cross?
HARVEY: I believe that the timing of that entry is incorrect. I think this reflects me going to Stephen Cross, having seen the copy of Dr Saladi's email, which I think was timed on the email system a couple of minutes after the time Stephen Cross has --
BAKER: Oh, yes, yes. So, I mean, it -- Dr Saladi's email is 8.17 --
HARVEY: Yes.
BAKER: -- and this note is at 8.15 --
HARVEY: Yes.
BAKER: -- and your email to Alison Kelly was at 8.31. So let's put aside the precise time of maybe 8.19 that's written on the note --
HARVEY: Yes.
BAKER: -- but it clearly is a note written fairly soon after you have received Dr Saladi's email and you have been to see Stephen Cross?
HARVEY: Yes, and my reading of that is that that is from Dr Saladi's email.
BAKER: Sorry, could you explain that, please? So you are saying that, where Stephen Cross has written, "Ian Harvey neonatal issue. Emails from Consultants escalating concerns. Email this AM from further Consultant. Advice: police need to be involved now"; are you saying that's just a recital of what Dr Saladi said in his email?
HARVEY: I -- I believe that is either that or that is a reflection of what I had said and had indicated in the email that I had sent to Alison Kelly.
BAKER: Well, what about the bit right at the end
then, where it says: "Nurse was on duty at deaths. Sufficient level of concern that illegal activity in neonatal." I mean, who is saying that; is that you or Stephen Cross saying that?
HARVEY: I am unsure where that's come from.
BAKER: Well, given that you had emailed Alison Kelly shortly before saying that you thought the police did need to be called, your evidence to the Inquiry is you thought then the police needed to be called, either this is you advising Stephen Cross the police need to be called or it is Stephen Cross agreeing with you that the police need to be called?
HARVEY: I -- I'm unable to remember which way. All I can say is that the earlier emails indicate that my initial response was that we needed to speak to the police.
BAKER: Yes, I mean there is no record of any disagreement from Stephen Cross regarding this, so does it follow that he agreed with you the police need to be called, or are you saying that there was a dispute as to whether the police needed to be called?
HARVEY: I -- I can't speak for Stephen Cross and I can't recall the full detail of that conversation.
BAKER: Was it not a fairly uncommon conversation to
be having with a legal director?
HARVEY: Absolutely.
BAKER: Are you saying you don't recall anything about this conversation?
HARVEY: I am saying that because these are events that occurred eight years ago.
LADY JUSTICE THIRLWALL: Mr Baker, just before you continue, we will need to take a break.
MR BAKER: Yes, of course.
LADY JUSTICE THIRLWALL: How much longer do you think you have got? I am not going to suggest you do it now, I just want to know.
MR BAKER: No. Let me come on to -- actually that probably is a convenient moment. I am about to come on to the next meeting.
LADY JUSTICE THIRLWALL: Very good. We will come back at 3.50.
(3.34 pm)
(A short break)
(3.50 pm)
LADY JUSTICE THIRLWALL: Mr Baker.
MR BAKER: Thank you, my Lady. We had just dealt with discussions whereby it appeared to have reached a point where you wanted to call the police, Alison Kelly wanted to call the police, and Stephen Cross, at least, appeared to agree to that or acquiesced to it. The next meeting on 29 June involves the Consultants and now Tony Chambers, and it's INQ0003371. You can see Tony Chambers, Alison Kelly, Ian Harvey and then we have Stephen Brearey, Ravi Saladi and others. Stephen Brearey's evidence is that when we went to the meeting with the Executives, the Executives were looking for reasons to either not go to the police or to defer the decision. Now, insofar as you were concerned and insofar as Stephen Cross was concerned and insofar as Alison Kelly was concerned, prior to this meeting you had all seemingly come to the view that the police were going to be called; what caused your change in mind?
HARVEY: I have read through these documents in detail, I have tried to recall the conversations that went on and I am unable to explain the change in approach.
BAKER: Can I help you with it. If we begin with some of the background. We have Stephen Brearey here: "Steve B, some PM reports but not all. Inconclusive. Some not satisfactorily giving answers. Inconsistent Datix reports." A little further down the page: "Unexpected collapses. Perhaps should have a Datix. A lot of complexity around reporting."
Further down the page: "Pseudomonas grown from taps but not evident in incidents." Then Ravi Jayaram: "Entirely subjective staff member almost always nurse in charge. Babies were stable then deteriorated. Why always this nurse? Babies were unwell but getting better. Babies not getting oxygen then crash. Babies did not respond as they should." Stephen Brearey: "Disturbing thing twin survived and got better at Arrowe Park. Babies coming back to Countess of Chester, babies deteriorate. Nurse 7 out of 9 between 12 noon and 4 am, and since then none." On the following page: "More than just an association with this nurse. "Ravi: how? Cannula? Air embolism? Crystal ball? Unquestionably got something going on in the Countess of Chester but what?" Then Saladi: "Preterm babies. Two steps forward and one step back. Don't suddenly deteriorate." So here we have this sort of very clear expression of something, more than just an association, quite significant concerns by paediatricians being put
forwards. Do you agree that that's closer from that note that this isn't just people saying she's always there when people collapse?
HARVEY: Yes.
BAKER: It's paediatricians saying, "There's something more to this, there's something more unusual about this"?
HARVEY: That is certainly something that comes out of those notes.
BAKER: Then we have the first statement from the Executives. "TC", Tony Chambers: "Why did we call the police? If Twins/Triplets why did the Trust take them on. Can we explore more before police?" It's Tony Chambers calming down the idea of going to the police, isn't it? That's clear from the note?
HARVEY: I'm not sure that that reads as him calming down. I think --
BAKER: I am not suggesting he was calm but I mean that's him raising the issue of why don't we defer calling the police?
HARVEY: No, I think he is simply putting in a challenge with regard to is there something that we need to explore before the police? He was asking those
in the room whether the police was the next step, where they -- did they have a degree of concern that it was the police. I don't read that, knowing how Tony Chambers ran his meetings and was keen to hear from everyone in the meeting and give everyone the opportunity, I believe that this was just a request to explore the full range of the options. I don't believe that he was actually specifically leaning towards --
BAKER: He's the new person in the room. You had talked about calling the police, Alison Kelly had talked about calling the police, Dr Saladi had talked about calling the police, and here we have Ravi Jayaram and Stephen Brearey raising their concerns very clearly about criminality. Tony Chambers is the new person in the room here, and that's what changes the dynamic, isn't it, that is why the police aren't called?
HARVEY: I -- I would simply say that he was exploring all the options and, as the Chief Executive, that's what I would expect him to do.
BAKER: Yes, and if we look at the reasons why the police aren't called, or one of the reasons, on to page 3: "Police consequences. Balance needed." Is it the concern about the consequences of calling the police, reputational harm, that is acting as the deterrent to doing it?
HARVEY: I don't believe that reputation was one of the consequences that was discussed and I believe that the consequences were with regard to the effect on the unit.
BAKER: Well, let's balance that. The effect on the unit, if Lucy Letby is still working there, and she was at this point, is she murders more babies; isn't that more serious?
HARVEY: Again, using hindsight, yes.
BAKER: Before I conclude, I mean, I would suggest on behalf of the families that this sets the tone, this marks the sea change between you wanting to call the police and the police not being called, and you becoming party to, a supporter of or at least acquiescent to that decision. But that decision at that point not to call the police you accept was wrong. The consequence is that it defers justice for the Families for another year; do you accept that?
HARVEY: I -- I accept, on the basis that I have already said that I believe we should have been in touch with the police earlier, that had the potential to delay things, yes.
BAKER: Finally, just to clarify a point. It was implied in questions to Alison Kelly that Alison Kelly
and Sian Williams might not have met with Mother C in July 2016. Can I take you please to INQ0008969, and to the next page, please. This is a letter to you from Mother C in February 2017, raising her concerns. If we go on to the next page, in the second paragraph she describes having read about the article in the Chester Chronicle in July 2016 and then mentions that she met with Sian Williams and Alison Kelly "when I turned up at the Bereavement Office". So you agree that Mother C wrote to you in the early part of 2017, recalling having met Sian Williams and Alison Kelly in the Bereavement Office?
HARVEY: I -- I do on seeing this document, yes.
BAKER: Yes. You know that there are no notes of the meeting between Sian Williams, Alison Kelly and Mother C, and it was suggested that that was unusual. You agree that you met Mother C in 2017, don't you?
HARVEY: Yes.
BAKER: There are no notes of that meeting either, are there?
HARVEY: There aren't, no.
BAKER: No. Is there any reason why notes weren't being taken of meetings between Sian Williams, Alison Kelly, you and parents?
HARVEY: No. I would say that it would be unusual for
Alison Kelly, who kept very good notes but that may have been a feature of the circumstance of the meeting. To my regret, I was a very poor note keeper, and I think that's probably evident to the Inquiry, in comparison with some of my colleagues.
BAKER: Thank you. My Lady, it occurs to me I just need to go back, very briefly, to Mrs Hodkinson's note and then that is my final question. If we go back, please, to INQ0015639, and to page 58, please, again, a point was made to Tony Chambers about this meeting on 30 June -- you were present, this is Sue Hodkinson's note of it -- that Tony Chambers asked Stephen Brearey the question: "If we remove Letby from the ward, will unit be safe?" He responded that the risk would be reduced. It was suggested to Tony Chambers that that meant that Stephen Brearey didn't really believe that Lucy Letby was behind the incidents. If you could look over, please, to the right-hand side, right-hand column here, I don't know if you recall the conversation but it begins, "TC: direct LL removed. Unit safe?", and Stephen Brearey is noted to answer, "Risk removed". Do you recall that exchange?
HARVEY: I don't, no.
BAKER: No, so you can't say whether it was risk reduced, according to Stephen Cross's notes, or risk removed?
HARVEY: I'm sorry, I can't clarify that, no.
MR BAKER: Thank you. Thank you, my Lady, I have no more questions.
LADY JUSTICE THIRLWALL: Thank you very much, Mr Baker. Mr Kennedy?
Questions by MR KENNEDY
MR KENNEDY: Mr Harvey, I have some questions on behalf of the Countess of Chester Trust. Can I just pick matters up, on 29 June, where Mr Baker just left them. At that stage, as you have just agreed with him, your state of mind is, "We need to call the police". You agree that the paediatricians in the meeting are saying that there is something more than simple commonality, and they are talking about criminal activity as one explanation, agreed?
HARVEY: I -- I would need to see the notes in front of me to remind me, I'm sorry.
KENNEDY: We can look at the notes again. It's INQ0003371, but it's the note about air embolus; do you remember that note?
HARVEY: Yes.
KENNEDY: I'm trying to move as quickly as I can through this, so that your counsel has an opportunity to ask you questions, so if we don't need to revisit matters, then that will help us. But it's that note towards the foot of the page. Over on to the next page, where you see: "Ravi: how? Cannula air embolism?" We have looked at it on a number of occasions now. The thrust was that they were concerned about criminal activity?
HARVEY: I'm not sure that that was entirely clear as criminal activity. Cannula air embolism can be accidental as well as deliberate.
KENNEDY: Every message you had from the nursing team was that Letby was a competent nurse, wasn't it?
HARVEY: Yes.
KENNEDY: Right. So you had to have in mind the possibility of criminal activity?
HARVEY: I would, in terms of what is most common, irrespective of what might be said have competence as an issue or a concern.
KENNEDY: Would you have also had in mind criminal activity?
HARVEY: Yes.
KENNEDY: Thank you. Your task and the Execs' generally
task was now to manage the risk, correct?
HARVEY: Yes.
KENNEDY: The impact of getting it wrong, given what was being told to you and given your view, at least at that stage of the police needing to be called, the impact of getting it wrong was catastrophic, wasn't it?
HARVEY: Yes.
KENNEDY: So when you formulated how it was you were to test the hypothesis, you had to formulate it in such a way that it was the most exacting question, didn't you?
HARVEY: Yes.
KENNEDY: That is consistent with medical practice: can I exclude the most sinister diagnosis, rather than can I include a less sinister one?
HARVEY: I'm not sure that you could apply that across to making a medical diagnosis.
KENNEDY: All right. But it's a familiar test to a doctor?
HARVEY: One is interested --
KENNEDY: A patient presents with a particular condition. What you are looking to do is can I rule out a sinister cause for that condition?
HARVEY: I would suggest that this is probably not an appropriate analogy because one would be looking to
exclude the common things first.
KENNEDY: Very well. Well, let's move on. Whether you are trying to exclude the common things, you have to have in mind the most serious?
HARVEY: Yes.
KENNEDY: Okay. So when you are setting the question, if I can put it like this, or formulating the hypothesis, does it not have to be as follows: can I confidently say that the paediatric Consultants' concerns are misplaced?
HARVEY: I would -- I would say with retrospect, our balance on that was incorrect.
KENNEDY: Do I take it from, from that, your answer, that you agree that that is how the test should have been formulated?
HARVEY: I have already agreed that my initial feelings on this were the ones that I should have acted on.
KENNEDY: I'm not now concerned about simply whether the police were called. This now builds into how you manage things going forwards. You should have managed them going forwards on the basis of asking yourself the question: can I confidently exclude criminal activity, is another way of formulating it?
HARVEY: I think our initial concern was: is the unit safe?
KENNEDY: You are -- please, I am really short of time, so if you could just answer my question. Looking forwards, your question had to be, "However I formulate it, can I confidently say that the paediatricians' concerns are misplaced?"
HARVEY: I'm not sure I can answer that without putting it as trying to understand the level of their concern.
KENNEDY: That may be part and parcel of the same?
HARVEY: Yes.
KENNEDY: Of the same exercise but what you are trying to do is confidently say that their concerns are misplaced whether it's because of the level or because of the evidence?
HARVEY: We are trying to confidently establish what is fact, yes.
KENNEDY: All right. Now, again, trying to just cut through this. You agreed with Mr Skelton last night that the Royal College of Paediatricians' report could not exclude criminal activity?
HARVEY: I -- I agreed that it was unlikely that it would, yes.
KENNEDY: Well, it couldn't do because it wasn't charged with that task or, alternatively, they told you they hadn't done that?
HARVEY: Yes, that's correct.
KENNEDY: So, either way, it couldn't exclude criminal activity?
HARVEY: Yes.
KENNEDY: Likewise, again trying to cut through this, Dr Hawdon couldn't exclude criminal activity?
HARVEY: Couldn't exclude but could identify --
KENNEDY: Right.
HARVEY: -- because --
KENNEDY: If she was --
HARVEY: -- at the end, at the trial, the prosecution experts were able to identify matters based on the Casenote Review. So that, whilst Dr Hawdon might not be able to exclude, I believe that there was the potential that she would be able to confirm.
KENNEDY: We can look at her letter but what she told you was, within the time that was permitted to her and that she could devote to the task, she simply couldn't do it; that was the gist of her letter?
HARVEY: I think it was to the fact that it wouldn't be as comprehensive.
KENNEDY: All right let me frame it another way: she told you she hadn't done it?
HARVEY: She hadn't done it to the -- a level of detail.
KENNEDY: All right. She hadn't done it to a level, put it another way, where you could be confident that criminal activity could be excluded?
HARVEY: No, which was why the reviews continued but then nor did she identify anything where said there were -- there was criminal activity.
KENNEDY: Well, now we are into evidence of absence being absence of evidence, aren't we?
HARVEY: Yes.
KENNEDY: So it's, at best, neutral?
HARVEY: Yes.
KENNEDY: Can we agree that?
HARVEY: Yes.
KENNEDY: All right. The same of the Royal College?
HARVEY: Yes.
KENNEDY: It doesn't, at best, from your perspective, it doesn't give you the answer either way?
HARVEY: No.
KENNEDY: Okay. You had undertaken the local investigation as part of the Silver Command, correct?
HARVEY: Undertaken a?
KENNEDY: A local investigation as part of the Silver Command?
HARVEY: Yes.
KENNEDY: That too didn't give you the answer to either
of the questions we have been talk about, did it?
HARVEY: No.
KENNEDY: Right. In those circumstances, if we now look at the 10 January meeting, the extraordinary Board of Directors meeting -- and I think now we probably do need to bring up some documents. So can we start with INQ0003239, and that's your presentation. Now, recall this?
HARVEY: Yes.
KENNEDY: This was circulated to the board, along with the College report at the meeting; can we agree that?
HARVEY: I'm not sure of the timings that the documents were circulated.
KENNEDY: If we go to the second page of this document, we can see that you have dated it 10 January?
HARVEY: Yes.
KENNEDY: Now, unless you forward date documents, does it look like this document was prepared and was presented to the Board of Directors on 10 January?
HARVEY: It will -- it was presented on the day. I can't say whether they actually had the opportunity to see it before the meeting, which took part -- took place late morning.
KENNEDY: Well, we can see the meeting was 11.00 am --
HARVEY: Yes.
KENNEDY: -- from page 1. So the most opportunity they would have had is, if they had been in the hospital first thing, if it had been delivered to them then?
HARVEY: Yes.
KENNEDY: All right. We can see also, if we go to the second page, Mrs Killingback, that the report of the Invited Review is attached?
HARVEY: Yes.
KENNEDY: That is the RCPCH Report?
HARVEY: I believe so, yes.
KENNEDY: All right. So they have got 30 pages odd of the RCPCH, plus your document distilling it, correct?
HARVEY: Yes.
KENNEDY: Okay. Now, you are inviting in this document the Board to accept two things for my purposes: firstly at A, to accept the RCPCH Report; and then at C you are asking them to support the Executive Team in assisting the staff member's return to work on the neonatal unit, correct?
HARVEY: Yes.
KENNEDY: We can look if we need to, we know from the board minutes that they accepted your recommendations, correct?
HARVEY: Yes.
KENNEDY: Okay. Given the significance of this, so putting somebody who the paediatricians thought was killing babies back on the neonatal unit, this was a decision that required real care, wasn't it?
HARVEY: It is. My recollection of the meeting is that there -- there were questions with regard to the continuing reviews and my own feeling was that, until those reviews were completed, it wouldn't have been appropriate for Letby to return to the unit, irrespective of the recommendation there that has my name to it.
KENNEDY: That was your recommendation and it was that recommendation the board adopted, wasn't it?
HARVEY: It, it was. But, in the discussion, I believe there was discussion that actually that would not take place until the completion of all the reviews. The reviews outstanding, and despite that recommendation to support her return, that was pending the results of the outstanding Hawdon and McPartland review.
KENNEDY: Indeed, because, at that stage, you were chasing McPartland for her report, weren't you?
HARVEY: That's right.
KENNEDY: Okay, and you hadn't completed the exercise that Dr Hawdon had suggested?
HARVEY: No.
KENNEDY: Okay. You were aware at that stage that there
was there had been an unequivocal rise in mortality?
HARVEY: Yes.
KENNEDY: We take that from your local review where you say it's not down to chance; correct?
HARVEY: I don't think we ever actually said it's not down to chance because I don't think we ever submitted it to statistical analysis, which, by definition, would be required to say it was or wasn't chance. But it was an increase that was sufficiently high that it was of concern and certainly isn't something we would have subjected to statistical testing to assess whether it was sufficient to need investigation.
KENNEDY: What you said in the review -- and this is INQ0001888, I don't suggest we need to get it up. What you said was: "Fluctuation due to common cause variation cannot account for the increased mortality seen in the neonatal unit." Common cause variation is effectively chance, isn't it?
HARVEY: Yes.
KENNEDY: Okay. Also, in addition to the unequivocal rise, you knew what the paediatricians' concerns were, you knew that, since Letby had been off the unit, there had been no deaths or -- well, no deaths, correct?
HARVEY: Yes.
KENNEDY: The board knew at least the first and second of those propositions, didn't they?
HARVEY: Yes.
KENNEDY: Okay. When you put it in your recommendation, we still have it on screen, the reviews having found no evidence of a single person's culpability, that went beyond, as we have just discussed, what could properly be concluded from any of your reviews, correct?
HARVEY: I think it was a much more complex picture. Everyone -- a lot of people seemed to be looking at this purely in terms of pre and post-Letby on the unit. The fact is that a lot of other actions were put in place, the unit was redesignated. The unit was subject to micromanagement. The unit was subject to much more scrutiny. There was, in addition, a fortuitous reduction in the level of activity. The unit was extremely quiet. So there were potentially a whole number of reasons why the picture would change.
KENNEDY: But you weren't in your recommendations here saying, "for a variety of reasons". You specifically refer to the reviews having found no evidence of a single person's culpability correct?
HARVEY: It is a limited report, yes.
KENNEDY: Sorry?
HARVEY: It is a limited report.
KENNEDY: I'm sorry, I am not hearing you: it is a limited?
HARVEY: The report is limited.
KENNEDY: Well, as we have agreed, the reports, including your local report, doesn't establish that proposition, does it?
HARVEY: It doesn't describe all the detail, no.
KENNEDY: It doesn't?
HARVEY: Describe all the detail.
KENNEDY: No, but you can't derive that conclusion from the report; we have agreed that?
HARVEY: I would accept that.
KENNEDY: Okay. Now, as I said to you earlier, this was the gravest decision or potentially the gravest decision that the board were being asked to take, wasn't it?
HARVEY: Yes.
KENNEDY: It required extreme care on your part, and also on Mr Chambers' part, that the board were presented with an accurate picture, agreed?
HARVEY: I believe they were being present with a picture that summed up the situation as it was at that time.
KENNEDY: What you said there, that the reviews having found no evidence of a single person's culpability, that was not accurate, was it?
HARVEY: It was accurate insofar as those reports. What it didn't do was, was call out the fact that that potential was still there.
KENNEDY: Well, it needed -- let's say it needed a full and accurate explanation?
HARVEY: Yes, and --
KENNEDY: All right, and --
HARVEY: -- I think that was part of the conversation that took part, actually, in the board around this paper, that we were waiting for that further information that was pending.
KENNEDY: But you are talking in those terms, Mr Chambers is talking in the terms of allegations being unsubstantiated. You are not, on the face of the minutes, really allowing for any other possibilities, are you?
HARVEY: I believe, in terms of the discussion that we had, I was calling out that this paper was written as of that time but that it wasn't complete because the reviews weren't complete, and that there was more to follow.
KENNEDY: A full and accurate summary of the reviews would have been that they don't help us one way or another in determining whether there's been criminal
activity; that would have been a full and accurate summary, wouldn't it?
HARVEY: I -- I wasn't in a position to say that, until I had received the full and final reports including those of Hawdon and of McPartland.
KENNEDY: Well, you were reporting to the board on the basis of the material available to you at the time?
HARVEY: Yes.
KENNEDY: On the basis of that material, you could say no more than, to be full and accurate, the reports don't assist us either way in determining whether there's been criminal activity?
HARVEY: The report is not accurate in those terms but I believe that that was discussed as part of the discussion around this document.
KENNEDY: Insofar as it was presented in that way, can we agree that it was misleading?
HARVEY: I would say that it told the picture as of that time but it wasn't a complete picture. It wasn't designed to mislead, I don't think it did mislead because I believe that the conversation that went around it in the meeting highlighted the gaps.
KENNEDY: Last time: as at 10 January, a full and accurate picture would have been the reviews that we have undertaken cannot tell us either way whether there
is a single person's culpability, or responsibility on the part of a single individual, correct?
HARVEY: As I have agreed, this is that picture at that time. It doesn't describe the full picture but that came up in the conversation around this report.
KENNEDY: I am going to move on because of time. Just to this: you have said on a couple of occasions in the course of your evidence today that what you were endeavouring to do was to help build a consensus and, I take it, with the Consultant paediatricians as to the cause for the increased mortality, correct?
HARVEY: Yes.
KENNEDY: You were then talking, I think, about probably your ethos in 2017?
HARVEY: Yes.
KENNEDY: Yes. Do you agree that the wise thing to have done would have been to share your reviews at the earliest possible opportunity with the Consultant paediatricians because they could have assisted you as to how you were interpreting them?
HARVEY: I -- I believe that I have already conceded that point, yes.
KENNEDY: All right. You had had the offer of help much earlier on from Dr Brearey when he had tried to give you some guidance as to what material should be provided to
the College?
HARVEY: Yes.
KENNEDY: Okay. Do you appreciate now that the way that, in fact, you handled it, which was to hold back both reports until February and to present the outcome of the board meeting on 11 January to the paediatricians on 26 January, as something of a fait accompli, that was never going to achieve that end of seeking a consensus?
HARVEY: Sorry, I am struggling to follow that.
KENNEDY: It's been a long day. The way that, in fact, you approached it had the opposite effect of building consensus because you held back material from the paediatricians?
HARVEY: I have, I've already agreed that we didn't share it in a -- in as timely a fashion as we should, yes.
KENNEDY: Because when they saw it on 3 February, you had had Dr Hawdon's report since the end of October, correct?
HARVEY: Initial, but then there was the ongoing work that was required to fill in the gaps, yes.
KENNEDY: All right. But you had had the initial report since the end of October --
HARVEY: Yes.
KENNEDY: -- and similarly you had RCPCH's report for some months?
HARVEY: Yes.
KENNEDY: To the extent that that approach soured relations between the Executive Team and the paediatricians, that is something, presumably, that you are apologetic for?
HARVEY: I believe that I have already apologised for that.
KENNEDY: Very well.
HARVEY: I would also say that part of their anger was with regard to the perception that what they had said to the College wasn't reflected in the report, and I take on board that the weight I put on the instructions that we received with regard to sharing the full report or the report for publication, probably aggravated that situation.
KENNEDY: Another part of their anger was that, when they read the RCPCH and Hawdon, they couldn't see the justification for letting Letby back on to the unit?
HARVEY: Yes. MR KENNEDY: Okay. Mr Harvey, thank you. My Lady, I will leave it there.
LADY JUSTICE THIRLWALL: Thank you very much indeed, Mr Kennedy. Ms Scolding?
Mr Harvey, are you all right to continue?
HARVEY: Absolutely fine, my Lady, thank you.
Questions by MS SCOLDING
MS SCOLDING: Good afternoon, Mr Harvey. I ask questions on behalf of the Royal College of Paediatrics and Child Health. I have just got two areas of questioning for you this afternoon, the first one which is about the reference of which you made numerous references to it first thing this morning, about the words "gut feeling" --
HARVEY: Yes.
SCOLDING: -- saying in the RCPCH Report they had used the terms "gut feeling" and that was what you went towards. Now, can I ask you to have a quick look at the only place I can find "gut feeling" appears in the various drafts of the report. So this is the final report and this is INQ0009618_0009, and it's the third paragraph, once we have got it up. Right. Now, this is the full report, and this is the green text. So the only place I can find "gut instinct" is, if you look, it's the penultimate sentence: "The Consultants explained that their allegation was based on Nurse L being on shift on each occasion,
combined with gut feeling." So this is part and parcel of what you have called today the green text, and so the first question to ask you really is: this isn't the RCPCH saying there was just a gut feeling; this is the RCPCH reporting what they say the Consultants told them?
HARVEY: Yes.
SCOLDING: But, of course, the Consultants didn't see this part of the report, did they? Because this was the part of the report that was redacted, however you want to call it?
HARVEY: That's correct.
SCOLDING: So, of course, they had no opportunity to then look at that and say to the Royal College, "Actually, you have got that wrong, that isn't what we said", because, in fact, what the Consultants said to the Royal College during the course of their review was pretty much what they had said to you in June and July 2016, they had gone through a series of factors, not just gut feeling; that's right, isn't it?
HARVEY: Yes.
SCOLDING: So, in fact, your actions prevented the paediatricians being able to correct a factual inaccuracy and, therefore, led to you and others relying upon something which, in fact, wasn't right?
HARVEY: I'm sorry, my action ...?
SCOLDING: Your actions in preventing the paediatricians from seeing the full report therefore meant that you and others proceeded upon an erroneous basis as to what the Consultants had or hadn't said during the course of the report; that's right, isn't it?
HARVEY: Well, my understanding is that I was following the instructions received from the College with regard to how the report should be circulated.
SCOLDING: Yes. Well, I am going to come on to that. So if we then come on to the issue of what was or wasn't confidential. So, if I can take you first to the contract, so this was something that arrived on 2 August 2016. It's INQ0009597, and could we get up the second page. Can we have a look at number 3 and number 4. So you signed this document and sent it back to the College, and this is the basis of the agreement to carry out the review: "Within the requirements of confidentiality under the DPA, the review must proceed in an open manner enabling discussions by the review team with all parties involved." Then number 4: "The final review report should be made available to those involved in the review." So that's the starting point that you will have seen or that you, one hopes, will have read carefully, which is everybody who, in effect, contributes to the review should have an opportunity to see it, it being identified that one of the purposes of the RCPCH Review, as the reviewers in the evidence that they have given to this Inquiry have said, was a sort of peer review process which involved a degree of openness and candour between all involved. So that's the process. I then can't find any reference to confidentiality in any written information until the document that Ms Langdale showed you this morning, which is INQ0003403, page 1. This is the email to the final draft report, if I put it this way: "Please find attached draft report, it does provide some fairly strong recommendations, so I would be grateful if you and Alison can have a first read through then once you are happy, perhaps you can share it with a few selected people, including, I would guess, Ravi, Stephen and Eirian, to check for any obvious accuracy sees or misunderstandings." Sue Eardley then says further down: "She has put together a chronology. That could be Appendix 4 but it's fairly sensitive, might be of use to
Jane and Martin [which is Jane Hawdon and Martin McPartland] as they do the detailed reviews." So, in fact, contrary to what you say, it is absolutely clear -- and this report at this stage, this was not a kind of dissemination version, green text/non-green text, this was just one report, including what then got excluded. This plainly identifies that it should be seen by Ravi, Stephen and Eirian to check for any obvious inaccuracies and misunderstanding. So where does that say, "Please do not give Ravi and Stephen the redacted or the green text"?
HARVEY: I -- I believe that there was a further email that actually did say that.
SCOLDING: Right, let's get that further email up. INQ0003132, which is your response to this email, sorry, and then we will come to the further email. Could we go to the second page, please. Right. This is your return email, so Sue Eardley sends you the full report, if I am going to put it that way, on 18 October. You, on 15 November say: "Please find attached an amended report. It has been seen by the Execs, Steve Brearey, Ravi Jayaram and Anne Murphy, and their comments have been taken into account." So, in fact, what you say to the Royal College and
what the Royal College would have assumed is that those particular Consultants would have seen the full copy, including the green text?
HARVEY: I'm not completely clear in my mind that that first report that was sent through included the green text.
SCOLDING: I think it all included the green text, unless and until you came to the final version, which we are going to come on to now, which is the email from Sue Eardley, which is INQ0009617. So, again, can I just clarify there is nothing in there about you talking about confidentiality or discussing anything with Sue Eardley about confidentiality. So this is the letter which encloses the two reports, and I think Ms Eardley has already given evidence that, you know, with hindsight, she should not have produced two reports, she should only have produced one. So let's leave that to one side: "Please find attached a close out letter. I have made the changes as suggested below in your email. Please let me know if there is anything else that can assist. There is one confidential, which includes the HR issues and is our formal version, the other omits these and would perhaps be suitable for wider dissemination amongst those who contributed."
Now, this email has to be seen in the light of the previous chain of emails we have seen, which is: "Can you make sure that Ravi and Steve see the full version for factual accuracy." You send the email back saying that they have seen it and there are these two reports. Nowhere in that email does it say we are telling you not to send it to anybody. It says it perhaps would be suitable for wider dissemination amongst those who contributed. Do you think you could have misread that email as saying something which it didn't mean to say or do you think that it just suited your intentions to have it read that the full report shouldn't be seen by the Consultants?
HARVEY: My reading of that email is that the confidential one, with the HR issues, was for very limited circulation and the formal version was the one for dissemination to those who had contributed. I --
SCOLDING: But --
HARVEY: -- still am not clear in my mind that the very first report that we received actually included the green text because there was no reference to that being called out as something -- something different at that point.
SCOLDING: Okay. But can I ask you to note the words, "would perhaps be suitable". So this isn't an instruction or a direction. It's a suggestion; that's right, isn't it?
HARVEY: Yes.
SCOLDING: Okay. Can we then look at the letter which was attached to this email, which was the close out letter, that's INQ0009620. It's the second paragraph I would like you to look at, please, Mr Harvey: "Aware of the personnel issues, we have provided two reports, one including the full details and one omitting the confidential HR issues. To continue our expectation of openness, I hope you will share the dissemination copy of the report in confidence, if necessary, with those who contributed. It remains your report though and we will not distribute or share it more widely without your permission." So the point that Ms Langdale made to you repeatedly this morning was in fact made to you by the Royal College of Paediatrics at the time that the final report was sent to you, which was, "It is your report, distribute it as you wish, we have tried to do something to help you". In no way does it say there, there is any injunction, prevention, direction or refusing to disclose the report to, in particular, those people who had made their concerns known to you about Letby.
HARVEY: I would say that the use of the phrase "confidential HR issues" was something that might cause that thought in my mind. I accept that it was our report. But, in considering the content, in considering the recommendations, I was also mindful of those who constituted the expert team that came to visit.
SCOLDING: Yes. But you had already had a conversation with them, both on 2 September and then a letter had been sent very quickly afterwards on 5 September, at which they had said, "You need to get on with the disciplinary process", and Ms Langdale took you to those various discussions this morning. So you already were aware of the fact that the Royal College had assumed that you would have been in the process of undertaking a disciplinary investigation, which the witness, who have given evidence on behalf of Royal College, Ms McLaughlan, said she would have assumed that meant that you would have called the police. So surely it is in that context you have to take it? Not, "We don't think that anyone should see this", but maybe, "Not everyone who doesn't know what already has been going on should see it"?
HARVEY: I would suggest that a lot of the communications from the College and their report as well is couched in vague language. It is full of
assumptions. You have just described an assumption. At no point is there anything explicit and, given the nature of the concerns that led to the invitation to review, given the expertise of the team I would have expected, if they anticipated that there was something that serious, that it would be explicit. And I find it very difficult to accept that the lay member, as an inactive barrister who contributes to NCAS and the NMC is talking in terms of vagueness, and this really didn't help us.
SCOLDING: Okay. Well, you are perfectly entitled to your perspective on that. Obviously, the Royal College doesn't agree with that but that's -- but it doesn't really help answer the question that I asked, which was: there is nothing in this letter which identifies that you should be keeping HR matters in respect of Letby confidential to those who made their concerns known to you?
HARVEY: Not, not explicitly no. The use of "Confidential HR issues" would mean that I would be seeking advice with regard to what we would do there. MS SCOLDING: Yes. Thank you. I have no further questions, thank you very much.
LADY JUSTICE THIRLWALL: Thank you very much indeed, Ms Scolding. Ms Blackwell?
Questions by MS BLACKWELL
MS BLACKWELL: Mr Harvey, it's been put to you by Counsel to the Inquiry as a fact that [Child O] and [Child P] should never have died after the 11 May meeting when Letby could have been off the ward and referred to the police, and she put that allegation to you, the implication being that you, as the Medical Director, are responsible in part for that taking place. It has also been alleged that you, as the Medical Director of the hospital were part of harbouring a murderer, that's been put to you by Counsel to the Inquiry. As this Inquiry is a search for the truth, I want to take you through what evidence there is before the Inquiry and that you would have known about in order to see whether there is evidence in order to support those allegations?
HARVEY: Yes.
BLACKWELL: Now, what lay behind the 11 May meeting was the Thematic Review?
HARVEY: Yes.
BLACKWELL: So I would like to take you, first of all, please, to the Thematic Review itself, the one that was discussed during the course of the 11 May meeting, and it's at INQ0003400. Now, as that's being brought up, let's remind ourselves that the first copy of the Thematic Review that you received from Dr Brearey was sent to you, you having asked him for details of what you believed was an external review --
HARVEY: That's correct.
BLACKWELL: -- and he sent you the draft document on 15 February?
HARVEY: He did.
BLACKWELL: Yes. What we are looking at now is the final document.
HARVEY: Yes.
BLACKWELL: If we can look at page 2, please. We can see that this is the document that was created following the meeting on 8 February 2016. We see that at the foot of the left-hand corner. The purpose of that review was to deal with the higher than expected mortality rate on the NNU during the course of 2015?
HARVEY: That's correct.
BLACKWELL: Now, there were 10 cases considered during the Thematic Review. Those cases were chosen by Dr Brearey, weren't they?
HARVEY: They were.
BLACKWELL: Yes. We can take these fairly quickly, I hope. The first death was of a child on 5 April of 2015, a child that had severe hypoxic ischemic
encephalitis, a death for which Lucy Letby was not on duty?
HARVEY: Yes.
BLACKWELL: Yes. Over the page, please. There are then three further deaths, we now know them as [Child A] [Child C] and [Child D]. Of course, when this review was prepared, they were referred to by their names, weren't they?
HARVEY: That's correct, yes.
BLACKWELL: Yes, and we know, as we can see, that [Child A] died on 8 June 2015, there was a Coroner's postmortem, which was unascertained. We know that the Inquest there is listed as taking place on 23 March 2016 but, in fact, we now know that was delayed until 10 October 2016.
HARVEY: That's correct.
BLACKWELL: I will come back to that at the end of my questions. We also know that [Child A] had a Twin, [Child B]?
HARVEY: Yes.
BLACKWELL: It was suggested to you by Counsel to the Inquiry that at no time did you suggest that [Child B] and [Child B]'s collapse should be looked at. Was that ever something that Dr Brearey raised, as far as you are aware?
HARVEY: No, it wasn't.
BLACKWELL: Thank you. [Child C], we can see had a postmortem. We see what the results of that postmortem were. The concern in relation to [Child C] was that there was no cause for the deterioration identified. [Child D] died on 22 June 2015. Again, there was a postmortem with a reason given for death. Can we go over the page, please. [Child E] died on 4 August 2015. There was no postmortem but there were two causes of death given. Then on 4 September 2015, another child died. It appears that that child might have undergone a sudden collapse. There was a postmortem, there were reasons given for the death. Lucy Letby was on duty, we know from the appendix, at the time of that collapse and death. Over the page, please. Thank you. 27 September 2015, another child died. There was a postmortem with reasons given for the death. Lucy Letby was on duty when that child collapsed and died. Then [Child I] died on 23 October 2015. At the time that this review took place, there was a postmortem awaiting and we know that that was the child, [Child I], who had undergone multiple transfers. We can see that the information provided in this review is that there were arrests on 13, 14 and
15 October but with rapid improvement after each arrest. Did it come to your attention as to whether or not that improvement had taken place within the Countess of Chester Hospital or outside of it?
HARVEY: That wasn't clear, no.
BLACKWELL: Thank you. On 13 December 2015 another child died. There was no postmortem but two reasons given for the cause of death. Lucy Letby was on duty at the relevant time. Over the page, please, thank you. On 8 January another child died. At the time that the review took place, the postmortem was being awaited and there was probable prematurity and sepsis being suggested. In relation to this child, there had been what appears to be a sudden arrest on day two and Lucy Letby was not on duty during the course of that arrest. Now, if we go over to the next page, please. We can see --
LADY JUSTICE THIRLWALL: I am very sorry to interrupt you, Ms Blackwell, but I noticed when we were looking at [Child A] -- it's nothing to do with you or the witness -- the details of the mother's condition have not been redacted. They should have been. I'm not sure how that's happened, but that first line of the mother's medical condition must not be reported.
MS BLACKWELL: Thank you very much, my Lady.
LADY JUSTICE THIRLWALL: Not at all.
MS BLACKWELL: These were the themes as we see them in the final report, so the first, sudden deterioration, the second, the timings of the arrests. Now, in the draft report which you saw on 15 February, those -- well, sudden deterioration didn't appear at all, the timing of the arrests was number 4 of the themes identified, and top of the themes identified was delayed cord clamping. That was the report that was sent by Dr Brearey to the others who had been present within the meeting in order for them to comment upon.
HARVEY: That's correct.
BLACKWELL: Yes. We know that it was following suggestions from Dr Subhedar that these amendments were made?
HARVEY: Yes.
BLACKWELL: But you didn't see the amended report until it was sent to you via Alison Kelly on, I think, 17 March 2016 or thereabouts; is that right?
HARVEY: I think that's probably correct, yes.
BLACKWELL: Yes. There were a series of outstanding actions set out in a summary action plan. Could we go to page 9, please. Thank you. Did you see these actions set out in the action plan prior to the meeting
on 11 May?
HARVEY: I believe they were attached, yes.
BLACKWELL: Thank you. If we could just go back to page 7, please, we can see that one of the actions at page 7 was that Stephen Brearey and Eirian Powell were to review all the cases focusing on nursing observations in the four hours before the arrests. Were you aware that that was an action that had been set out and was being undertaken?
HARVEY: When I received the final version of this, yes.
BLACKWELL: Right. Thank you. Now, you understood when you read the Thematic Review, going into the meeting on 11 May, that there were problems on the ward; is that right?
HARVEY: Yes. Primarily concern about an increased number of deaths.
BLACKWELL: It's been suggested to you today that it must have been obvious to you, given the sudden deterioration as we see it under the themes identified, and the timings of arrests, that deliberate harm was being suggested both on the face of the document and later in the meeting of 11 May, which we will come to; is that right?
HARVEY: Sorry, is that right in terms of I would
appreciate that or --
BLACKWELL: Was deliberate harm obvious to you from the face of the document?
HARVEY: It, it wasn't either in terms of the overall tone of the document, nor was it specifically called out.
BLACKWELL: Could we have up please the email that you received from Alison Kelly on 6 May. It's INQ0107818. It has been suggested to you that when you read this email from Alison Kelly, it must have been obvious to you what she meant when she suggested that she had some alarm, and I think it's at page 2, please. If we look at the email on 4 May from Dr Brearey. You have already been taken to this today: "There is a nurse on unit who has been present for quite a few of the deaths. Eirian has sensibly put her on day shifts", and he talks about the pressure on staffing numbers. Was that brought to your attention?
HARVEY: Was I -- no, at that point, I wasn't on the circulation list.
BLACKWELL: Can we go back to page 1, please. At the bottom of the page, we can see that Alison Kelly, I think, has forwarded that email on to you?
HARVEY: That's correct.
BLACKWELL: She has said: "Please see Steve's comments below which alarmed me." It was that to which you were taken, I think, by Mr Baker. Your response, which you weren't taken to, later on that day appears above it: "I see what you mean, although perhaps he just meant that he was concerned for her. I am fine to meet for this next Wednesday."
HARVEY: Yes.
BLACKWELL: So what was your take on what was being suggested?
HARVEY: My take from the description of her having been sensibly removed, together with just the expression of concern with regard to staffing, was that this had been a supported move. My interpretation was that Dr Brearey supported that move but was concerned about how that shift of that member of staff was going to affect the staffing balance on the unit.
BLACKWELL: Thank you. Mr Baker also questioned you about the request for a meeting from Dr Brearey?
HARVEY: Yes.
BLACKWELL: You know that his evidence to the Inquiry was that, soon after completing the Thematic Review, he was keen to meet with you and had asked for an urgent meeting?
HARVEY: That's correct.
BLACKWELL: Could we have up on screen, please, INQ0038966? It was suggested to you that there must have been a conversation or another email that had gone between you and Dr Brearey because, further on down the line, you had made it clear that he had made a request of you that the Thematic Review be aligned with the obstetric review?
HARVEY: Yes.
BLACKWELL: Yes. Now, if we look at the middle of that page, we can see on 15 February you are emailing Dr Brearey in these terms: "That's helpful. I note that you state an obstetric thematic review did not identify any common themes or identifiers that might be responsible for the rising mortality in 2015 and now you have carried out a review, where do the two get joined up?"
HARVEY: Yes.
BLACKWELL: Yes. We can see his response to you at the top of that page: "They will get joined up at the Women and Children's Governance Board. It's not easy working across Urgent and Planned Care Divisions. I have copied this into Jo Davies for her info."
HARVEY: Yes.
BLACKWELL: Which would appear to be the missing email, so far as that piece of the jigsaw is concerned?
HARVEY: That would appear to fill in the gap.
BLACKWELL: Yes. There is no request for an urgent meeting is there?
HARVEY: No.
BLACKWELL: Did he ever make one of you?
HARVEY: No.
BLACKWELL: Thank you, we can take that down, please. Now the meeting itself on 11 May, we have looked at the notes; I don't intend to take you back to them. But just to confirm your recollection of what was being said there. In terms of anything that Dr Brearey might have said, did he provide to you any information over and above what we have just seen on the face of the written document?
HARVEY: No, he didn't.
BLACKWELL: Did he challenge Eirian Powell and Anne Murphy when they spoke in terms that the Inquiry has heard that we see in their written note which they brought to the meeting?
HARVEY: No, he didn't.
BLACKWELL: Right. We have seen the email that he sent
following that meeting in which he referred to it as a helpful meeting and he was grateful for the work that had been done and for the actions that were flowing from that. And did you take that on face value?
HARVEY: Absolutely.
BLACKWELL: Now, one of the additional matters that was set out in that email is -- and of course it was sent to his fellow clinicians, was this instruction: if you do come across a baby who deteriorates suddenly or unexpectedly or needs resuscitation on the NNU, please can you let me and Eirian know?
HARVEY: Yes.
BLACKWELL: You were aware of that?
HARVEY: That was one of the action plans from the meeting.
BLACKWELL: So between 11 May and 27 June did anybody any of the clinicians, including Dr Brearey and Dr Jayaram, bring anything to your attention?
HARVEY: No, they didn't.
BLACKWELL: No. Not the deterioration (redacted) of [Child N] on 15 June of 2016?
HARVEY: No.
BLACKWELL: No. As you have told the Inquiry, the first you know you knew of the deaths of O and P was on 27 June?
HARVEY: Yes, that's correct.
BLACKWELL: I am not going to take you again to the meeting notes of the 29 June. You have already given your evidence as to what you took Dr Jayaram to mean when he posed the question: "How? Cannula? Air embolism? Crystal ball? Unquestionably got something going on in the Countess of Chester but what?" You took that to mean either a deliberate harm or a competency issue?
HARVEY: Yes.
BLACKWELL: Yes. You have already been taken to the comments made by Tony Chambers in the middle of that page. I suggest in accordance with the evidence he's given to the Inquiry that the note is wrong and that it should be: why did we not call the police?
HARVEY: Yes.
BLACKWELL: Of course you have been taken to the fact that Dr Brearey's response to that is can we move the member of staff? If no, then we should go to the police. And Dr Jayaram's response: "Why not earlier, call the police: reviews."
HARVEY: Yes.
BLACKWELL: Is that your level of knowledge, that there had been reviews undertaken on the ward, including Dr Subhedar who was an outside external Consultant and that's why there hadn't been a decision thus far to go to the police?
HARVEY: Yes, that's correct.
BLACKWELL: There was a meeting the following day on 30 June, again I am not going to take you again to the -- to the record that we have had up twice, possibly three times today. Do you recollect whether or not when Tony Chambers suggested if the nurse be removed, the deaths would stop, the response from Dr Brearey was either: risk would be reduced or risk would be removed?
HARVEY: I can't recall which answer was given.
BLACKWELL: Do you accept that by the end of the meeting on 30 June there was at least the prospect in your mind that deliberate harm might have been being caused?
HARVEY: Yes.
BLACKWELL: Were there other matters that were also within your mind as the possible cause of the increased mortality?
HARVEY: Absolutely. Common -- common things are common and one is going to be concerned about quality of care, be that collective, be that individual and the effect that that would have on the safety and the level of care that is delivered.
BLACKWELL: So when it was suggested to you this morning by Counsel to the Inquiry that you should get off the word "association" and that what was being said loud and clear was deliberate harm and murder, is that a fair reflection of your memory of that meeting?
HARVEY: No. It -- it doesn't reflect what I heard from what was a very wide-ranging and I believe very honest conversation amongst all those present.
BLACKWELL: When it was put to you by Counsel to the Inquiry that at the end of the 30 June meeting there was no substance in saying that it was only a possibility of there being deliberate harm, does that reflect your memory of the meeting?
HARVEY: That it was only a possibility?
BLACKWELL: That it was --
HARVEY: Yes.
BLACKWELL: -- something more than a possibility?
HARVEY: No.
BLACKWELL: There was no substance in saying it was only a possibility?
HARVEY: No, no.
BLACKWELL: You have given evidence today about the Silver Command that was set up on 7 and 8 July and you have told the Inquiry that you regret that you did not stick with your initial view that the police should be
contacted if only to provide an oversight to the other work that you were doing?
HARVEY: That's correct.
BLACKWELL: Does that remain your position?
HARVEY: It does, yes.
BLACKWELL: Thank you. My learned friend Ms Scolding has asked you about the RCPCH Report and given the answers that you have provided to her questions, I don't seek to ask you anything further about that. But it was suggested to you that only -- and this was by Counsel to the Inquiry, not Ms Scolding, that only the police could provide independent expert evidence. Do you agree with that statement?
HARVEY: No, I don't. Ultimately the police will rely on clinical experts to provide that evidence. I'm aware of the criticism of relying on Dr Hawdon, but I would point out that actually the evidence presented at trial was coming from clinical experts based on Casenote Reviews and those experts found sufficient evidence for her to be found guilty.
BLACKWELL: I think that was what you were trying to say when you were prevented from giving a complete answer to a question that was posed by Mr Baker; is that right?
HARVEY: That's correct.
BLACKWELL: Yes, thank you. It was also suggested to you by Counsel to the Inquiry that Dr Subhedar in his letter to you very clearly indicated that you should go to the police. Now, could we have a look at that letter please. It is an email at INQ0006890 and it's page 188.
LADY JUSTICE THIRLWALL: Choose your moment for a break.
MS BLACKWELL: I have nearly finished, my Lady.
LADY JUSTICE THIRLWALL: Very good.
MS BLACKWELL: If we just take a moment to look at the various points made by Dr Subhedar in this letter. He talks about the Terms of Reference not being clear, his own interpretation of the 13 deaths, he's broadly in agreement with the recommendation of Dr Hawdon. He questions the fifth recommendation on the basis of her review. He adds an additional seven cases and he says: "I would like to make one further observation in relation to the RCPCH Report and recommendations. Many of them relate to governance arrangements." He says that those are matters which are common, not just at the Countess of Chester Hospital and he hopes that the letter is helpful and that he would like to share his findings with Stephen Brearey. Did you read anything in that letter as being a very clear indication that you should go to the police?
HARVEY: No, I didn't.
BLACKWELL: Thank you. The final matter that I would like to ask you about is [Child A]. [Child A], as we know, had an Inquest eventually on 10 October 2016. This Inquiry has heard from Dr Jayaram who gave evidence to the Coroner and indeed you were asked questions yesterday by Mr Skelton about the evidence that Dr Jayaram gave to the Coroner. Dr Jayaram told this Inquiry that he didn't mention to the Coroner anything about concerns that by then were being held that there was a possibility at least of deliberate harm at the Countess of Chester Hospital. He gave evidence to the Inquiry that rather than making anything explicit to the Coroner, he laid what he described as "breadcrumbs": "I was trying to sort of throw as many breadcrumbs as possible for the Coroner to pick up without explicitly saying what the suspicion was. I appreciate [he told the Inquiry] that this was the wrong judgement", given that Baby A [Child A]'s parents were sitting 10 feet away and that he had failed in his duty of
candour. Now, you were asked by Mr Skelton whether or not you thought that that was adequate for somebody to on oath give that evidence?
HARVEY: Yes.
BLACKWELL: What was your response to this Inquiry?
HARVEY: I believe my response was that that was wholly inadequate.
BLACKWELL: It was suggested to you that you may have in some way interfered with the statements that were provided to the Coroner. Did you do that?
HARVEY: I didn't.
BLACKWELL: It has also been suggested that you did not bring to the attention of either the Coroner or the Assistant Coroner the concerns of the Consultants. Now, in answer to questions from Counsel to the Inquiry today, it has been confirmed that in fact what had been provided to the Coroner in written form was the letter from the Consultants, Dr Hawdon's report and also the green text from the RCPCH Report?
HARVEY: That's correct.
BLACKWELL: That is the green text of course which sets out the allegations that Nurse Letby had been involved in some way --
HARVEY: Yes, that's correct.
BLACKWELL: -- in what had gone on. So what do you say, Mr Harvey, was the topic of the conversation between yourself and the two Coroners at that meeting in February of 2017?
HARVEY: The topic of conversation was with regard to the events surrounding the paediatricians writing their letter to Tony Chambers requesting that we approach and spoke with the Coroner to investigate with him whether he would consider reopening any of the cases or undertake further investigation. By that very nature, we would have to explain and provide documentation to support why they had written that later -- letter and why we were requesting that meeting with the Coroner.
BLACKWELL: Is there any doubt in your mind that that conversation took place?
HARVEY: Absolutely not.
MR BAKER: Thank you, my Lady. That is all I have.
LADY JUSTICE THIRLWALL: Thank you very much, Ms Blackwell. Further questions by MS LANGDALE
MS LANGDALE: My Lady there is one document I should have put, if I can introduce that.
LADY JUSTICE THIRLWALL: Yes, of course. Just let Ms Blackwell get to her place.
MS LANGDALE: Mr Harvey, can we have a look please INQ0014405, page 1. It is a document I should have referred you to earlier. It relates to the CQC. If we see it, it's reflection of a CQC document 17 February 2017, "Strategic update from the Trust." Do you see that in box 3?
HARVEY: Yes.
LANGDALE: Does that reflect your meeting and update in February 2017 with the CQC? (Pause)
HARVEY: I -- I believe so, yes.
LANGDALE: The CQC say they didn't receive the Thematic Review report, you say you sent them -- you said in evidence you say you sent the Thematic Review to the CQC, but in your statement you said you couldn't recollect. Do you know now whether you sent the Thematic Review report and if so, when?
HARVEY: I'm -- I'm basing that on the fact that in February 2016, in the email that I sent to Stephen Brearey requesting a copy of the thematic or asking if the review was available.
LANGDALE: I don't think it was available then to you. We have heard?
HARVEY: He sent me a draft copy but that was very specifically with regard to the forthcoming CQC visit and I haven't seen an email but in doing that specifically, I am sure that on receipt of that, I would have forwarded it to whoever was responsible for sending the documentation through to the CQC ahead of their visit.
LANGDALE: We will follow that up, Mr Harvey. It looks like the CQC may have had the Brigham review but not the Thematic Review and the minutes may have been attached to Dr Brearey's email, you had asked for it, but from what your counsel says today you had this in March I think yourself, but we will follow that up in any event. You didn't recollect in your statement and you don't have a firm memory; we can follow the paper trail?
HARVEY: I -- I -- I can't -- I can't recollect. I would have to rely on the paper trial, but I am simply surmising based on the fact that I had very specifically asked him for that with the forthcoming CQC visit, that having received that from him that would have been forwarded to the CQC for consideration during their visit.
MS LANGDALE: Thank you. Those are my questions.
Questions by LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: Thank you, Ms Langdale. Just one or two from me, if I may, Mr Harvey.
HARVEY: Yes, my Lady.
LADY JUSTICE THIRLWALL: First of all, one of the
things you have been asked to comment on by various people at various stages was the pattern of deaths that are picked up in the Thematic Review occurring between 12 o'clock at night and 4 o'clock in the morning.
HARVEY: Yes.
LADY JUSTICE THIRLWALL: You said that -- well, you referred I think to an Imperial College paper, a research paper. You did refer to an Imperial College paper.
HARVEY: I did, that paper was actually very specifically with regard to increased mortality at the weekend.
LADY JUSTICE THIRLWALL: Yes.
HARVEY: But it is accepted that the risk is also greater at night. That almost certainly reflects different staffing levels.
LADY JUSTICE THIRLWALL: Just before you continue, because the reference you gave us yesterday was to the Imperial College paper, which, as you rightly say, deals with weekends.
HARVEY: Yes.
LADY JUSTICE THIRLWALL: You say it's generally accepted and that's based on what?
HARVEY: That is based on clinical experience, experience of the patterns of mortality in other groups
that I saw in my job and from the publications and the data that we get from NHS England.
LADY JUSTICE THIRLWALL: Thank you. That is not something, I don't think you mentioned, in any of the meetings, or "That is nothing to worry about, it's to be expected". I don't think it is.
HARVEY: I'm not sure I would describe it as to be expected but it is a factor that one recognises, yes.
LADY JUSTICE THIRLWALL: Yes. So just so I understand your thinking. You weren't discounting it but you were saying that you need to bear in mind this particular factor?
HARVEY: I wasn't discounting it but there was potentially another factor that would play into it, yes.
LADY JUSTICE THIRLWALL: Thank you. Then I just wanted to ask you a little bit about the GMC --
HARVEY: Yes.
LADY JUSTICE THIRLWALL: -- because you made it very clear to us that the experience of a doctor even just receiving a letter from the GMC --
HARVEY: Yes.
LADY JUSTICE THIRLWALL: -- can be extremely damaging, even just the first letter?
HARVEY: I -- I would describe it, in some cases, as devastating.
LADY JUSTICE THIRLWALL: Devastating, yes. Can you offer any thoughts as to how we have got to a situation where a first letter from a regulator can have that effect?
HARVEY: I had cause to complain to the GMC on a number of occasions because they gave no thought to how or when they sent their letters out.
LADY JUSTICE THIRLWALL: You mentioned a weekend, I think, didn't you, sent on a Friday.
HARVEY: That's right. I would get doctors contacting me late on a Friday night or at the weekend because they just opened the letter. The GMC in its letter will often offer -- and obviously I am now speaking of practice six years ago --
LADY JUSTICE THIRLWALL: Some years ago, yes.
HARVEY: -- will offer areas of support but, at the weekend, those areas of support aren't available and I'm aware the GMC have done a lot of work because of the recognition of the increased rate of suicide amongst doctors who are under investigation. But just simply getting that letter is sufficient to cause a huge amount of anxiety to not every doctor but to -- to most, I would suggest.
LADY JUSTICE THIRLWALL: Because one of the things that's very striking from the evidence, and it's been said to you is, well, the evidence about fear --
HARVEY: Yes.
LADY JUSTICE THIRLWALL: -- in various contexts but clearly fear about what will happen with the GMC. That seems to me to be a theme.
HARVEY: Absolutely. And there will be word of mouth amongst the medical body with regard to the -- what those who have been through the process have actually gone through. It was, for that very reason, that I was keen to do everything that I could to avoid that happening to those doctors to whom I could see no reason why they -- they should be referred.
LADY JUSTICE THIRLWALL: Yes. Thank you. I am not going to ask you about the detail of that. It was rather the sort of broader picture. Thank you very much. So is this a fair summary: by January 2017, the doctors have given their evidence and I can make my decision about the effect upon them but Lucy Letby was writing to you directly --
HARVEY: Yes.
LADY JUSTICE THIRLWALL: -- with a number of requests, presumably with which she hoped you might comply.
HARVEY: Yes.
LADY JUSTICE THIRLWALL: Did it occur to you, and I appreciate you don't remember the email, now you have had a chance to see it several times, I am sure, in the preparation for this Inquiry.
HARVEY: Yes.
LADY JUSTICE THIRLWALL: But it appears from it, doesn't it, that Karen Rees, who was the Divisional Director of nursing, had given her information that she had received from a nurse about what a doctor had said in a meeting?
HARVEY: Yes.
LADY JUSTICE THIRLWALL: That's what she was wanting to get to the bottom of?
HARVEY: Yes, that's correct.
LADY JUSTICE THIRLWALL: Did it occur to you that that had any echoes of what had happened with the grievance, that there had been a sort of conduit and then a grievance from Letby about something that had been said?
HARVEY: I saw it as an extension of that existing situation. As I think I said, I was uncomfortable with that email from the tone and the content. I can't say what I did with it but I am sure that I would have escalated it to either Alison Kelly or Sue Hodkinson in those circumstances. I certainly wouldn't have
responded and I certainly wouldn't have forwarded any of the information that she was requesting.
LADY JUSTICE THIRLWALL: No, you have made that quite clear.
HARVEY: No.
LADY JUSTICE THIRLWALL: One last thing, and I'm afraid I don't have an absolutely clear recollection of the name of the witness, so I'm sorry about that, somebody else might know it, but when the CQC were in, in February 2016 --
HARVEY: Yes.
LADY JUSTICE THIRLWALL: -- one of the -- I think she was a Specialist Adviser, rather than an inspector but she was overseeing a focus group with the Consultants, not the paediatric Consultants, the Consultants generally --
HARVEY: Yes.
LADY JUSTICE THIRLWALL: -- and a reasonably large number of the Consultants turned up, and she doesn't have many notes but she had a note in her diary which referred to the Consultants complaining about bullying of the Consultants by the medical management and she said that she had come immediately to you to talk about that; do you have any memory of that?
HARVEY: I have no recollection of a conversation to
that effect at all.
LADY JUSTICE THIRLWALL: What would you have thought had she come to you with that information?
HARVEY: Well, my initial reaction would have been huge concern. That wasn't how I viewed the relationship that we had with the Consultant body, and I would have taken steps to -- to investigate it further. In the first instance, I would probably have approached Dr Jameson as the Chair of the Medical Staff Committee --
LADY JUSTICE THIRLWALL: Staff-Side, yes.
HARVEY: -- and Dr Tighe, as the (unclear) BMA Local Negotiating Committee and probably also my senior medical management team, the Divisional Medical Directors. I have to say, I'm surprised that that assertion was made because it was contrary to an independent, validated medical engagement survey that we had undertaken, I believe, in 2015, which actually scored highly in terms of engagement with the Consultant body.
LADY JUSTICE THIRLWALL: All right. Well, thank you. That is -- sorry, did you want to say something else?
HARVEY: Well, I was just going to say that, in turn, I suppose, had they reported that to me, would have actually caused even heightened concern because something had obviously changed in a very short period.
LADY JUSTICE THIRLWALL: Yes, thank you. Does anybody want to correct anything? Good. Well, it's very late but it's not as late as it might have been, which is scant consolation but thank you very much indeed, Mr Harvey. You are free to go.
HARVEY: Thank you.
LADY JUSTICE THIRLWALL: We will rise and start again 10.00 Monday morning. (5.25 pm) (The Inquiry adjourned until 10.00 am, on Monday, 2 December 2024)
Witness: Sir Duncan Nichol CBE: Chair of the Board of Directors
(Proceedings delayed) (10.04 am)
LADY JUSTICE THIRLWALL: Good morning. I'm sorry to have kept you all waiting. Ms Langdale.
MS LANGDALE: May I call Sir Duncan Nichol, please.
LADY JUSTICE THIRLWALL: Sir Duncan, please come forward.
SIR DUNCAN NICHOL (sworn)
LADY JUSTICE THIRLWALL: Do sit down.
Questions by MS LANGDALE
MS LANGDALE: Sir Duncan, you have provided a statement to the Inquiry dated 20 June 2024. Do you have a copy of it in front of you?
NICHOL: I do.
LANGDALE: Can you confirm that the contents are true and accurate as far as you are concerned?
NICHOL: I can.
LANGDALE: You tell us that you have held several senior leadership positions across hospitals at all levels within the National Health Service between 1968 and 1994. These included Non-Executive Director in 1989 for the NHS Management Board, Chief Executive of the NHS Management Executive from 1989 to 1994 and chair of the
board of the Countess of Chester Hospital NHS Foundation Trust from 2012 to 2020. You have been appointed to other roles if you would like to tell us what those are?
NICHOL: Yes, I was appointed as chairman of the Parole Board for England and Wales and I was appointed as chairman of Her Majesty's Court Service.
LANGDALE: And also deputy chair at the Christie Hospital between 2008 and 2012 and a professional Fellow at the University of Manchester between 1994 and 2004?
NICHOL: Yes.
LADY JUSTICE THIRLWALL: Professorial Fellow, I think.
MS LANGDALE: Professorial Fellow, yes. You were, when you were NHS Chief Executive, involved at a time when Beverley Allitt was convicted of four murders, weren't you?
NICHOL: Yes, I was.
LANGDALE: We see from the then Secretary of State, The Right Honourable Virginia Bottomley's addressed information to the Commons, that you were tasked with circulating the conclusions of the Inquiry, so the Clothier Inquiry. You had written to people throughout the health service to be certain that management, nurses, doctors
and all concerned study and observe the lessons of the Inquiry. Do you remember doing that in that role?
NICHOL: The -- the latter part of your question?
LANGDALE: Yes.
NICHOL: No, so for one reason and that was that I had left -- left my post within a month or two of sending out the letter that Mrs Bottomley asked me to send to the service and there was no possibility of follow-up action in that time period.
LANGDALE: If we can go, please, to INQ0017497, page 135. It will come on the screen, Sir Duncan.
NICHOL: Thank you.
LANGDALE: We can see the recommendation at 13: "The main lesson from our Inquiry and our principal recommendation is that the Grantham disaster should serve to heighten awareness in all those caring for children of the possibility of malevolent intervention as a cause of unexplained clinical events." The report wasn't published, was it, the Clothier Inquiry report? It wasn't a Public Inquiry with a published report at the time, was it?
NICHOL: I can't recall. It wasn't a Public Inquiry but I can't recall whether it was published.
LANGDALE: But it was circulated to people and you tell
us that you yourself read it --
NICHOL: Yes.
LANGDALE: -- at the time?
NICHOL: Yes.
LANGDALE: Do you know who was responsible for implementing this particular recommendation, ie making sure that there was a heightened awareness from the events at Grantham within hospitals?
NICHOL: Yes. This -- this was principally I think directed at clinicians and managers in hospitals. But there were those who -- who supervised the hospitals at the district level and regional level who would have responsibility, I think, for looking to see whether they were doing that.
LANGDALE: During your time as chair of the board, were you aware of any training or discussions around this issue taking place within the hospital?
NICHOL: At the Countess of Chester?
LANGDALE: Mm-hm.
NICHOL: Forgive me if I am -- if I'm not picking everything up straight away. I was aware of the safeguarding training for children and indeed took part in it.
LANGDALE: Did governors take part in that as well?
NICHOL: Governors?
LANGDALE: Safeguarding training?
NICHOL: Yes, yes.
LANGDALE: Did you have that as well?
NICHOL: I did.
LANGDALE: Can you remember if in that training what to do where suspicions about a member of staff arose was discussed or was it training about safeguarding, protecting children from actions of family members?
NICHOL: I -- I remember it predominantly being about protecting children from -- vulnerable children in particular from risks in the community and -- and risks that they might encounter. I don't -- I don't recall the detail of the training to any great extent, I'm afraid.
LANGDALE: That can come down, thank you. Well, you tell us in your statement at paragraph 14: "My understanding of when suspicions or concerns about a member of staff's conduct towards a child should be reported to the police was that the police should investigate when no final assurance had been received from any internal or external review." By all means have a look at paragraph 14 as well as I ask my questions, Sir Duncan. You have set it out there for us.
How did you arrive at that understanding?
NICHOL: This was based on my understanding of Speak Out Safely policies and indeed safeguarding policies. I was aware of the responsibilities in general terms of clinical staff at ward level needing to report Serious Incidents. My -- my belief was that they would be then fully investigated and as necessary logged into the system for further enquiry and, if necessary, external enquiry, and if there was still no explanations as to cause of death, then I believe that was timely at that point in time for the police to be -- to be called. I think the board should be party to that decision.
LANGDALE: What was your understanding about where a hospital should report Sudden and Unexpected Deaths of babies, neonates, who should they report those kinds of deaths to?
NICHOL: Yes, my -- my understanding was that that should be reported to the Coroner.
LANGDALE: Any other external bodies?
NICHOL: At the time, I had not -- at the time, I was not thinking of CDOP. Since that time, I am now aware of CDOP.
LANGDALE: What about the local authority safeguarding board or --
NICHOL: I wasn't aware of that at the time.
LANGDALE: So whatever training you had had around safeguarding or child protection, you weren't at the time conscious of working together with the local authority and sharing concerns about children, where you thought they might be being harmed?
NICHOL: Yes, I was generally aware of that but not of the particular named person.
LANGDALE: You mention policies, can we just go to a couple surrounding governance and safeguarding so we have them in our mind. The first is the Code of Conduct, code of accountability in the NHS, INQ0108477, beginning at page 1. I think you highlighted these documents for us, Sir Duncan, or at least some of them. Thank you. If we go to page 5 and we can highlight the role of the chair: "The overall role of the chair is one of enabling and leading so that the attributes and specific roles of the Executive Team and the Non-Executives are brought together in a constructive partnership to take forward the business of the organisation." At the end of that paragraph: "A complementary relationship between the chair and Chief Executive is important. The Chief Executive is accountable to the chair and Non-Executive Directors of the board for ensuring that the board is empowered to
govern the organisation and that the objectives, if set, are accomplished through effective and properly controlled Executive action. The Chief Executive should be allowed full scope within clearly defined delegated powers for action in fulfilling the decisions of the board." Obviously an important role for you as chair of the board at the Countess with Mr Chambers as the Chief Executive and you describe in your statement that that relationship was a professional and warm relationship?
NICHOL: I did.
LANGDALE: Would you like to expand upon that?
NICHOL: We met very frequently. I was in the hospital two or three times a week and I would meet Mr Chambers on some, if not most of -- of those days and we had informal discussions. We would -- we would do walkabouts together in-- in the hospital. We would discuss issues of the day and we did so professionally and openly and in a cordial way.
LANGDALE: Did you ever do a walkabout with him in the neonatal unit --
NICHOL: Yes.
LANGDALE: -- during the events with --
NICHOL: Sorry, yes, I did.
LANGDALE: Yes. When, how often and when do you remember?
NICHOL: In the neonatal unit, I -- from memory I would have visited two or three times.
LANGDALE: In a year period or --
NICHOL: No, in a -- no, in two or three -- over a two or three-year period.
LANGDALE: Did anything particularly take you to visit there one day or was it just part of your generic walkabout?
NICHOL: No, it was, it was part of -- Women's and Children's was a separate block, it was part of going part into that part of the -- of the site and looking at different departments at different times in that -- in that particular building.
LANGDALE: When you went into the neonatal unit who did you speak with and what was it like?
NICHOL: I -- I would speak with whoever the -- the nurse in charge on duty at that -- at that particular shift was. If the ward manager was around I would talk -- talk to her and if there was a junior doctor, I would -- I would -- we would talk to the people as I would on any ward visit to any part of the hospital.
LANGDALE: So is there anything eventful or not that you remember from one of those walk rounds the neonatal unit?
NICHOL: I remember -- I remember a very busy -- a very crowded unit and I think a sense that oh, we are looking forward to the new unit that we were seeking to fund.
LANGDALE: With more space, the new unit with more space?
NICHOL: Absolutely, with more space.
LANGDALE: Can we have on screen now -- and that one can go down, please -- INQ0009246, page 1. This is the NHS Foundation Trust code of governance that was updated in July 2014. If we go to page 12, it's the next page, thank you, if we see four paragraphs down: "The chairperson is responsible for leadership of the Board of Directors and the Council of Governors ensuring their effectiveness on all aspects of their role and leading on setting the agenda for meetings." The Council of Governors, can you tell us something about how they or that worked?
NICHOL: Yes, they are a group that are representative of the bodies in -- in the local community, from the local authority and from inside the hospital, the hospital had three -- three staff members on -- on the Council. The Council is responsible for appointing the Chair and the Non-Executive Directors. I chaired their meetings and ...
LANGDALE: The Council of Governors, where there were
suspicions or concerns about a nurse, that's not where that would have been discussed; is that right?
NICHOL: No, it isn't.
LANGDALE: Why is that?
NICHOL: That -- that was -- where a named -- a named person is in question, for the same reason that the board didn't discuss that in -- in public meetings, this was confidential to a member of -- a member of our staff and was not discussed outside those -- those confidential surroundings of an extraordinary board meeting.
LANGDALE: What was the reason for the confidentiality? If you were, for example, going to say a nurse and not name the nurse, would that still have been a problem to discuss it in those forums, do you think?
NICHOL: I -- I think, I think it would have been a problem. We took the decision to -- we -- we took very few matters into private session and the only time we had an extraordinary board meeting was in relation to a neonatal death. We felt it was -- we felt it was important to talk about that privately at that time.
LANGDALE: Did that limit, when you look back, the number or pairs of eyes on the problem and the risk that may have been posed, the fact that you kept it confidential to the Executives and extraordinary board meetings only
for the Non-Executive Directors?
NICHOL: No, this -- this is a matter that had, had been raised to board level and on the first occasion, our first extraordinary board meeting, we -- we did invite paediatricians to that meeting.
LANGDALE: We will go to that. Thank you. If we look back at this in front of us, the next paragraph: "As part of their role as members of a unitary board, Non-Executive Directors should constructively challenge and help develop proposals on strategy." If we go to page 17 you can see at A.1.G: "The Board of Directors as a whole is responsible for ensuring the quality and safety of healthcare services." Over the page, page 18: "All members of the Board of Directors have joint responsibility for every decision of the board regardless of their individual skills or status." That is at A.1.K. Just below that: "All Directors, Executive and Non-Executive, have a responsibility to constructively challenge during board discussions and help develop proposals on priorities, risk mitigation, values, standards and strategy. As part of their role as members of a unitary board, all Directors have a duty to ensure appropriate challenge is made. They should satisfy themselves as to the integrity of financial, clinical and other information and make sure that financial and clinical quality controls and systems of risk management and governance are robust and implemented." If we go to page 19 at A.3.D: "The chairperson is also responsible for ensuring that Directors and Governors receive accurate, timely and clear information which enables them to perform their duties effectively. The chairperson person should take steps to ensure that Governors have the skills and knowledge they require to undertake their role." We see on page 20: "The chairperson should also promote a culture of openness and debate by facilitating the effective contribution of Non-Executive Directors." Dealing with that point, do you think the Non-Executive Directors had adequate information? You have described how you were meeting with Mr Chambers and others yourself. But did the Non-Executive Directors get as full as information as they might have needed when you look back to make some of the decisions that they were being asked to make?
NICHOL: In general?
LANGDALE: Yes, and particularly we are going to move to the specifics but we are focusing on the issue of the neonatal unit and what the NEDs knew when we come to those board meetings?
NICHOL: In general terms I believe the board -- the board was -- was well informed through the reports we -- we always received from the board assurance framework, from specific reports, from financial reports. So I think we -- we covered -- we covered the ground, the reports were there. The reports because they were voluminous, were red flagged to assist all of us to make sure we focused on the things we should be focusing on. I -- I think the board worked well in that respect in general.
LANGDALE: If we go to page 31. 0031, not the internal page number, the INQ number, we see B.5.C: "The responsibilities of the chairperson include ensuring good information flows across the board, the Council of Governors and their committees, between Directors and Governors and between senior management and Non-Executive Directors." What was your understanding of the information that the Non-Executive Directors got from the senior
management, assuming they weren't at the meetings that you were at with the senior management?
NICHOL: The -- the Non-Executive Directors were at a number of meetings, not least the sub committees of the board which they individually chaired with the associated Executive Directors that were linked to those meetings. So there was frequent conversation in areas of their -- of their special interest -- as -- as it were through those mechanisms. The -- the Non-Executive Directors were also of the habit of knocking on the door of -- of Executive Directors either for a particular reason or generally just to -- just to call in.
LANGDALE: So you encouraged that that they would call in and speak for themselves, if they wanted to, with --
NICHOL: Yes.
LANGDALE: -- any Exec?
NICHOL: Yes, I was happy they did as much of that as possible. And of course the Non-Executive Directors were also in and about -- in and about the hospital talking to a range of people on -- on the visits that they themselves made.
LANGDALE: That can come down and if we can have instead, please, the risk management strategy and operational
policy at the Countess of Chester, INQ0014962, page 1. If we can go to page 3 of this policy. We see at the bottom: "The Board of Directors is responsible for reviewing the effectiveness of risk management throughout the Trust." Over the page, page 4: "... discharges its responsibility via the Quality, Safety and Patient Experience Committee to oversee the ongoing development, implementation and monitoring of all matters relating to quality, safety and patient experience within the Trust." I think you invited people to chair the committees, didn't you --
NICHOL: I did.
LANGDALE: -- from the governors. We know Mr Higgins has suggested -- said in his statement he refers to doing a double take on being asked to chair QSPEC, his lack of medical NHS background was clear and he discussed that with you. Can you remember him saying that?
NICHOL: I -- I don't remember the actual conversation but I understand the point that's being made.
LANGDALE: It sounds sensible, doesn't it, if you have not got that background you might be surprised that you are chairing that one that's --
NICHOL: No, I don't -- I don't actually -- I don't actually agree with that.
LANGDALE: So what did you think was the role of the chair in terms of their own understanding of medical matters to chair QSPEC?
NICHOL: I think -- I think they -- they had the ability to -- to listen, to dissect, to understand the clinical advice that they were receiving from the Medical Director, the Nursing Directors, the Divisional Directors and other department heads that came, had -- they had the ability to assimilate, understand the information, and to stand back from it and make -- make sure that issues were taken properly on board by the committee.
LANGDALE: If we go to page 12 of this document, we see the high-level risk committee's reporting arrangements to the board. We can see there that the Quality Safety and Patient Experience Committee feeds into the Board of Directors?
NICHOL: Yes.
LANGDALE: We see The Council of Governors placed above that. The Council of Governors, if it wasn't a safety concern about a member of staff or a risk about a member of staff, would you share other safety concerns with the
Council of Governors or not?
NICHOL: Yes, we -- we would. If, I mean, for example the gross overcrowding of the Accident and Emergency Department posed risk for the -- for the safety of patients. The fact that patients were not flowing through the hospital. The fact that patients couldn't be discharged adequately, these were all issues which connected to the well-being, if not to the direct safety, but to the well-being of patients and their experience in the hospital and we would discuss that with the Council of Governors.
LANGDALE: Were those minutes public, publicly available?
NICHOL: Yes.
LANGDALE: And you tell us the only issue that you had extraordinary board meetings was about the issue this Inquiry is examining, the --
NICHOL: The extraordinary board meetings, yes. We had -- we had a private meeting about a commercial, a commercial transaction which we felt needed to remain confidential.
LANGDALE: So you -- you would take a decision if you thought it needed to remain confidential but that was sparingly used; was that a fair summary?
NICHOL: It was sparingly used, I would be advised and I usually concurred because it was sparingly used.
LANGDALE: And who advised you about that?
NICHOL: The Director of Corporate Affairs, Mr Cross.
LANGDALE: Mr Cross and what was your relationship with him like?
NICHOL: As -- as with other Executive Directors. As with the Chief Executive. We were a cohesive group that shared -- worked on the principle that there should be no surprises between us.
LANGDALE: You make the point in your statement that the concerns about the neonatal unit weren't managed through this risk management system particularly. Is that what you understood; that it wasn't referred through the risk management system?
NICHOL: Yes, the risk management system works, on risk issues being logged at ward level and -- and escalated as appropriate through the divisional structures to the Quality and Safety Committee. That -- that did not happen.
LANGDALE: But where from February 2016 with the Thematic Review Dr Brearey had raised issues directly with Ms Kelly and I think Mr Harvey had that from about March time, did it matter, really? They were with the people they needed to be with, weren't they, the concerns, and then they could be entered by those people into Risk Registers or in conjunction with Ms Millward if they
wanted to, couldn't they?
NICHOL: They could have done. They perhaps could have done both things, the other being themselves to take those matters straight to the Quality and Safety Committee.
LANGDALE: In terms of -- let me take you to the documents where we do see them logged as risks or see this issue broadly logged as a risk. If we can go, please, now -- that document can go down, it is a different one -- INQ0004657, page 1. We see there, at the top: "Potential damage to reputation of neonatal service and wider trust due to apparent increased mortality within the neonatal unit." That was entered on 11 July 2016. Did you ever see it entered on the Risk Register like that, Sir Duncan?
NICHOL: No, I -- I didn't view the Divisional Risk Registers and I did not see that reference.
LANGDALE: What do you think about the risk that you were discussing by July 2016 being described in that way?
NICHOL: I think it's inappropriate.
LANGDALE: Why?
NICHOL: I don't think a matter of safety, patient safety and the explanation of that should present any reputational risk to the hospital. I think it raises important questions of how we communicate with the community, in the case of neonates, with the parents. But I don't think it's a reputational risk at all.
LANGDALE: It's also described as an apparent increase, when it was known by then that there was an increase, wasn't there, this is a small number and it's a small number of unexpected deaths that was greater than the number the year before and the year before that. That was known?
NICHOL: I don't think there was any doubt about -- about the fact that there was an increased mortality.
LANGDALE: Do you think whoever scripted this -- Ms Townsend tells us she didn't but whoever scripted it, that did not transparently state what the issue was or what the risk was?
NICHOL: I don't think that does. It -- it doesn't refer to the spike in deaths and the number of deaths at that point in time.
LANGDALE: Also that there was a risk to babies that was being assessed in terms of a nurse who was suspected of causing harm and where she was in the hospital at that time. I know at this point she wasn't back on the ward but that was the risk, wasn't it, a risk of --
NICHOL: I am not -- I'm not sure of the timings of --
of the association at that point with -- with this entry.
LANGDALE: If it was the case, that she had been moved from night to day shifts and then moved to a Risk Team, so there were movements within the hospital of a nurse because of a suspicion, that's the risk, isn't it, that's being managed, the risk of the nurse to baby safety?
NICHOL: Being redeployed?
LANGDALE: Yes.
NICHOL: That is the management of the risk.
LANGDALE: That can come down, please, and if we can have INQ0014818, page 157. What this is, Sir Duncan, is the board's assurance framework presented to the Board of Directors on 6 September 2016. So this is how you, coming through the board assurance way, see the risk of the neonates. So if we look at the box on the side, on the right-hand side at the bottom, G2, NNU Risks?
NICHOL: Just scroll.
LANGDALE: It will be highlighted for you, it's very difficult to see.
NICHOL: Yes, no.
LANGDALE: But that's where it appears.
NICHOL: Yes, I have.
LADY JUSTICE THIRLWALL: Are you able to see that?
NICHOL: Yes.
LADY JUSTICE THIRLWALL: That's better now.
MS LANGDALE: And we see there: "Action plan in place. "Weekly Exec monitoring re operational activity and risks. External review to commence 1 September 2016." If we go up further up in the table, the zoomed in one can come down, and if we look at the table at the top, "Potential consequences of the risk", please can we enlarge that box. Sorry, it's not that one, it is the one with the four -- PC1, PC2, PC3 and PC4. They are the four consequences. That is how they are listed, the consequences: "Non compliance with regulatory and conditional contracts, risk to registrations and licence, poor patient experience, impact on Trust's reputation, breach of monitors' terms of authorisation." Again we see "Poor patient experience, impact on Trust's reputation"?
NICHOL: Yes.
LANGDALE: Do you know as a category why those two are linked in that way?
NICHOL: No. I mean, it's not -- it's not a frame --
a frame of reference to me that brings those two items together.
LANGDALE: No. Actually the poor patient experience might understate that in the context of a hospital, there's a risk of serious injury and death, isn't there, in -- there is a risk of serious injury and death if mistakes occur and certainly if there is deliberate harm, that is the risk you are talking about, risk of injury and death?
NICHOL: Yes, those risks exist.
LANGDALE: That can come down, thank you, and we will move, if we may, to the safeguarding policy and that's INQ0009485, page 1. We see at page 3, an Executive introduction to the policy, prepared by Alison Kelly the Director of Nursing, Quality and Environment and the Executive Lead for Safeguarding Children in 2015. Pausing there, did you ever have a conversation with Ms Kelly about safeguarding in relation to the neonates?
NICHOL: No, I didn't.
LANGDALE: Never raised by her?
NICHOL: Not a conversation about safeguarding.
LANGDALE: We see in paragraph 1: "Every adult has a responsibility to protect children and as employees of the Trust we are duty bound always to act in the best interests of a child about whom we may have concerns." Page 30 of this policy, INQ0009485, page 30, we see there under "Speak out Safely: Raising Concerns" it's made clear: "It is the responsibility of all members of staff, medical, clinical or non-clinical, to ensure that high standards of care, treatment and services are prioritised at all times for patients and that they are safely in our care." It continues further down: "Managers have a particular responsibility to protect patients and to handle concerns about their care in a way that will encourage the voicing of genuine misgivings, while at the same time protecting staff against unfounded allegations." So within the safeguarding policy recognised that you need people to speak out with any misgivings about patient safety?
NICHOL: Absolutely.
LANGDALE: Did you at any time think that the fact that the neonates were tiny babies should have afforded them an even greater protection than vulnerable adult patients in the hospital. All patients who are vulnerable need protection, but children have particular
protections afforded to them under safeguarding?
NICHOL: That is my instinct, they can't speak for themselves --
LANGDALE: No.
NICHOL: -- and they would need someone to speak for them so they are in a more disadvantaged position from that point of view.
LANGDALE: And at the beginning of life, with all the hope and expectations that brings for families?
NICHOL: Yes, I agree with you.
LANGDALE: Did you doubt at any time that Doctors Brearey, Jayaram and the other Consultants had genuine misgivings and worries about the nurse?
NICHOL: About?
LANGDALE: Did you doubt at any time that they had genuine misgivings, the doctors, about the nurse?
NICHOL: No, I didn't doubt that.
LANGDALE: Right. You say that with clarity. Was that your understanding, that they --
NICHOL: Yes, I genuinely felt that, that they had those -- those misgivings.
LANGDALE: That can come down. Can I have, please, on the screen INQ0101079, page 60. The Inquiry instructed Sir Robert Francis, King's Counsel, to provide an expert report, Sir Duncan, and this is a helpful summary provided by him from the NHS England issues guidance on Safeguarding. This was a framework assurance framework in place in March 2013 and updated in August 2019 and we see at F: "Information must be shared to protect children and to prevent or detect crime." If we look at the next one at G: "Where it is considered a member of staff poses a risk to children or might have committed a criminal offence against one or more children information must be shared with the local authority designated officer." So the safeguarding test was very clear there, that it wasn't a question of having to investigate when there was no final assurance from any internal or external review, but information should be -- must be -- must be shared to protect children to prevent or detect crime and particularly where it's considered a member of staff poses a risk or might have committed a criminal offence. You didn't need strict proof or certainty or excluding all other possibilities before going to the police. Is that something that anybody told you at the time? This was in place since 2014 but did anyone make that clear to you? This was 2019 but Sir Robert said I have no reason to --
LADY JUSTICE THIRLWALL: You may have answered, did you say no?
NICHOL: I didn't, I didn't, I didn't hear that I was invited, I was wondering whether I had been.
LADY JUSTICE THIRLWALL: Yes. No, no, you had been. We will just take that again.
NICHOL: Thank you, my Lady.
LADY JUSTICE THIRLWALL: We hope we have got the microphones suitably adjusted but we do understand difficulty, so if there is a problem, please just say.
NICHOL: Thank you.
MS LANGDALE: Sir Duncan, highlighted on the screen in front of you, F and G.
NICHOL: Yes.
LANGDALE: This is what 2019 guidance says and, Sir Robert tells us "I have no reason to believe the 2013 edition didn't contain similar requirements". Did anyone discuss this kind of test or when it was appropriate to report the concerns the Consultants had about Letby to the local authority or even the police?
NICHOL: No one discussed the gist of F and G with me.
LANGDALE: That can come down now, thank you. So we can be confident, as you told us, your understanding at paragraph 14 in your statement was what you thought was the case?
NICHOL: That -- that was my -- that was my understanding.
LANGDALE: You say at paragraph 26 of your statement, if you go to that, Sir Duncan: "As chair of the board I would have been expected to be informed if major concerns were shared with any external organisation." You tell us you were aware that Stephen Cross approached the Coroner about the deaths.
NICHOL: Yes.
LANGDALE: I think you told us earlier, but can you clarify, were you ever asked about whether they should be telling the specialist Commissioners or NHS England or any other external body about the deaths?
NICHOL: There were no references to me for -- with regard to those bodies.
LANGDALE: You comment at paragraph 35 what your expectations were of various board members. Can you tell us what your expectation was of Mr Harvey as the Medical Director between July 2012 and August 2018?
NICHOL: That the Medical Director, Mr Harvey, would be -- would be leading on -- on the development of -- of clinical policies in the hospital. He would be advising and in a leadership position with regard to clinical
governance in -- in the hospital which embraced issues of -- of safety of patients in the hospital. He had many other responsibilities in relation to staffing the hospital, not least at Consultant and junior medical levels. But I would draw those out.
LANGDALE: You say here: "... also to maintain excellent professional relationships with the doctors at the Trust."
NICHOL: Absolutely.
LANGDALE: How did he do that generally?
NICHOL: I don't know how he did it but he -- you can't do it without -- without close contact, without communication, without being in the presence of doctors and in their workplaces.
LANGDALE: You refer to likewise for Alison Kelly with the nursing teams. What did you expect from Alison Kelly in relation to the nursing teams?
NICHOL: Again, a Director of Nursing is -- is responsible for -- for the nursing service. That is the effectiveness, the quality, the appropriate staffing of the nursing service, for the development of nurses, for the training of nurses and in the role that she had as Director of Nursing for the safeguarding of patients in the hospital.
LANGDALE: What did you think the relationships were like
when you were chair of the board between the doctors and nurses generally at the hospital?
NICHOL: Generally, I -- I thought, thought we had a happy team that, that worked together. You will always find a hot spot or two somewhere. But in general, I thought we had a cohesive team that was working as a team across professions and with clinical and diagnostic departments and generally.
LANGDALE: You say here at paragraph 36 what you saw Mr Chambers's role was as CEO. Can you just expand on that for us, please?
NICHOL: Mr Chambers in the end was -- was the accountable officer for the operations of, of the hospital. So anything in the hospital would be a matter of oversight and management on the part of the Chief Executive, Tony Chambers, in this case.
LANGDALE: You comment about Mr Cross, Stephen Cross, at paragraph 38. What did you think in your Facere Melius interview, that is the interview you and others did --
NICHOL: Yes.
LANGDALE: -- with the organisation you instructed to look at governance and generally events at the Countess of Chester. What did you think about the quality of note-taking in respect of these neonatal reviews and meetings that you had all been having?
NICHOL: I didn't see the contemporary notes at the time but I observed when I had that documentation available to me through the Inquiry, I -- I thought that wasn't good enough.
LANGDALE: And Mr Cross's notes, because they were, what, short and not complete?
NICHOL: Well, they were difficult to understand, not all of them made it easy to connect the point to -- to who was taking action. There were -- they were short but I found -- I found them difficult to -- to follow.
LANGDALE: You say at paragraph 9: "In general, the records of meetings were well documented. Looking back at the handwritten notes relating to the neonatal deaths, my view now is that they should have been typed up with a clear chronology and an action plan with clear individual responsibility." You felt that that didn't happen; that they weren't the action plans followed up with accountability for who was doing what, is that what you think?
NICHOL: From the -- from the written notes it wasn't entirely clear to me who was following up and I had no sense of whether that was happening or not at the time.
LANGDALE: At paragraph 42, you say: "In my view, it was primarily the people and not the structure or processes in place at the Trust, which were the overriding factor in this tragedy."
NICHOL: Yes.
LANGDALE: Would you like to expand on that?
NICHOL: Yes. I mean, we had -- we had the systems, we had a multitude of systems around governance, around risk management, around safeguarding and -- and I thought they were sound and robust documents and policies and systems. My -- my point was that if people are not observing them or following them, in -- in the way that they should or -- then -- then they are not, they are not I nearly said worth the paper they are printed on, I am trying to find a better expression. But the important thing was it matters that people respond appropriately to the policies. The example of course is of not logging and of not escalating. The policies were designed for that. If the people weren't operating the policies, then the policies were not helpful to the organisation and in this instance, I thought there were failures in following the policies by people.
LANGDALE: Did anyone, for example, tell you whether the Speak Out Safely policy had been followed in this case when the doctors had raised concerns? Did you know
whether that policy had been followed in practice?
NICHOL: I didn't know that.
LANGDALE: Did you know that policy sufficiently well to ask them if they were following that, to ask the Executives: are you following that policy?
NICHOL: Yes, I knew -- I knew that the policy -- to the extent that it was an obligation, a duty, without -- without fear to report concerns as individuals might have seen them or suspected them in the conduct of colleagues. I know -- I knew that was the purpose of the policy. We were aware at board level of reports of how the policy was developing and I -- I felt that it was being followed in general.
LANGDALE: You say in your statement that at paragraph 49 you would have expected the neonatal deaths to be discussed at the Quality Safety and Patient Experience Committee and I am going to take you, if I may, Sir Duncan, to the three references where we find these issues raised in that forum. I'm not sure if you are there for all of the meetings where they are raised, we'll see. But we'll see how they are raised. So the first one is INQ0003204, page 1.
So this is a meeting held on 14 December 2015. And we know of course now the deaths of A, C, D, E and I have occurred by then. We have at page 5 of this a report from Julie Fogarty about a review of neonatal deaths and stillbirths, but both Ms Fogarty and Mr McCormack have been clear with the Inquiry that this was largely an obstetric review?
NICHOL: It was.
LANGDALE: Yes. So tell me what your understanding was about that review, the Fogarty or Brigham Review, whatever you choose to call it?
NICHOL: Exactly that, that the concentration of that review was on the obstetric service and did not raise concerns. The Director of Nursing is reported as saying that she was -- she was comfortable with that report. But I -- I personally didn't see references in that report to -- as I recall it to -- to the neonatal deaths. It was an obstetric report.
LANGDALE: You tell us in your statement at paragraph 54 an external reviewer as far as you were aware had commended the Trust's reviews process. Did you get reassurance from that?
NICHOL: I would have done.
LANGDALE: That can come down, please, and can we have INQ0003178, page 1. This is a QSPEC meeting on
19 September. We see on page 2, so we are in 2016 now.
NICHOL: Yes.
LANGDALE: We see here this is Mr Harvey talking about the RCPCH having given a verbal update on the recently completed review: "The external Review Team had not raised any immediate concerns and the Trust was awaiting the final report." We know of course Mr Harvey -- that in fact the Trust -- the RCPCH rather had recommended an immediate HR process to investigate the allegation made against a nurse. Did you know that at the time of that update being given?
NICHOL: That was not made known to me at any time.
LANGDALE: So do you regard "the external Review Team had not raised any immediate concerns" as accurate when in fact they had recommended an immediate HR process to investigate the allegation --
NICHOL: No.
LANGDALE: -- made? That can go down, please. The last meeting that's mentioned at QSPEC, Monday, 20 February 2017, INQ0002653, page 1. If we can go to page 4, I think you are at this meeting, Sir Duncan, as well. I will give people time, including you, Sir Duncan, to read that summary of the review.
NICHOL: Yes. (Pause) Thank you.
LANGDALE: So at this time, you are being told the Trust had been invited to a meeting with specialist commissioning to discuss the review and documentation had been shared with the Coroner and Deputy Coroner, as you told us earlier in your statement. What did you understand was going to be done where it says: "A meeting has been arranged to review all the case reviews with the paediatricians and the network and following this, meetings with the parents concerned will be set up to discuss the individual cases." In terms of "parents concerned", what did you understand that referred to?
NICHOL: My understanding was that the parents would be brought up to speed with what -- what information -- the information we had received as a result of the -- of the RCPCH Review in relation to in the context of that -- their own baby.
LANGDALE: In terms of the entries that we have just gone to, do you think in fact the Quality and Patient Safety Committee had very much or adequate information
surrounding what was happening on the neonatal unit and the issues that were being discussed?
NICHOL: The -- the matter hadn't -- hadn't been escalated to the -- to the Quality and Safety Committee in -- in advance of the board meeting in July 16 at which point the board took over.
LANGDALE: Yes. So what we see is effectively they weren't discussing the issues that we are going to come to when we come to the board minutes.
NICHOL: They hadn't --
LANGDALE: That was you and the board finally and not through this committee. Looking back, do you think more should have been discussed at this committee or not?
NICHOL: Yes, the committee should have been -- should have been alerted from early stages about the -- the increase in, in mortality in -- in -- in my view.
LANGDALE: Do you think each unexpected baby death should have been referred to that committee for discussion or not?
NICHOL: I'm not sure.
LANGDALE: But a cluster of deaths by the time of --
NICHOL: Yes.
LANGDALE: -- those three deaths in three weeks, what we see of course is the stillbirth in neonatals combined in
that first reference. But the neonatal deaths in a different unit and in rapid succession would you have expected those to have been discussed --
NICHOL: Yes, cluster, yes.
LANGDALE: -- more thoroughly. Was in your experience QSPEC better at giving actions and follow-ups and making sure that happened? Was QSPEC as a committee effective in stating actions and making sure the actions were followed up or not?
NICHOL: I'm really sorry. I don't know quite sure what's happening, but I missed the early part of that.
LADY JUSTICE THIRLWALL: Let's try it again.
NICHOL: Thank you.
MS LANGDALE: This committee.
NICHOL: Yes.
LANGDALE: In your experience of it generally?
NICHOL: Yes.
LANGDALE: Was it effective in following up action plans?
NICHOL: In general that was my experience of it. I was clearly not closely connected to the actions of the Nursing Director and the Medical Director and indeed the chair outside of the meetings. But my sense was that matters were followed up as per the action plan.
LANGDALE: So if those early clusters of deaths had been reported to that committee, do you think the action
plans and who was responsible for what might have been followed up more effectively?
NICHOL: Yes.
LANGDALE: Can you explain why these deaths weren't discussed at this meeting, who set the agenda for these meetings?
NICHOL: The agenda was set by -- jointly really by the Director of Nursing and the Medical Director with the chair, I can't -- I can't explain.
LANGDALE: That can come down then and let's go to the 30 June meetings that you mentioned and the first meeting you have, we can have it on screen, you may not need to go to it but it's INQ0003361, page 1. We know, Sir Duncan, on 30 June you have a meeting with the Execs and then you have a meeting on the same day with the paediatricians and some of the Execs?
NICHOL: Yes.
LANGDALE: Two meetings on one day. This is the first meeting. You can have these notes to assist you if they do and there is another page of them. You also refer to it from page 58 onwards in your statement. Can you tell us about this meeting with the Execs?
NICHOL: Yes. In my understanding my recall of this meeting was that it was in anticipation that there would be the extraordinary board meeting to follow in a couple of weeks --
LANGDALE: Mmm mm.
NICHOL: -- in preparation and in anticipation.
LANGDALE: Who -- tell us what was discussed in this meeting and tell us when you first became aware of this downgrade to a Level 1 and what it meant. Was there any discussion before this meeting, how did this come to your attention?
NICHOL: No, for me that was the first time that I had heard about the unit being downgraded to Level 1.
LANGDALE: So who called this meeting?
NICHOL: I don't know who called it. I didn't. I wasn't -- I didn't chair it. Mr Cross and Mr Chambers I think, I think would have been responsible. But the answer is I don't know. I don't know who called the meeting.
LANGDALE: But we see at the beginning: "Mr Harvey: we cannot accept that the unit is safe despite there ..." Then the notes finish And you say: "Did they say they would go to Level 1? Is that just Special Care Baby Unit?" So what did you think when Mr Harvey said "we can't accept that the unit is safe", what did you think he was
saying about the unit?
NICHOL: I think he was saying that we had commissioned an external review to seek to understand and to find answers to the questions that we hadn't got answers about; namely the unexplained and unexpected deaths. And until that review reported, we couldn't be sure.
LANGDALE: When did they first tell you about the unexplained and unexpected deaths?
NICHOL: This was -- trying to separate what I knew then from what I know now, my first knowledge of the unexplained deaths was at the -- at the board meeting itself in July 16 and through -- via these preparatory meetings.
LANGDALE: So at this point, you have been told that the review supports going down to Level 1, is that your understanding?
NICHOL: Yes.
LANGDALE: Then we see Alison Kelly say: "How do we manage the nurse and unit?" Looks like: "Could nurse go to police/NMC?" What was said then?
NICHOL: I don't recall that conversation.
LANGDALE: If we go over the page of the notes. There's reference to [Child A]'s baby death and an Inquest, obtain
referral for death. Did you remember that baby being discussed or not?
NICHOL: I'm afraid I don't.
LANGDALE: Mr Chambers says: "Can we decide what we are doing? Review two weeks. Staff member ..." And it's referred to: "Clear articulation of Consultants' concerns." That action appears to be Sue Hodkinson. Do you remember what you were being told at this meeting about the Consultants' concerns about a staff member or not?
NICHOL: No, the first clear recollection I have of that is when the Consultants themselves talked to the board at the extraordinary meeting.
LANGDALE: If we go further down you say: "Commission in-depth review. It will take as long as it takes. Unit will not be operating the same as it is now. During period nurses will have to be redeployed or visibility ..." It's difficult to see what's said there, can you remember?
NICHOL: I haven't got this at all in front of me.
LADY JUSTICE THIRLWALL: You haven't got it in front of you?
NICHOL: No.
LADY JUSTICE THIRLWALL: I'm sorry.
NICHOL: I have got one page.
MS LANGDALE: Yes. If you look where it says "DN" three quarters of the way down, can you see it highlighted in green?
NICHOL: Yes.
LANGDALE: That is you, that is your contribution there.
LADY JUSTICE THIRLWALL: If you just want to take a minute to read through it.
NICHOL: Got it. (Pause) Yes, got that.
MS LANGDALE: Does that remind you what you may have been saying there?
NICHOL: I -- just -- just what it says in the, in the sense that we needed to take some actions which would involve the redeployment of -- of the nurse, the downgrading of -- of the unit which I think was happening and -- and a need to find out what was going on through external -- external help.
LANGDALE: Rather than one nurse, does it look like you are saying during the period nurses will have to be redeployed -- that you are more worried about all of the nurses in the unit or not; you can't remember?
NICHOL: No, I don't remember talking about nurses or a nurse.
LANGDALE: All right. So at the very end: "World going forward. Bristol review report." If we can just highlight the contribution at the end. Can you shed any light on that or not?
NICHOL: I think my reference would have been I think then to the complexity and challenge of -- of communications in relation to matters such as this.
LANGDALE: What sort of challenge in communications?
NICHOL: Just that we needed to be extremely well prepared, what -- what did we need to communicate? And how could we be clear about the messages that went out to -- to the public, to mothers; we had to get that right.
LANGDALE: That can come down, please, and if we can have instead INQ0006023, page 1. These are notes of the next meeting, later in the day.
NICHOL: Yes.
LANGDALE: When you do meet with some of the paediatricians and Mr McCormack.
NICHOL: Yes.
LANGDALE: If we go to page 4, Dr Ravi Jayaram's concerns, we can highlight there and Jim McCormack at the bottom as well.
What's being discussed, if I can help you, Sir Duncan, is whether the Royal College should be doing a review or not and it looks like Dr Jayaram is raising concerns about a particular member of staff and Mr McCormack's saying: I don't think it's fair to ask the College to do the forensic review, it's not what the College does. Can you remember that now?
NICHOL: Only -- only as reminded by the note.
LANGDALE: Right. So we should take it from the notes. You don't remember that that was the issue being discussed?
NICHOL: No.
LANGDALE: Can you remember the impact of anything the paediatricians said about the concern of a nurse now? Do you remember that or not?
NICHOL: I -- I don't, I don't have a clear recall of this, of this meeting at all.
LANGDALE: We do know from Ms Hodkinson's note which was a fuller note that Mr McCormack said: this is a Beverley Allitt/Shipman situation being raised or something like that. He mentions Beverley Allitt case and the Shipman case. Did that make you sit up when you heard that?
NICHOL: I didn't -- I don't recall Dr McCormack saying
that.
LANGDALE: If we go to page 6, finally. If you look there, the reference to "sweet spot" and you appear to be saying: "The review has to take its course, say two months. May get some glimpses ..." Or something. Then it says: "May be inconclusive, may say unthinkable." So it looks as though you are saying the review could take two months and it may say the unthinkable. And there's reference we know, the doctors talk about thinking the unthinkable, that someone might be killing or harming babies. Can you remember that, "may say the unthinkable"? You thought that that review might do that?
NICHOL: I remember -- I remember thinking will this review give us the answers we need? I -- I don't remember, I don't remember anything else from that meeting.
LANGDALE: It looks as though you have landed on, say, two months; you know, it might take two months?
NICHOL: Yes.
LANGDALE: We know, and I am not going to take you to it, Sir Duncan, there is another meeting of QSPEC on Monday, 15 August. For everybody's reference it is INQ0003176,
page 6 but we don't need to go to it, where Mrs Rees advises it could take up to six months for the report to come from the RCPCH. So it did take longer, didn't it, than this meeting anticipated when you said two months?
NICHOL: It did.
LANGDALE: If that note can come down, please --
LADY JUSTICE THIRLWALL: I'm sorry, Ms Langdale, just before we leave that note. If you would just look at the same page and then three lines down from "may be inconclusive". I just want to ask you if you can remember what you meant here. It looks like: "Difficult between two weeks (nurse) and review (six weeks)." I think earlier in the notes of the meeting there's a note about the fact that she's on two weeks' annual leave.
NICHOL: My Lady, I can't -- I can't -- I can't remember -- I can't remember this. If it had been more expansive it might have refreshed my memory today.
LADY JUSTICE THIRLWALL: It doesn't now.
NICHOL: I'm sorry.
LADY JUSTICE THIRLWALL: I mean, we're just really trying to understand what you -- what this is trying to record.
NICHOL: Yes.
LADY JUSTICE THIRLWALL: I suppose it's simply there's two weeks when she's on leave and the review is going to take six?
NICHOL: I -- I -- I don't know what the two weeks is referring to.
LADY JUSTICE THIRLWALL: The fact that she was on annual leave.
NICHOL: Okay.
LADY JUSTICE THIRLWALL: We see that earlier in the meeting.
NICHOL: I don't remember this, I don't remember.
LADY JUSTICE THIRLWALL: You don't remember it at all. All right.
NICHOL: This part of the meeting.
LADY JUSTICE THIRLWALL: We will make of it what we will. Thank you.
MS LANGDALE: That can come down, please. If we can have INQ0003174, page 1. This is just a list of names, Sir Duncan, and the same overleaf. This was the Silver Command that was set up in July, so this is 8 July.
NICHOL: (Nods)
LANGDALE: Can you tell us anything now from memory what the Silver Command was looking at? You are listed as
being there --
NICHOL: Yes.
LANGDALE: -- in that boardroom with about 36 people in there or being given jobs. Can you remember what that was all about?
NICHOL: I -- I think it was in anticipation of the -- the actions that would be taken in July and August. A -- a great many of them would have great effect on the hospital, on the community, on the mothers and we just needed to -- to prepare for what would be a very demanding communications exercise, an exercise in making sure that what followed from the decisions that were taken in July were -- were carefully thought through.
LANGDALE: What were the key messages that needed communicating at that time?
NICHOL: At -- the messages that I think needed, needed to be communicated were: the closure, the closure of the -- the downgrading, the downgrading of the unit to a Level 1. I thought it was also important for people to understand that we were looking at seeking external help so that we could understand events in the neonatal unit. That was as far as I think the communications should extend.
LANGDALE: Did they show you anything that was going to
be published in the press about communications, did you get to see that in advance?
NICHOL: I don't remember seeing that in advance.
LANGDALE: Who would sign off communications or press releases on such an important topic?
NICHOL: I would -- I would expect the Chief Executive to sign off.
LANGDALE: But you met him quite frequently. Would he share a draft with you or a final draft with the press or not?
NICHOL: He didn't share that with me.
LANGDALE: Did you understand at this time two TPN bags relating to the deaths of two babies, O and P, were stored in the hospital in case they needed to be forensically examined later? Did you understand at this time that those bags had been retained in case they were needed by the police later on?
NICHOL: No, I didn't.
LANGDALE: If someone said to you "we are keeping these bags in case", what would you have thought?
NICHOL: I -- I would have asked the question but I would have said well, you know, "Why? Can you explain?"
LANGDALE: And if someone said: well we are just waiting for final assurance as to whether there's a natural
cause of death here, or something similar, would you have accepted that and said just wait until you have got that final assurance before you go to the police?
NICHOL: I can't be sure, but I think I likely would have accepted that.
MS LANGDALE: Thank you. I think that's probably a good moment to break before we go to the Board of Directors meetings.
LADY JUSTICE THIRLWALL: Thank you. So we will take a break now for 15 minutes.
NICHOL: Thank you.
LADY JUSTICE THIRLWALL: We will start at 25 to 12.
(11.19 am)
(A short break)
(11.35 am)
MS LANGDALE: Can we have on the screen, please, INQ0103147. Sir Duncan, just picking up what you were saying earlier about communications being important, this is the communication that followed the downgrade. Can you just have a look for us, please.
NICHOL: Yes.
LANGDALE: That communication didn't make reference, did it, to Sudden and Unexpected Deaths or that the doctors or paediatricians were concerned and suspicious about the actions of a nurse?
NICHOL: No.
LANGDALE: But rather it says: some of our most poorly babies with high dependency needs in some way may have increased the neonatal mortality rates. Do you think that was a transparent communication or accurate?
NICHOL: I think at the point we were, it -- it -- it was the right communication and it was transparent. If I could add. The -- the enquiries were, were going to find answers, the indications that the board had had from Executives was that the causes could be multifactorial. At the first board meeting we heard about a suspicion but the causes could be multi-factoral from acuity to heightened activity. So we had -- we had no -- no basis for I think going further than that. So I -- I don't remember seeing that at the time but as I read it now I am, I am content, content that that was a fair press release at that time.
LANGDALE: Thank you, that can go down. We know you had a meeting on 14 July, a board meeting, and we know you had had conversation with the Executives before that meeting. So you knew what the issue was by 14 July?
NICHOL: Yes.
LANGDALE: The question is: what did your colleagues on the board know? We have got a note from one of the Non-Executive Directors, Ms Fallon, at INQ0102040, page 2, if that can go on the screen. This was on 5 July. You said you didn't discuss neonatal deaths at the public board meeting and you wanted to keep that to an extraordinary board meeting and it looks as though there was a private Non-Executive Director meeting on 5 July. Do you recollect that now, that having chosen not to put it in the public meeting, you spoke with your fellow Non-Executive Directors to tell them what was going on?
NICHOL: Yes, I would have -- would have expected to give advance notice of why we were meeting on the -- as an extraordinary board and I think that was the purpose of that --
LANGDALE: Yes?
NICHOL: -- information.
LANGDALE: It says there: "External review, unexplained unexpected. Reducing the unit to Level 1. Closing intensive care cots. Won't be delivering babies below 32 weeks. Difficult message." I can't read the writing to be able to tell us with
that and then a reference to an internal review. So what was your communication with the Non-Executive Directors about? Can you remember now meeting with them?
NICHOL: I can't, I can't remember that meeting. I -- I -- the timing of the meeting suggests that I would have wanted to give them some forewarning of the extraordinary board meeting.
LANGDALE: So if we take that down, please, and then have INQ0003238, page 1. This is the extraordinary board meeting on 14 July. If we go to page 4. We know doctors Brearey and Jayaram are at the meeting. It records four paragraphs down: "Dr Jayaram stated that what he was to say next was confidential and not to be minuted." Were you content to agree the request that it should not be minuted?
NICHOL: Yes, I agreed to that.
LANGDALE: In retrospect, you have said it would have been helpful to have fuller minutes, do you think it would have been helpful to have that minuted and why shouldn't it be?
NICHOL: Well. it's a balance, but I think in this case it is more helpful to hear what people want to say and that -- and that they are prepared to say it in
confidence --
LANGDALE: Sorry.
NICHOL: Sorry.
LANGDALE: Better to say it in confidence, you said?
NICHOL: Yes.
LANGDALE: So what do you remember now Dr Jayaram saying at that time?
NICHOL: I recall that he was expanding on the fact that not just that the babies were -- who had died were not expected to die but that I recall also that he mentioned they were failing to respond to resuscitation in a way that he would have expected. I can't remember whether he then reiterated the concerns around the association of Letby with the rotas and the timings of -- of the deaths. Dr Brearey was the main spokesman for the paediatricians on that issue. I can't remember whether Dr Jayaram mentioned that as well. I think he probably did but I can't -- I can't remember.
LANGDALE: Did he use the expression "the elephant in the room"?
NICHOL: Yes. Yes, he did.
LANGDALE: What does that mean or what did you take him to mean by "the elephant"?
NICHOL: I think -- I think by that he meant the suspicions about Nurse Letby's association with the timing of the deaths.
LANGDALE: One of the meetings' discussion points was whether she should be supervised, wasn't it, with whether they should be supervised working on the clinic because the review was going to take longer should she still be able to work there while she was supervised?
NICHOL: Yes.
LANGDALE: The elephant in the room was him saying; I don't think that's safe and we shouldn't have that?
NICHOL: I -- I'm not sure, I remember the discussion around being supervised. I think there were issues as to whether that would be enough. There were issues about whether that was a practical thing to do in terms of the scarce resources on the unit, for example. I -- so there were questions raised about is this -- is this -- is this enough? Is this appropriate?
LANGDALE: Then at page 5, we see what Mr Wilkie says in the last but one paragraph, if you could -- we can highlight that and have a read of that. (Pause) "Mr Wilkie stated he accepted that no evidence to say is due to an individual but there is no evidence to say the contrary ... He understands the stakes here and in previous discussions there was considerable disquiet
about an individual." And Dr Brearey expresses anxiety. "People do have anxiety and there's definitely discomfort." If we go over the page, to page 6 in the third paragraph. Mrs Hopwood asked how practical it was for the staff member to work under supervision. If we go to page 7. "Mr Wilkie said as a layperson he did not know how effective the measures will be and asked how confident the Trust were that we were removing all risk." Did you think, Sir Duncan, it was necessary to remove all risk at that time, some risk or how did you view what you were doing, the exercise that you were all undertaking?
NICHOL: I thought the measures we were taking should be the measures that were sufficient to safe -- to safeguard the unit, to ensure the safety of babies on the unit.
LANGDALE: If you go to the bottom of that page: "Sir Duncan stated that there is a major future exercise to look at everything and noticed that the Trust is committed to do this. "In the meantime the previously expressed concerns about the individual, actions are being taken and it is
agreed that these are reasonable as we cannot see a single hypothesis". What did you mean by a single hypothesis?
NICHOL: I think, okay, that our attention had been drawn in the earlier part of the meeting to the possibility that there were multiple factors that could be bearing on why the children had died, including the suspicion, but multiple factors.
LANGDALE: Who did you understand that from, that there was multiple factors?
NICHOL: From the introduction to the meeting by Mr Harvey and principally Mr Harvey.
LANGDALE: At the end: "Dr Jayaram replied the only alternative is to go straight to the police and that they would want hard evidence. "Mr Cross outlined his understanding of what action the police would take if they were called in to investigate this matter." What do you remember now Mr Cross saying about what action the police would take if they came in, do you remember?
NICHOL: No, I don't remember what he actually said in amplification of that -- of that paragraph.
LANGDALE: Some witnesses have commented on reference to
blue tape and how the --
NICHOL: Yes, I saw that later elsewhere but at the time I didn't -- I don't recall that.
LANGDALE: When Dr Jayaram said that they would want hard evidence did you agree with that or did you think about that at the time or not?
NICHOL: I -- I thought it would be in everybody's interests and we would be in a much stronger position of course to call the police in if we had hard evidence. There -- there would have been no debate. If we had hard evidence, we would have called the police.
LANGDALE: When you heard the doctors say that they were suspicious --
NICHOL: Yes.
LANGDALE: -- that this nurse had caused the sudden and unexpected deaths, they had no natural explanation for the deaths?
NICHOL: No.
LANGDALE: Experienced doctors? Did you -- did you not consider that as evidence, that was your evidence; these baby deaths were not medically explained and they were suspicious about her, that was the evidence, the deaths not being understood?
NICHOL: Not sufficient at the time, and forgive me if I interject something slightly inappropriate here. Had Dr Jayaram not indicated to us his view that the police would need hard evidence, I was influenced by that at the time. The police will need hard evidence.
LANGDALE: You say at page 9: "Sir Duncan said that in light of the data if we take the basis that it was proportionate to call the police, we would." What did you mean by "proportionate to call the police"?
NICHOL: If we had enough -- if we had enough grounds for calling the police in the context of our discussions with the paediatricians at that meeting.
LANGDALE: You say "we recommend to the board". When you say "we", who would "we" have been?
NICHOL: That would have been me. I would have been summing up the recommendation, I think.
LANGDALE: Is it you and the Execs "we recommend", or -- it is unusual, isn't it, it is not "I recommend as chair", it is "we recommend"?
NICHOL: Yes -- no -- are we comfortable? Is this where the board is after hearing what we have heard?
LANGDALE: At the end, Mrs Hopwood stated she felt this was fine. Another board meeting should be held post review. That can come down. We know that following that
meeting, Mr Wilkie went to speak with Alison Kelly because he was concerned about Letby being on the unit under supervision and whether that was adequate or not. So you were saying earlier you thought the Non-Executive Directors could go to the Executives, that appears to be what he did and he remembers now pushing back on that point. Do you remember having a further conversation with Mr Wilkie about that or not? You don't know if you did?
NICHOL: Not at the time, I don't think I was around when he sought Ms Kelly out and I -- I didn't know he had made that approach at that time.
LANGDALE: But we know he tells us that Ms Kelly said she would put his views to the Chief Executive and received an email the following week advising that Ms Letby would be moved from the NNU when she returned to work and that indeed happened, she was redeployed to risk, wasn't she, the Risk Team?
NICHOL: Yes, I think a number of pressures were occurring at that time, Mr Wilkie's own intervention and the paediatricians who were maintaining that this wouldn't work.
LANGDALE: Do you remember having a discussion with the Executives about redacted versions of the RCPCH and whether they should be sent and who should get redacted
versions when the reports came in?
NICHOL: No, I -- I remember being informed that the redacted version was because of the confidential reference to Lucy Letby and -- and that's all I recall about that. But I think, yes, let me stop there.
LANGDALE: Did you see the confidential version yourself?
NICHOL: Yes, I did.
LANGDALE: All of it, so you saw the green text about the nurse?
NICHOL: I -- I recall asking for -- for the full version.
LANGDALE: Do you remember it saying something about the nurse and the HR process that needs --
NICHOL: No, I don't, no, I don't. Not from the full version. I -- I remember discovering that from the covering letter that I saw -- that I have seen.
LANGDALE: But you didn't spot any gaps in the version that you saw?
NICHOL: I didn't, no.
LANGDALE: You didn't see --
NICHOL: No.
LANGDALE: -- an appendix not there that had been referred to or anything like that? Because sometimes you can tell if you have got a version that's got less in it, can't you, because things are missing out when
you read it?
NICHOL: Yes, I didn't see anything like --
LANGDALE: You didn't see anything like that?
NICHOL: No.
LANGDALE: So you think you got the full version there is a note INQ00042999, page 1, and it looks like it's a meeting with you and the Execs, Mr Cross, Mr Harvey, Mr Chambers. You see at the bottom: "Distribution? Parents, Coroner, in-house paeds team, network." What did you think the position was for the paediatricians in terms of seeing that report?
NICHOL: I would have thought -- I thought it was essential that they should see it.
LANGDALE: The full report?
NICHOL: Yes.
LANGDALE: Did you ask or check whether they had?
NICHOL: No.
LANGDALE: Do you think you might have done that, looking back now?
NICHOL: I might have done, indeed.
LANGDALE: Was there a reason you didn't check with that point at the time?
NICHOL: No. It was not normal practice to check on the actions of -- of the -- of the Executives. They did their job.
LANGDALE: And it does say "?", doesn't it?
NICHOL: It does.
LANGDALE: "Distribution?" Like: who are we thinking of? When you look at that list now, have you any memory -- and don't guess if you don't -- where you were suggesting or agreeing that the report should be sent to?
NICHOL: I have no memory.
LANGDALE: But you knew there were two versions, if you like?
NICHOL: I did.
LANGDALE: Redacted and unredacted and what was the principle about the redacted one?
NICHOL: What was the?
LANGDALE: What was the principle behind it, what was the reason?
NICHOL: Well, I believe it was to omit the confidential information about a member of staff.
LANGDALE: So it was protecting a member of staff --
NICHOL: Yes.
LANGDALE: -- and not circulating information about her?
NICHOL: Yes.
LANGDALE: And with that principle in mind, how far would
you have extended that, who is entitled or who would you have thought was entitled to know about that member of staff?
NICHOL: Yes, I was -- I would have certainly have expected the full board to be -- to know about that.
LANGDALE: Did the full board ever receive the full report?
NICHOL: I don't know.
LANGDALE: We are going to hear from the Non-Executive Directors so they will be able to tell us that.
NICHOL: Right.
LANGDALE: Do you remember suggesting if they didn't, that they should see the full report?
NICHOL: I believe they should see the -- certain that they should see the full report.
LANGDALE: But I suppose you would be at the meetings and if they didn't see the full report, you would have known that?
NICHOL: I wouldn't necessarily be at the meetings. I -- I think the report was briefly shown at the meeting but I would have expected more -- more time to digest the report outside the meeting. I had that opportunity.
LANGDALE: Over the page at this meeting with you and the Execs in December, in the middle of the page, there's a reference to the grievance of Lucy.
"Apology requested from paediatricians. [Question] what is the apology for." This is in December. When did you first know about the grievance?
NICHOL: I can't remember when I knew about the grievance. I think -- I think it would have been more or less as soon as it was raised. What I do remember is that the -- the chairman of the Staff-Side sought me out for a personal conversation and said -- to ask me if I had heard about Lucy -- Lucy Letby and the grievance. So it would have been early on, prior to it actually starting.
LANGDALE: I think you are right, you were actually sent -- if we go to INQ0002748, page 1, you were copied into the grievance itself.
NICHOL: I don't recall that. But fine.
LANGDALE: Ms Cooper says: "Please find attached a copy of a grievance ..."
NICHOL: Okay.
LANGDALE: "... we have submitted on behalf of our member. I appreciate you will feel you cannot get involved but I believe you should know how a member of staff is feeling within the Trust. As this has now dragged on for several weeks, my member has been left with no other alternative."
So this is 8 September. You of course have had that meeting in July, so presumably you know which member of staff or what's this about?
NICHOL: Yes.
LANGDALE: Were you normally copied into grievance procedures or --
NICHOL: No.
LANGDALE: -- processes?
NICHOL: Never. This was Hayley Cooper who I had an open-door policy with thought she would knock on my door and show me.
LANGDALE: What did you think when you got that, when you knew -- made the connection between the nurse and who it was?
NICHOL: I -- I thought it would proceed, this is an entitlement, a grievance had been lodged and it would proceed. But I would play no part in that.
LANGDALE: Did you read it? It looks like it was attached to the grievance itself.
NICHOL: I can't remember.
LANGDALE: No. If we go back to the meeting we were on before INQ0004299, page 2, we see that: "Grievance of Lucy. Apology requested from paediatricians ... what's apology for. Victimisation." What did you make of the fact that an apology was requested and we see here, Mr Harvey: "Apology for behaviour, language used by paediatric Consultants." Did you ask anything about that apology and why it was having to be made and what Mr Harvey was referring to when he said "apology for behaviour, language used"?
NICHOL: Yes, I was aware of the -- the background to the concerns about remarks that had been -- had been made about -- about Lucy, "angel of death" type references and so forth.
LANGDALE: What did you make of all of that?
NICHOL: I thought that was inappropriate.
LANGDALE: Did you accept that it had -- well, what did you think had happened? Did you think the Consultants had said anything like that?
NICHOL: I didn't know whether they had or not. This was the inference, though.
LANGDALE: Did you say at the time: do we know if that's right, or not?
NICHOL: No.
LANGDALE: You just accepted they had done that?
NICHOL: No, the inference was that they had said that and I -- I -- I didn't make further enquiries.
LANGDALE: Do you think you might have done, given that you knew they had raised genuine concerns you told us
earlier about this nurse, would you have liked to know more before what that was being suggested they had done?
NICHOL: Not whilst matters -- you know, matters were still, as it were, progressing to try and get to the bottom of everything.
LANGDALE: If we go to page 3, halfway down, Mr Chambers following up -- to follow up with paediatric Consultants. "Duncan Nichol to represent NEDs and relevant Execs. Meeting to include behaviours and outcome from meeting with Lucy." So were you being asked to do anything in terms of representing the Non-Executive Directors and the relevant Execs on this issue about the Consultants' behaviour or what, what do we take from that?
NICHOL: I -- I don't think -- I don't recall being -- I am trying to determine what the timescales are, are here. I don't recall being asked to do anything. I would have been invited to the meeting later in January with the Consultants, I think it was the 24th, which Rachel Hopwood attended on my behalf, I -- I wasn't able to go but I don't recall being asked to become involved in -- in any other matter in any capacity.
LANGDALE: Did you communicate your view that you did
think it was inappropriate "angel of death"-like comments?
NICHOL: No, perhaps conversationally, I wouldn't have expected that. But not -- not formally in any way.
LANGDALE: But there was no challenge when that was put to you to say: hang on a minute, what's your evidence for that? They've raised genuine concerns, you need to think about that. You didn't say anything like that to --
NICHOL: No, it was -- it was coming from senior people who were relaying that they had heard this and I took -- I took that in good faith at that time.
LANGDALE: Well, we have seen it. Mr Harvey tells you, so you took that to be right?
NICHOL: Took that?
LANGDALE: You took that to be right?
NICHOL: I did take that to be right.
LANGDALE: If we go, please, to INQ0003518, page 1 and over to page 2. This is documents in preparation for the board meeting on Tuesday, 10 January. If we go to page 2, we can see the recommendations from Mr Harvey --
NICHOL: Yes.
LANGDALE: -- to: "Accept the report of the Invited Review which is attached.
"Support the Executive in implementing the review recommendations and issues. "Support the Executive in assisting the staff member's return to work on the neonatal unit." So that's what the board is invited to consider?
NICHOL: Yes.
LANGDALE: Because the RCPCH Review has come back. If we go to page 4., we see Mr Chambers setting out -- sorry, INQ0003237, page 4. So these are now the minutes -- the meeting minutes themselves as opposed to the recommendations. We see there at paragraph 5: "Mr Chambers stated there is an important set of consequences for people and for one individual. There's an unsubstantiated claim that the issue is down to one individual's actions and behaviours. We did explore supervised practice for the individual but this was not supported by clinical colleagues." So to be clear in the meeting Mr Chambers is saying an unsubstantiated claim that the issue was down to the nurse; yes?
NICHOL: Yes.
LANGDALE: He also says in the first part of that paragraph: "... there is an important set of consequences for people and for one individual." So how did you hear that? "Consequences for people and for one individual"; what did you think that meant?
NICHOL: I'm not sure now what that, what that -- that meant. Let me just read it again, if I may.
LANGDALE: Of course.
NICHOL: No, I -- I don't, I -- I can't, I can't interpret that now.
LANGDALE: Let's have a look at the second paragraph on page 5, if that helps. "Mr Chambers has said to the individual and their family that we will manage as best we can a safe transition back to the unit. But you see from her statement this may be tricky, it may not be possible in the end but we will do everything we can. The recommendations from the grievance and some of the unprofessional behaviour from the Consultants will mean that we are seeking an apology from the Consultants for their behaviour and verbal statements which border on victimisation. This is deeply uncomfortable." So it looks there, doesn't it, as though Mr Chambers has already spoken to Letby and her family about managing the safe transition back to the ward. Then it refers to the fact that they are seeking an apology from the Consultants. Did you see this at the
time as a big u-turn or not from the supervised practice there was then a redeployment and then suddenly it is after this grievance she's coming back on the unit. Did that make sense to you at the time?
NICHOL: Not, not a massive change. If -- if the level of supervision was adequate ultimately to ensure the safety of the unit, then redeployment did that without any uncertainty.
LANGDALE: We see further down: "Mrs Fallon referred to members of staff hearing comments that from the board's perspective this is unacceptable behaviour and Mr Wilkie felt the decision was right but the behaviours were not." So expression of the behaviours of the doctors, as far as the board was concerned, from your colleagues as well as yourself saying earlier you thought it was inappropriate if that's what had happened?
NICHOL: On this -- on the basis that these behaviours had taken place, colleagues felt that wasn't appropriate.
LANGDALE: If we go to page 6., paragraph 5: "Mr Harvey stated that the draft report had been shared in a controlled way with Dr Brearey and Dr Jayaram for comments." What did you understand "a controlled way" to mean
if you heard that at the time?
NICHOL: That there hadn't yet been the opportunity for the Consultants to fully -- to fully digest merely, as it were, a glimpse of the overall advice.
LANGDALE: Do you think as a board it might have been helpful for you to have the Consultants' views of the adequacy of the report and the supposed multi-factorial reasons that were ascribed to it for causation of any of the deaths?
NICHOL: Yes, I do. Absolutely.
LANGDALE: And --
NICHOL: If I could add that I regard as personally a big -- big failure on my part that the Consultants were present at the first extraordinary board meeting and they were not present at this one and they should have been.
LANGDALE: Who gets to decide whether the Consultants can be there or not?
NICHOL: Well, ultimately it's my decision.
LANGDALE: Mm-hm.
NICHOL: Usually it would be suggested and I would say absolutely, yes, let's please invite them.
LANGDALE: Because the tone of this meeting is very different from the last, isn't it, in terms of discussing the risks to babies or patients?
NICHOL: Yes, yes.
LANGDALE: We then have Mrs Hopwood asking: "Are there assurances that the report will not be leaked to the press by the Consultants? Mr Chambers replied this would form part of the conversation where we would be very clear about the expectations." Had the Consultants leaking things to the press been suggested before in any other context?
NICHOL: I can't recall any such thing.
LANGDALE: Was there any discussion at this meeting about what the parents would be told about the report insofar as it impacted on any of their children?
NICHOL: I can't recall the detail of that.
LANGDALE: At the bottom of page 6: "Sir Duncan stated that the board accepted the report and support the implementations subject to the strategic review supported the individual going back on the unit and the admission criteria should not be changed." Did you appreciate in anything that was said at that meeting that the RCPCH Report did not exclude Letby as a possibility for the cause of harm and death to babies? Did not exclude her as a possibility?
NICHOL: Yes, that didn't -- didn't come across to me at that meeting.
LANGDALE: But you had read the report?
NICHOL: I had.
LANGDALE: Did it not come across in the report or did you not analyse the report in that way?
NICHOL: I didn't -- I didn't pick it up from the report that I read.
LANGDALE: Mr MacCormack had said the RCPCH were the wrong people to do the review because they weren't going to do a forensic analysis and look where there's suspicion to see if a crime has been caused. That is not what they would do. Did you appreciate that at all at the time, that this report didn't really deal with the issue the board was grappling with?
NICHOL: No, no, I noted Dr McCormack's comment. My understanding was that the Terms of Reference were being drafted but a reference, a reference to the suspicions the paediatricians had about Letby would -- would also be intimated to the College. I --
LANGDALE: In your statement, Sir Duncan, you say at paragraph 158: "In August 2016, BBC News reported that I provided the following statement to them." And the statement was this:
"I believe that the board was misled in December 2016 when it received a report on the outcome of the external, independent case reviews. We were told explicitly that there was no criminal activity pointing to any one individual, when in truth the investigating neonatologist had stated that she had not had the time to complete the necessary in-depth case reviews." Then you tell us at paragraph 159: "I did not have the date to hand when talking to the BBC. The report I referred to the board receiving was Ian Harvey's report to the extraordinary meeting on 10 January." The report at INQ000239 references: "Inconclusive results from internal reviews." Is that what you say, Sir Duncan; that you were misled at that meeting?
NICHOL: I was misled. I didn't say what I was misled about. I don't -- not to the press.
LANGDALE: Yes, okay. So my first comment then: is that what you said and what do you think?
NICHOL: What I think, may I start with?
LANGDALE: Of course.
NICHOL: What I thought at the time was that I was misled because I was not informed that Dr Hawdon had not had the capacity to do the job that she had been asked
to do in the depth that was required. I thought that was essential information that was not made available to either myself or the board and that was the only reference that I -- I intended to make to being misled.
LANGDALE: Because you didn't know that she couldn't take on what the RCPCH had suggested?
NICHOL: She couldn't take on what I think Mr Harvey had asked her to do.
LANGDALE: Right. But you saw, did you, anything that Dr Hawdon had written. Did you see for yourself?
NICHOL: I saw -- I saw the some summaries of, of cases. But I -- I didn't -- I didn't see anything else.
LANGDALE: So do you think you were misled or not? When we look at the 10 January meeting particularly, I am not talking about the details of the review, were you or do you think you got their views, Mr Harvey and Mr Chambers' views?
NICHOL: I think a critical piece of information of the kind that I have just mentioned, namely that the reviewer, Dr Hawdon, didn't have the capacity to do the review in the required depth, for us not to be -- for me not to be told about that was misleading.
LANGDALE: You could have asked for the full report to see that and read that for yourself, couldn't you?
NICHOL: I could have asked for the full report. What
I am referring to, I think, is the covering letter from Dr Hawdon which -- which tells Mr Harvey that she couldn't do the job he had asked.
LANGDALE: What would your response be to that? If you couldn't do the job he asked what would you think should be done next or --
NICHOL: Well, I think there would have been a board discussion that would have been based on: well, we haven't got what we asked for. What should happen next? It's -- it's impossible to say what the outcome of that collective board discussion would have been. It could have been to say: no, no, no let's go to the police or let's -- let's follow up on the forensic pathology reviews that she did recommend and see where they take us. There were a number of possibilities that could have emerged had we had the chance to debate them.
LANGDALE: 13 April 2017, the next boardroom meeting, INQ0003236, page 1. This is one where Mr Medland QC, as he then was, attends.
NICHOL: Yes.
LANGDALE: Can you remember much about this meeting?
NICHOL: Yes, I can remember -- remember quite a bit about that meeting.
LANGDALE: Do you want to tell us about that then?
NICHOL: Yes. I think we -- we had sought Mr Medland's independent view at a meeting with the paediatricians, which he held, as to whether there was sufficient evidence of criminality. This is something suggested to me by Mr Cross and I thought it was a good idea to put that point and to explore the strength of the argument, the evidence that might be put -- put to the press. Mr Medland reported back to us as I recall that he didn't find any evidence of -- of criminality. But he used an expression that stayed in my memory arguably since then, along the lines that: if events are still unexplained and if well-minded people still have concerns, then the police should be called and I wish we had had that advice in July 16.
LANGDALE: And indeed at that time, in June/July 2016 we have seen at least one email from Mr Harvey thinking about going to the police then?
NICHOL: (Nods)
LANGDALE: It appears I think Ms Kelly raises that. There's an understanding at that point that that's a real moment, isn't it, when the police could have been contacted?
NICHOL: There were a number of references not -- including members, from members of the Non-Executive Directors who were saying should we? Is it time? When?
And we were in the position of waiting for an extra piece of information, one -- one piece would have been the deep dive forensic reviews from Alder Hey Hospital, which came quite late in the day.
LANGDALE: So instead the decision then was the RCPCH review, Dr Hawdon review, then following up with Dr McPartland, the Silver Command investigations. It continued, didn't it, a series of internal and some external investigations for considerable time?
NICHOL: Yes.
LANGDALE: We see at this meeting at page 2, paragraph 3, that's where Mr Medland emphasises no evidence of a crime but the Consultant view is to go to the police and he suggests going via the police member of CDOP as well which we know eventually is what occurred. On the last page, page 6: "Sir Duncan added that that the biggest risk is losing control of the situation and again noted the need to communicate with the parents." The communication with the parents, how focused on that were you? Did you ever see any of the draft letters from Mr Harvey to parents or ask to see which parents had been contacted or any of that kind of detail or not?
NICHOL: No, I didn't see the letters or the -- which
parents were approached.
LANGDALE: Who did you think was in charge of that?
NICHOL: I think Mr Harvey himself.
LANGDALE: Did you get any feedback on that process from him or not?
NICHOL: No, I didn't.
LANGDALE: That can come down from the screen now. If we can go, please, to INQ0107734, page 2. You were cc'd into an email with this message that Letby had sent to her colleagues. You see the 31 January, we see what it says there: "I was redeployed from the unit in July 2016 following serious and distressing allegations. From then until now I have been unable to visit or contact the unit whilst these matters were investigated. After a thorough investigation it was established that all the allegations are unfounded and untrue and I have therefore been fully exonerated." So it continues. When you saw that, and if it helps refresh your memory, if we go to the page before we will see it is Ms Hodkinson that has forwarded it to you, or sent it to you, when you read that, her referring to being fully exonerated, what did you make of that when you read?
NICHOL: Well, what I thought she would have referred
to was the vindication of the grievance panel, of her grievance.
LANGDALE: But what did you think her grievance was about?
NICHOL: I -- I -- I thought from -- I am trying to recall this -- I thought her grievance related to -- to the way that she had been dealt with, handled, maligned if you like by -- by the Consultants.
LANGDALE: But that necessarily wouldn't fully exonerate her, would it?
NICHOL: No.
LANGDALE: Exonerated sounds different, doesn't it? If we go back to the page before she's speaking about in the first paragraph: "Following serious and distressing allegations of a personal and professional nature made by some members of the medical team, I have been fully exonerated." In other words, their allegations were not justified; that is what that suggests, doesn't it, even without knowing the allegations?
NICHOL: I think these were -- these were the allegations that were -- were circulating round, round the hospital; that were common knowledge in the hospital at that time, at which she -- she argues that what they were, what -- the import of them was not true and she was exonerated.
LANGDALE: So when you say what allegations were going round the hospital at that time --
NICHOL: The allegations were of the "angel of death", the allegations -- is allegations the right word? The Coroner conversations, messages, words onwards were about somebody may be harming our babies.
LANGDALE: So it was pretty widely known within the hospital, as you would expect at this point really, that someone harming babies was under consideration or that had been alleged?
NICHOL: Had been alleged.
LANGDALE: How clear are you that it was widely known across the hospital; in other words not just within a unit here or there?
NICHOL: I am not clear how wide -- wide that was in circulation on the grapevine.
LANGDALE: You were walking around, it wouldn't be surprising at this point --
NICHOL: Yes, no -- nobody mentioned it to me --
LANGDALE: Pardon?
NICHOL: -- as I walked. I'm so sorry --
LANGDALE: No, go on.
NICHOL: Nobody mentioned it to me on my -- on my walkabouts.
LANGDALE: Certainly emails are going to groups of staff, aren't they? A number of staff on a ward will have friends presumably in the hospital. So that was known that there were concerns someone was harming a baby or harming babies? But what about the allegations that there was name-calling or behaviour of Consultants; was that talked about as well or known about?
NICHOL: Probably in a more -- in a more restricted circle and, but, brought to the attention of senior Executives, Divisional Nursing Director, Karen Rees and others were party to that information.
LANGDALE: You receive -- if we can go, please, to INQ0099388, page 2, 0099388, page 2. Mr Chambers and yourself receive this letter from the parents of Ms Letby saying: "It's now one year since our nightmare began. There is a saying 'innocent until proven guilty' but it does not seem to apply to Lucy. She is still the only one of all the staff on the neonatal unit to be singled out for punishment. "Whilst we are appreciate things cannot be finalised until the police investigation has ended we have to have a way of moving forward in terms of her career for however long the investigation takes.
"We therefore wish to request an urgent meeting with you both to discuss what restrictions are on Lucy and what expectations she can have regarding work training for the time until the police investigation has been completed. "... would appreciate the meeting to be as soon as possible as the anguish the situation is causing has become intolerable." You didn't meet with the parents, did you?
NICHOL: No, no.
LANGDALE: Did you respond in any way to that?
NICHOL: No. I talked to Mr Chambers and agreed that he would meet the parents.
LANGDALE: Were you asked on any other occasion to meet the parents?
NICHOL: No.
LANGDALE: Were you aware how many of your senior staff were meeting the parents?
NICHOL: My understanding that it was quite limited. Certainly Mr Harvey, Mr Chambers. I can't be clear about the Director of Nursing.
LANGDALE: What level of support did you think was being provided to Letby herself from either Occupational Health or other nurses? What did you think she was getting in terms of support during this?
NICHOL: I had no insight into that.
LANGDALE: You, along with others, received from Ms Cooper INQ0057492, page 1. Ms Cooper is sending you a statement that Letby wished to be read out to the Consultants when the Trust board meets with them and also a statement from her parents was attached as well which they felt should be communicated. Did you read that statement at the time?
NICHOL: I heard it read -- read out. But I can't remember the actual occasion when it was read out.
LANGDALE: So if we go to -- just so people can see it INQ0057493, page 1.
NICHOL: Oh, yes.
LANGDALE: So if we look at it there. That was the statement and I think that was read out at the board meeting at 10 January, was it?
NICHOL: I don't -- I don't recall it being read out at 10 January. It might be my memory.
LANGDALE: Where do you think --
NICHOL: Well, again I have at the back of my mind that it -- it might have been read out at the meeting I couldn't attend which Rachel Hopwood attended in late January with the paediatricians. The paediatricians weren't at the January board meeting.
LANGDALE: Yes, so it may have been 26 January?
NICHOL: 26 January.
LANGDALE: Is that the one you weren't at? So you didn't sit through that being read but did you know that that was going to be read to the board?
NICHOL: No, I don't, read to the board? No, I didn't -- I didn't think there was going to be an opportunity when the paediatricians and the board were -- would be there to hear it.
LANGDALE: Yes. We will have to see whether it is the 10th or the 26th but either way you know it was read and you can't -- there may be some dispute about when it was read but you know it was read and you can't remember hearing it now?
NICHOL: I wasn't there when it was read.
LANGDALE: Right. Do you think reading that out in that kind of meeting with the paediatricians there would have been an appropriate thing to do?
NICHOL: No.
LANGDALE: Why not?
NICHOL: I just don't, I just think you -- you have to look to, as it were, not aggravate matters and I thought it was -- I thought it was provocative --
LANGDALE: Who was the person driving that then, that it should be read, do you remember?
NICHOL: No. I remember who read it but I don't
remember who drove it.
LANGDALE: Who, who --
NICHOL: I thought Karen Rees read it.
LANGDALE: That can go down then, please. Were you aware whether there had been pressure put on the Consultants Dr Brearey and Dr Jayaram to attend mediation?
NICHOL: I'm not sure whether "pressure" is the word. But certainly a suggestion, an invitation to join in mediation had been -- had been made to them.
LANGDALE: By 29 March 2018 you received this letter from the Consultants, didn't you, INQ0088531, page 1. It's an email first from Ravi Jayaram highlighting concerns about the relationship with the Executive Board. Whose writing -- is that your writing?
NICHOL: Yes, it is.
LANGDALE: Excellent. Can you tell us what it says then, please?
NICHOL: No -- yes, I am sure I can. "Acknowledge serious breakdown in working relations with the Exec board. Shared your concern about the potential damaging impact on patient care clinical practice and the development of services for children. Commit to try to resolve the problem and restore a professional working relationship."
LANGDALE: If we go over the page, it is the same
INQ number, you have obviously met with Dr Jayaram and: "... the Consultants say they remain extremely concerned. Our relationship with the Executive Board has deteriorated and ... no meaningful efforts are being made to repair it." You, if we go to INQ0102361, page 76: "Thank you for the letter from you and your colleagues which I received today. As I said when we met on 26 February high on my agenda was concern about the damaging breakdown in relationships between Consultant paediatricians and the Executive Team and my desire to broker a positive way forward. So the board understands that a problem exists and will press for it to be resolved in the interests of patients and the future development of our services to children." How did you think you were going to be able to resolve that? What was your thinking?
NICHOL: It's -- it's trying to bring the parties together. There's no -- there's no magic bullet or quick fix but the relationships were fractured. I wanted, of course, to hear the basis of the Consultants' concerns and, and why it had got to this, to this point and they expressed that very clearly to me. I communicated that with, with Mr Chambers and urged a meeting, meeting of -- in the same room, please,
let's see what, see what you can do to repair relationships. This is where they're coming from. What do you think? That kind of conversation.
LANGDALE: We see, if we go to INQ0006682, page 1, this is a letter Dr Gibbs sends, or an email, to his fellow Consultants. I'm sure you have seen this, Sir Duncan, but take your time and read through that now.
NICHOL: Yes. (Pause). Yes, thank you.
LANGDALE: We see in paragraph 3 that you say to the Consultants that you understood what we were saying, but it was not his role to take sides.
NICHOL: Yes.
LANGDALE: Was that an option in terms of not at least forming a view on the merits of what both sides were saying at this point?
NICHOL: I mean, arguably I was, I was trying to position myself in a mediation/arbitration type of role. I did need to know why it had got to this stage from the perspective of each of the parties. But that was, that was my -- that was why I was referring to not taking a position in favour of one or the other whilst that was going on.
LANGDALE: Well, it had got to the position, hadn't it, where they had raised concerns and suspicions about a nurse who was being investigated by the police and, at the same time, there had been a grievance process where they had been criticised for poor behaviour. And that must have felt very unjustified, mustn't it, at this time; did you get a sense of that --
NICHOL: That was --
LANGDALE: -- a sense of --
NICHOL: Certainly I was, you know, aware of the -- of that as background to the build up which crystallised in meetings with them in terms of, "we don't feel listened to, we feel victimised, we feel intimidated, we feel bullied."
LANGDALE: You then, if we go to INQ0003092, page 1, write to the Execs.
NICHOL: Yes.
LANGDALE: And you say: "The overall concern was their perceived breakdown... " Do you think "perceived" was the right word there?
NICHOL: No. No, it was a real breakdown. This was in mutual trust and respect.
LANGDALE: "They cited examples of late and partial communication and views attributed to them which they
did not hold. In general for them there was lack of transparency and a feeling of exclusion. They felt intimidated, victimised and under pressure to toe the line and that their concerns had been sidelined. They had no clarity about what had been said to parents. They felt their concerns around risk management had not been addressed satisfactorily." That was a two-hour meeting, so it doesn't look like they held back; you knew what they were saying?
NICHOL: Yes.
LANGDALE: You also send INQ0004474, page 1, a further email. You say: "I have reported back fully, albeit succinctly, on Monday's meeting and expanded verbally to you, Tony and to Stephen." When you expanded verbally, presumably you gave some of your views in that context. Can you remember what else you said?
NICHOL: No, I can't.
LANGDALE: We then see, please, INQ0102361, page 78. The paediatricians had asked 26 questions, hadn't they, they wanted 26 questions answering?
NICHOL: Yes.
LANGDALE: We see here a draft from Mr Chambers, 30 April, his first draft reply to the questions.
Sorry, this one is the paediatricians' questions. Yes, these were their questions. These were sent. If we can scroll through them so people can read them. And then we see -- well, we'll give a moment to see that. (Pause) And then you send us, there's a draft response from Mr Chambers, isn't it, INQ0102361, page 87. So that's Mr Chambers' response.
NICHOL: Yes.
LANGDALE: If we see an email you send at INQ0102361, page 83.
NICHOL: Yes.
LANGDALE: Take your time to read that.
NICHOL: No, I know that one, thank you.
LANGDALE: You had seen a draft, had you, before he sent the response?
NICHOL: Yes, I would have seen a draft.
LANGDALE: And provided these comments before the final one was sent --
NICHOL: Yes.
LANGDALE: -- or not? Did you have a conversation with Mr Chambers as well about this?
NICHOL: Oh, yes. Yes. This was my advice to him and
I gave it to him in person as well.
LANGDALE: And tell us what you said in person.
NICHOL: He, he was -- I think he took the advice. Certainly was going to reflect on it. And I think in large measure, when he responded, he had taken, taken the points I was making.
LANGDALE: Did you see the one that he sent back, the one we put on screen a moment ago?
NICHOL: I don't, sorry. I don't recall seeing that, no.
LANGDALE: Did he send you the draft first for comment or what? How was it you were commenting on the draft response in the first place? Who had asked to see it?
NICHOL: I can't remember. He shared it with me, but I -- I can't remember how that came about.
LANGDALE: On the same date as this, you popped your head around the door in your corridor to speak to Dr Ravi Jayaram, I think, because we have an email where you say: "Dear Ravi, we shared an emotional conversation and that's okay." Can you remember having an emotional conversation with Dr Jayaram on the 25th?
NICHOL: Oh, yes. Yes. I remember putting our arms round each other.
LANGDALE: Sorry?
NICHOL: I remember us putting our arms round each other.
LANGDALE: And you said in this email: "I want you and Consultant colleagues to know how deeply sorry I am for the personal distress that you have and are all suffering and for my part in not intervening sooner." Can you remember saying that in an email?
NICHOL: Yes. Yes.
LANGDALE: Tell us about that; the 25th May, what he said you said and ...
NICHOL: I think this was the occasion when he was giving me the examples of how they had been, in his words, "treated" during the grievance process, my words "as if they were in the dark."
LANGDALE: When you said in the email: "... for my part in not intervening sooner." What did you mean by that?
NICHOL: I don't know. I can't remember that now. No.
LANGDALE: Do you think at the time when they were in the meetings, Dr Jayaram and Dr Brearey, you did take their concerns seriously enough? You were hearing what the Executives said and particularly Mr Harvey about the multi-factoral issues. But the concerns they were
raising, do you think you took those seriously enough?
NICHOL: Yes, I -- I -- I believe I did. These are serious concerns expressed genuinely and they, they fed into -- fed into the process that followed. I took them seriously.
LANGDALE: You also sent an email at INQ0107964, page 0213. It's going to come on the screen, don't worry. So this is 8 Feb 2017 at the time of the publication of the RCPCH Review: "Dear Ravi, "However events unfold following today's release, I will be standing with you. I do understand how very difficult this is for you and your colleagues and I want you to know that I am personally here for you as I will be for any member of the neonatal unit." Do you remember sending that?
NICHOL: Sorry? Is there a question?
LADY JUSTICE THIRLWALL: Do you remember sending that?
NICHOL: No. No, I don't.
MS LANGDALE: But it's clear your style was to be supportive where you could be?
NICHOL: Yes.
LANGDALE: At least expressing that support in that way?
NICHOL: This was -- I don't need to say this, but there's enormous stress and pressure in the, in the hospital around these events and, I mean, I wanted to let people know that they weren't, they weren't on their own.
LANGDALE: It came to it, didn't it, that there was an extraordinary Medical Staff Committee meeting on 19 September, where all of the staff were discussing Mr Chambers, INQ0098147, page 1, and you were present as well?
NICHOL: Yes.
LANGDALE: By then -- and I should say I don't need to put them on the screen -- Mr Chambers, 30 May 2018, had sent his response to the questions raised by the consultant paediatricians on 30 April. So that's INQ0102361, page 87 onwards. So he has responded to that and the paediatricians have responded with answers to some of his answers, haven't they? The document was doing some toing and froing, can you remember that; that the 26 questions he answered and the Consultants had responses --
NICHOL: Yes.
LANGDALE: -- to those answers?
NICHOL: And ...
LANGDALE: And then we arrive at the meeting.
NICHOL: Yes.
LADY JUSTICE THIRLWALL: Sorry. Did you want to say something else?
NICHOL: How connected the questions and answers were to the meeting, I'm -- I'm not sure. The paediatricians had reached a point of no, no possibility of reconciliation and wanted to take their, their points to the Medical Staff Committee meeting and I attended, yes.
MS LANGDALE: That's what we see here at page 1 and page 2. Dr Jameson introduces the meeting and the purpose of the meeting: "... emphasised sensitivity and confidentiality and that bereaved parents were at the heart of the matter." Page 3. A list of concerns. Dr Saladi sets out his concerns at the bottom of the page and going over to page 4. Dr ZA sets out her concerns. If we move over to the next page, Dr Jayaram. Dr Brearey next page. Dr Holt, her views. It's a discussion from the floor that begins and goes over on to page 8 and we see Dr Tighe in the discussion: "... speculated that motives for board decisions might include concern about the hospital's reputation and for the other employee's rights. He said that there were two issues; patient safety and the possible delay in taking measures and the way that the paediatricians had been victimised and bullied." Pausing there, Sir Duncan: " ... speculated that motives for board decisions might include concern about the hospital's reputation." You were concerned that communication was affected. What about reputation, the standing of the hospital, was that a factor?
NICHOL: I don't believe it was a factor.
LANGDALE: What about for the other employee's rights, the nurse's rights. You have said you had extraordinary board meetings and because of an employee's position, you didn't expect it to be discussed in some places. Do you think the employee's rights influenced your manner of the discussions or decision-making as a board?
NICHOL: I'm not clear what Dr Tighe had in mind there. The grievance process was an entitlement. I -- I had no part to play in that. So I -- I -- I can't, I can't explain that point.
LANGDALE: Did you have much experience of grievances being raised in the Trust?
NICHOL: Over, over years --
LANGDALE: Yes.
NICHOL: -- yes.
LANGDALE: Were they ever raised in response to concerns being raised about an individual, was that a common thing or not?
NICHOL: I'm not sure whether it was a common thing. But people, people would raise concerns about how they would -- were they were being managed, treated, mistreated, bullied. So those were -- those were grounds for, for some of the grievance hearings that I was involved in in earlier years.
LANGDALE: Was it sometimes a response when a person criticised their behaviour though, do you see? I fully understand grievance procedures, people can raise them. But if I criticise someone's behaviour and then they raise a grievance, did you get that situation?
NICHOL: Yes. I mean, lots of situations where there were two points of view. Yes, yes, I was. From the manager, let's say, "Yes, I was unhappy with your performance and we've got to do something about this, so ..." And then on the other side, "I didn't like the way that you spoke to me. I felt I was being bullied." So that, that -- sorry, I keep thinking I'm
knocking the glass over, my Lady.
LADY JUSTICE THIRLWALL: That's all right. You're just touching the microphone.
NICHOL: So that's the two sides to the grievances involving people's views on being managed or bullied.
MS LANGDALE: At the end of the meeting, we see the conclusion: "Dr Jameson said that the main aim of the meeting was to facilitate the paediatricians' expression of their experiences and that he would call another extraordinary meeting soon to form definitive conclusions and actions." So at 20 September, they hadn't formed conclusions about what next but everybody had aired their views in that meeting?
NICHOL: Yes, certainly the -- the meeting was, was -- was for them to tell their story, to hear views and I was informed at the time also to ask whether other Consultants had similar experiences.
MS LANGDALE: Thank you. I have a very few questions left, Sir Duncan, but perhaps we should take the lunch break and I'll ask them afterwards.
LADY JUSTICE THIRLWALL: Very well. So we will break now and we'll start again at ten to 2.
MS LANGDALE: Is that a problem, Sir Duncan?
NICHOL: No. Look, I defer. My daughter, my daughter is coming to mop my brow and she's coming all the way from Yorkshire and we're having lunch, and I can come any time. I can come back at any time, but I can come back at ten to 2 as well.
MS LANGDALE: We would still comfortably finish if we started at 2.15.
LADY JUSTICE THIRLWALL: Very well. Will 2.15 be better for you?
NICHOL: Yes.
LADY JUSTICE THIRLWALL: Yes.
NICHOL: Thank you, my Lady.
LADY JUSTICE THIRLWALL: Very well. We will say 2.15. No, no, don't worry. That will suit everybody else as well. We have had some very short lunch breaks these last couple of weeks. 2.15 pm.
(12.57 pm)
(The luncheon adjournment)
(2.14 pm)
MS LANGDALE: Sir Duncan, we had just looked at the meeting that the staff committee held surrounding Mr Chambers and the Inquiry has heard evidence from Lyn Simpson, who told us that she took a call from you to discuss Mr Chambers's position. So can you help us. When -- first of all can you remember speaking with Lyn Simpson? I think you spoke with Mr Dalton first and then you spoke with Lyn Simpson?
NICHOL: Yes, I remember both conversations.
LANGDALE: Tell us about the one first of all with Ian Dalton then?
NICHOL: I think that we had reached the point where Mr Chambers was looking for a placement outside the Countess of Chester, and Mr Chambers had talked to Ian Dalton, Ian Dalton was open to helping him and he delegated that responsibility to Lyn Simpson to put the -- put things in motion.
LANGDALE: So who did you speak to, did you speak to Mr Dalton or just Ms Simpson?
NICHOL: I can't remember a conversation with Ian Dalton but certainly I had conversations with Lyn Simpson.
LANGDALE: Lyn Simpson told us that her understanding was the main issue was a breakdown in relationship of the board; that that was the issue?
NICHOL: I -- I don't --
LANGDALE: Remember?
NICHOL: I don't accept that. The -- the issue was the breakdown of relationships between Mr Chambers and the
paediatricians. That was a relationship which was impaired to such an extent that the board needed to deal with it but it wasn't an issue in the board.
LANGDALE: What did you tell her about the issue, if anything, about the breakdown of relationship with the paediatricians?
NICHOL: I can't remember exactly what I told her. She was aware that that was the reason why we were looking for, for placements. What was not unknown in either NHSI North or NHSE North was that what had provoked the breakdown in relationships was total loss of mutual trust, respect and personal animosity. Now, I did not go into a great detail of detail, I am sure, about each of those ingredients, components of the breakdown in relationships but it was not something I was withholding from anyone.
LANGDALE: So you didn't give her the detail of why those relationships had broken down but you said they had broken down, there was a breakdown of relationships and trust?
NICHOL: Yes, I can't remember whether I would have elaborated or not.
LANGDALE: But you didn't send her, for example, the 26 questions or the paediatricians' emails?
NICHOL: No.
LANGDALE: Nothing like that?
NICHOL: No.
LANGDALE: She didn't get the detail we have seen today --
NICHOL: No.
LANGDALE: -- that we have? If we go to INQ0101357, page 1, this is a conversation on 19 September and we see: "LS and DN agreed the suggested way forward was; "a. to prevent the vote of no confidence and ON to take this forward. "b. to ensure TC does not go back on site and perhaps works from home for the next week, whilst LS considers alternative options "c. to agree that if an alternative option for 6~months could be found that TC would not go back to Countess of Chester." So reference there to preventing the vote of no confidence. Why did you agree to prevent that or what do you understand --
NICHOL: I didn't, I did not agree to prevent a vote of no confidence, I didn't intervene at any -- at any point in in that matter. There was only one intervention and that was from Dr Gilby at Mr Chambers' request which only succeeded when the MSC knew he had resigned.
LANGDALE: But there is reference there that he shouldn't go back on site, so he doesn't go back on site, so the vote of no confidence didn't happen but you say you didn't actively prevent the staff committee re-meeting or anything?
NICHOL: I spoke to -- I spoke to no one to influence the vote of no confidence, which I thought was going to take place.
LANGDALE: The agreement that Ms Simpson brokered was for Mr Chambers to work for six months for a different organisation funded by the Countess; is that right? Can you remember what the agreement was that was discussed between you and Ms Simpson?
NICHOL: The agreement that was discussed was that Mr Chambers would be, would be allowed as it were three months to find the placement. The placement would then be covered financially by the Countess of Chester which equated to his notice period. That was approved by the RemCo of the Countess and also by the national body, which has to approve exceptional provider remuneration.
LANGDALE: So is the notice period normally six months?
NICHOL: Yes.
LANGDALE: So with the three months to find a placement is in fact slightly longer then, it is nine months funded by the Countess?
NICHOL: Yes, that is why it had to be approved at a higher level.
LANGDALE: Does that mean at one point there would be an overlap where you are paying for two Chief Execs if you had another one?
NICHOL: If we had another, that is correct, we would have been -- Mr Chambers was being paid for his notice period but not serving it -- with, with the extra three months while he sought the placement.
LANGDALE: Ms Simpson we know described Mr Chambers going to work elsewhere as a rehabilitation period, I think that is at page 24, reference to that, in the same document.
NICHOL: Yes, not a word I recognise or would have used myself.
LANGDALE: Okay. So that's not something that you recognise. It's at the top there: "Terms of his settlement sit with you and your Remuneration Committee, I would advise that rehabilitation periods linked to similar settlements in the NHS seldom last more than one year." So you wouldn't recognise the term but were you familiar with what was happening in effect which was him moving on in these circumstances to another role?
NICHOL: I recognise that technically our lawyer's advice, this had to be a secondment which terminated in -- in June of '19 and that at that point the Trust had no further financial obligation towards Mr Chambers. He certainly wouldn't be returning to the Trust.
LANGDALE: You said in your own statement to us at paragraph 139: "The performance of Tony Chambers at annual review 2013/2014 to 2016/2017 had exceeded expectations but had dipped in 2017/2018." In terms of how those appraisals were done are those the 360-degree appraisals where it's what do you think of yourself, what do others around you think of you colleagues and the like?
NICHOL: The appraisals -- annual appraisals are between in this case myself and the Chief Executive. They, they address preestablished objectives under four of five headings and they are assessed by the Chair in this case as either exceeding expectations or partially or not meeting expectations. Tony Chambers had five years at the Trust where he exceeded expectations. In 17/18, it was judged by me that he had not met expectations. That I communicated to the Non-Executive Directors. It was also agreed at that meeting that I had, which was a one-on-one performance review, that
-- that he would -- he would be looking for a new -- a new job, the best years possibly behind him at that time.
LANGDALE: We can no doubt find those appraisals or the documentation. But were you involved directly in his appraisals or not?
NICHOL: In the appraisal?
LANGDALE: In the appraisals?
NICHOL: Yes, it was my just the two of us.
LANGDALE: Just the two?
NICHOL: It was my appraisal of Mr Chambers.
LANGDALE: Thank you. So we can find those, I'm sure.
NICHOL: I shared that with the Non-Execs but it was my appraisal.
LANGDALE: Right. There was a narrative announcement, if we go to INQ0015683, page 31. Was that something agreed between you and Mr Chambers --
NICHOL: Yes.
LANGDALE: -- in terms of his moving forwards? That penultimate paragraph: "These investigations into neonatal deaths at the Trust have escalated over the past two years and inevitably put relations between senior management and paediatricians under exceptional strain." What does that communicate, if anything, about
Mr Chambers' role or part in that?
NICHOL: That doesn't communicate anything about either party's part in -- in the breakdown of relationships.
LANGDALE: Was that the purpose of this not to communicate what had happened how or why but simply to say there is a breakdown in relationships?
NICHOL: It is not the purpose to withhold that but in the light of the announcement it was felt to be the -- the right -- the right way to express the situation which we had arrived at.
LANGDALE: And if we go, please, to INQ0102361, 0101, we see on the front page: "Please confirm Tony's reason for leaving, if known, secondment and resignation."
NICHOL: Yes.
LANGDALE: Is -- was this a secondment?
NICHOL: A secondment was the -- the -- the legal way in which I was advised the placement had to take place after Mr Chambers' resignation.
LANGDALE: The next page, please, overleaf. You sign that off. There is no other reference -- in fact, we should go to the page before, page, there was no warnings, could have been imposed, not under investigation for any matter?
NICHOL: No.
LANGDALE: Nothing.
NICHOL: There were -- there were telephone calls between points along the way, with prospective chairs of Trusts that might be appointing Mr Chambers. But nothing in this particular reference.
LANGDALE: So would you have expected a prospective chair appointing him to speak to you or is that not how the system worked --
NICHOL: Some did. I didn't, but if I had been appointing someone as a chair, I would have spoken to the predecessor chair, yes.
LANGDALE: And if someone spoke with you and had asked more information about it, would you give that information?
NICHOL: Yes.
LANGDALE: Did anyone ask you for more information?
NICHOL: Yes. Yes, there was a chair who -- who asked me whether there was anything that she should know and I -- I responded to that by saying that Mr Chambers had been facing a vote of no confidence.
LANGDALE: So you wouldn't withhold that if someone asked that?
NICHOL: Sorry?
LANGDALE: You wouldn't withhold that; if someone asked about that, you did tell them?
NICHOL: I did and I also told Mr Chambers that that's what I had done.
LANGDALE: Were you -- following the Kark review of a Fit and Proper Person Test, do you have a view about that, somebody in Mr Chambers's position being able to move on at this point or not?
NICHOL: We didn't review Kark in the board or in the Trust, no.
MS LANGDALE: Those are my questions, thank you, Sir Duncan.
LADY JUSTICE THIRLWALL: Ms Sutherland.
Questions by MS SUTHERLAND
MS SUTHERLAND: Thank you, my Lady. Sir Duncan, can you hear me?
NICHOL: I can.
SUTHERLAND: Thank you. My name is Sarah Sutherland, I represent some of the Families. Please let me know if my voice dips and you can't hear me?
NICHOL: Thank you.
SUTHERLAND: I am going to cover a couple of topics my learned friend has touched upon. The first one is in relation to the Clothier Inquiry?
NICHOL: The?
SUTHERLAND: Clothier Inquiry?
NICHOL: Yes, yes.
SUTHERLAND: You had it, you read it --
NICHOL: Yes.
SUTHERLAND: -- and you disseminated it in the 90s?
NICHOL: Yes.
SUTHERLAND: My learned friend Ms Langdale KC took you to the most important conclusion and that was to serve to heighten awareness in all those caring for children --
NICHOL: Yes.
SUTHERLAND: -- of the possibility of malevolent intervention as the cause of unexplained events; do you recall that?
NICHOL: I do.
SUTHERLAND: Your experience over the years, you would have been aware of Shipman?
NICHOL: Yes.
SUTHERLAND: And from those cases of healthcare homicide, your experience would teach you that often the signs of malevolent influence are subtle, would you agree with that?
NICHOL: Yes.
SUTHERLAND: They would require prompt, urgent intervention?
NICHOL: Yes.
SUTHERLAND: You have told us today that children would require they need somebody to speak for them; is that
right?
NICHOL: Yes.
SUTHERLAND: So we know that on 30 June 2016, you began two week meetings, preparatory meetings, leading up to the extraordinary board meeting?
NICHOL: Yes.
SUTHERLAND: You discussed the increased neonatal deaths; that's right, isn't it?
NICHOL: To discuss?
SUTHERLAND: You discussed the increase in neonatal deaths?
NICHOL: Yes.
SUTHERLAND: Now, this process, this two-week process, was a highly unusual process; would you agree with that?
NICHOL: No, I think it was a matter of preparing for the extraordinary board meeting and bore heavily on the availability of people to -- to join those meetings, not least the paediatricians for the second one.
SUTHERLAND: Okay, well, we'll have another look at a couple of the documents, if we may, the first is INQ0003361. I am going to ask you to look at page 2, please. Now, we can see just over halfway down that page the initials "DN"?
NICHOL: Yes.
SUTHERLAND: Do you see that?
NICHOL: Yes.
SUTHERLAND: It's got a loop around it. This says: "Commission in-depth review. It will take as long as it takes." Further on down there it says: "Why haven't we closed the unit?" And just slightly before that: "If so much concern, why haven't we closed the unit?"
NICHOL: Yes.
SUTHERLAND: Do you see that?
NICHOL: I can.
SUTHERLAND: Then we can see a couple of lines down: "Next meeting 1 pm today." And that appears to read: "Nurses and HR." Do you see that?
NICHOL: No, can I just --
SUTHERLAND: There we go. Thank you. Then just below that: next meeting with the Consultants at 3.00 pm today?
NICHOL: Yes.
SUTHERLAND: So this document arises from the first meeting, it would seem, of that day, which is with Alison Kelly, Ian Harvey, Tony Chambers, Stephen Cross,
Sue Hodkinson and yourself?
NICHOL: Yes.
SUTHERLAND: Do you recall that meeting?
NICHOL: I -- I recall the meeting. I don't recall the detail of discussions at the meeting. This note refreshes my -- my memory to some extent.
SUTHERLAND: What I am interested in is why was that the order of meetings? So the first meeting is with you and the Executive Team, the second meeting seems to be with the nursing team and the HR team?
LADY JUSTICE THIRLWALL: Sorry, Ms Sutherland, is that "comms" in front of that? MS SUTHERLAND: Yes, forgive me, my Lady: "Comms, nurses and HR."
NICHOL: Yes.
SUTHERLAND: Yes, at 1 pm. Then finally, the meeting with the Consultants. Why was the order of the meetings?
NICHOL: We were preparing for a very important meeting which was the extraordinary meeting in -- later -- later, two weeks later and it was important to have these briefings, these preparation for that meeting and we took it in two parts on this occasion so that we heard from the paediatricians and others at a separate meeting. That seems to me a reasonable thing to do.
SUTHERLAND: So it wasn't the case that the Executives are dictating the narrative in this first meeting?
NICHOL: No, no.
SUTHERLAND: Thereafter meeting with the nurses and then finally the Consultants who were the people raising the concern.
NICHOL: No, there was not -- there was not a conscious division here. There were -- there were two sessions I think in the same -- the same afternoon.
SUTHERLAND: Nothing about the Families --
NICHOL: No.
SUTHERLAND: -- at all?
NICHOL: No.
SUTHERLAND: They should have been included in this, shouldn't they?
NICHOL: I am -- I'm not sure at this stage whether the Families should have been included in these meetings. This was the first time that I had heard anything about a spike in deaths. We were looking to the principal concern which was the safety of babies on the unit and we had actions that we needed -- needed to take. We hadn't got confirmation of those actions apart from the downgrading of the unit to special care unit and it wasn't until the board approved later actions that we -- we had decided where we were, where we were
going forward to.
SUTHERLAND: Okay. Well, let's have a look at the meeting with the paediatricians, please, that is INQ0006023. So you can see there at the top it reads: "Thursday 30 June"?
NICHOL: Yes.
SUTHERLAND: You can see the attendees there, DN, so that would appear to be your initials?
NICHOL: Yes.
SUTHERLAND: We can see that there are a number of Consultants who attend including Steve B, Ravi --
NICHOL: Jayaram.
SUTHERLAND: -- and Jim is referred to as well; yes? Now, you see at the top: "outline from TC: unexplained increase in deaths"? Then if we go on to page 2 -- forgive me, before you do, just bear with me. At the bottom of that, "Steve B", so that appears to be Stephen Brearey: "... went back a step" or "won't back a step. Does not matter what level with concerns about a member of staff. "We can reduce the cots HDU gestation but still not safe because of staffing." Do you see that?
NICHOL: I do, yes.
SUTHERLAND: If we go over the page. It says: "Ravi: starting point. What is safe? Reduce service but staff member not addressed. Discussed going to police and the impact of an investigation." Then we go on further on down the page. Further discussions between the Consultants, on to page 3, please. Towards the bottom we can see again: "Steve B: care is not perfect. Common theme of this nurse. Doesn't take away concern re this individual. Not [and underlined] change my opinion. Spoken in May to AK and IH re concerns." Do you recall this conversation?
NICHOL: Sorry, do I?
SUTHERLAND: Do you recall this conversation?
NICHOL: As -- as reminded by the note that we have just looked at.
SUTHERLAND: So we can see that Steve Brearey is quite clearly saying: whatever changes are put in place, it's not going to change his mind. The common theme is that individual. Do you see that? So if we go back to the conclusion, the main conclusion of the Clothier Inquiry, which we have already talked through to serve to heighten awareness in all those caring for children of the possibility of malevolent intervention as the cause of unexplained
events, so Steve Brearey, paediatrician, head of the neonatal unit saying there: it will not change his opinion. That's the date you should have called the police.
NICHOL: The --
SUTHERLAND: You should have called the police, that is the date.
NICHOL: These were views being expressed by individuals in anticipation of the -- the meeting that took place. Those were not -- not the views that were expressed at the meeting that was going to make the decisions about -- about the future of the unit and indeed about the issue of the police and I would -- I would say again that the consensus in that meeting was that the majority -- this was from the paediatricians, the majority of paediatricians agreed that the next steps were to undertake the external enquiries not -- not to call the police. So these -- these are thoughts in advance of that meeting which was taking the decision about police or not, external enquiries or not, supervision or not.
SUTHERLAND: Okay. Well, let's just carry on in this note. The next page, please, page 4. About halfway down, Ravi again -- sorry, just above halfway: "Ravi: concern potentially member of staff causing
harm, recurring theme." Then Sarah: "These babies should never have died."
NICHOL: Yes.
SUTHERLAND: You see that. Now --
NICHOL: This -- this is -- these were the views being expressed. This is why we invited the paediatricians to come to the board directly to express their -- their concerns and not to be party to the decisions, they weren't board members, but -- but to express their opinions about what the next steps should be.
SUTHERLAND: These were Consultant paediatricians, who were clearly identifying unexpected, unexplained deaths of babies on 30 June 2016. There was nothing stopping anybody calling the police, was there?
NICHOL: There was nothing stopping anybody calling the police.
SUTHERLAND: Can I just ask you about a slightly separate topic, just for a moment, moving away from that document which can come down, thank you. The Health and Social Care Act 2008 (Regulated Activities) 2014; that is a piece of legislation that you would be familiar with; is that right?
NICHOL: Not without referencing it to -- to see what the content was.
SUTHERLAND: Do you know what a notifiable incident is, a notifiable incident?
NICHOL: A notifiable incident would I think be an unexplained death, it would certainly include an unexplained death.
SUTHERLAND: The Health and Social Care Act 2008 "Regulated Activities" 2014 sets out the duty of candour at section 20.
NICHOL: Yes.
SUTHERLAND: That requires a health service body to act in an open and transparent way with relevant persons in relation to care and treatment and it mandates a series of steps. While I appreciate you may not recall the intricacies of it today, is it a piece of legislation you were familiar with --
NICHOL: Yes, it was.
SUTHERLAND: -- in 2015 and 2016?
NICHOL: Yes.
SUTHERLAND: So these were notifiable incidents and they should have been reported within the terms of that legislation, would you agree with that?
NICHOL: They should.
SUTHERLAND: Have you seen any evidence that that is what took place?
NICHOL: No, I haven't.
SUTHERLAND: I just wanted to ask you a little bit about systems as well. This is something that you talk about in your witness statement. Paragraph 42, you said it was primarily the people and not the systems that were the overriding factor. But you need to know that systems exist for them to work; would you agree with that?
NICHOL: Absolutely.
SUTHERLAND: You need to be trained into how to operate those systems for them to work; would you agree with that?
NICHOL: Yes.
SUTHERLAND: So I am just going to pray on your expertise for a moment. But Datix reports, do you know what Datix reports are?
NICHOL: Yes.
SUTHERLAND: And you will appreciate that incidents should be reported through Datix systems?
NICHOL: Yes.
SUTHERLAND: That's on the ground reporting of incidents, incidents, accidents and near misses; is that right?
NICHOL: Yes.
SUTHERLAND: We have heard over the course of the evidence these descriptions of Datix at the Countess of Chester. Dr Brearey described the grading as variable, the
grading of risk as variable. Dr Jayaram said there was no standardisation of which -- which incident would be Datixed. Ms Townsend said Datix weren't always completed and if they were, the quality was variable. Mr Semple, who took over from Ms Townsend, said there was no feedback on Datix reports and no feedback on incidents. Yvonne Farmer, who was a nurse of 15 years on the neonatal unit, confirmed she hadn't had any training in respect of Datix. So at a ground level, the Datix system having heard that evidence, appears not to have been working; would you agree with that?
NICHOL: Hearing that evidence there were deficiencies.
SUTHERLAND: For your risk management to work, you need your ground level reporting to work, don't you?
NICHOL: Yes, you do.
SUTHERLAND: So if your ground level reporting is not working, your risk management and your risk strategy cannot work; would you agree with that?
NICHOL: That's correct.
SUTHERLAND: Tony Chambers. You have told us a little bit about Tony Chambers. You appointed him in 2013 and we know that you describe him as a colleague, you had
a warm working relationship. Was he a friend?
NICHOL: Not a friend, no.
SUTHERLAND: But he was accountable to you --
NICHOL: He was.
SUTHERLAND: -- would you agree with that? We know from your witness statement, paragraph 109, you recalled the conversation with Dr Jayaram that we have heard today where you put your arms around each other, we've looked at the letter that the Consultants wrote and just perhaps we could have a quick look at that again. INQ0102361. It's page 78, please. You saw this letter on or around April 2018, April/May?
NICHOL: Yes, I did, yes.
SUTHERLAND: Sections of that relate very clearly to Tony Chambers. If we go over the page, if we may, and you will see there a box: "The Chief Executive's tone was aggressive and threatening." Above that: "The Chief Executive indicated we must agree to the decisions of the board and that a line had been drawn under this affair. We were to apologise to the nurse in question." Below the bold bullet points we have got in the
middle of the page: "Following the meeting, the paediatricians wrote 3 letters to the Chief Executive, signed by all, for fear that any one paediatrician might be singled out and victimised." Reading that description, would you agree Tony Chambers was not a fit and proper person?
NICHOL: No.
SUTHERLAND: You wouldn't agree?
NICHOL: I don't agree with that.
SUTHERLAND: You don't agree. You don't agree that?
NICHOL: I agree -- I agree these matters were raised directly with me by the paediatricians. I was not at that meeting. This is the 26th which Rachel Hopwood attended for me; I was not at that meeting. And -- and I discussed the matter afterwards with them in relation to very strong feelings they had about being bullied and victimised and -- and threatened which is reflected in this -- in this particular question.
SUTHERLAND: Okay. Well, if we may go to the next page, please. Just over -- sorry, just under halfway down that page: "Some paediatricians were coerced to enter mediation with the nurse in question with a threat of GMC referral if they refused. "In March 2017, the Chief Executive met with two paediatricians. The paediatricians explained 'we felt the deaths had not been adequately investigated and were concerned that parents had been misled. We asked the Chief Executive to refer the Trust for a police investigation'." Reading that description, if that was right, Tony Chambers was not a fit and proper person, was he?
NICHOL: No, I don't agree. I think he was in the middle -- in the middle of a process, I don't -- I don't believe the paediatricians were coerced into mediation and these, these were the views of the paediatricians but I -- I don't fully subscribe to -- to all those points to the level of saying Tony Chambers wasn't a fit and proper person.
SUTHERLAND: We know from the evidence of Lyn Simpson that she has recorded the way forward was to prevent a vote of no confidence so that Tony Chambers could obtain a new role, effectively. Now, I am not going to ask you to look at her chronology again. But I am going to go back to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and you will recall Regulation 19 places a duty on NHS providers not to appoint a person or allow a person to continue to be an Executive
Director or equivalent or a Non-Executive Director under given circumstances. To meet that requirement, there has to be assessment and review of individuals, doesn't there?
NICHOL: Yes.
SUTHERLAND: There have to be regular checks, don't there?
NICHOL: There has to be -- there have to be checks, yes, absolutely.
SUTHERLAND: NHS providers must have appropriate arrangements in place to deal with staff who are no longer fit to carry out the duties required of them?
NICHOL: Yes.
SUTHERLAND: You didn't investigate what these clinicians were saying in that letter, did you?
NICHOL: No, it was for Mr Chambers to -- to respond to the letter addressed to him.
SUTHERLAND: But he's accountable to you?
NICHOL: He is accountable to me and we needed to I think understand how that conversation was going to be played out -- this -- these were challenges in the form of questions. Mr Chambers responded. In the meantime, I was hoping that it would be possible to -- to mediate a bringing together of the clinicians and management which had fractured. So we were -- we were in the middle of a process of
reconciliation that had no quick fix.
SUTHERLAND: In your witness statement, you refer to the Kark review and I know you have referred to it today and you will be aware that that relates to a fit and proper person setting out seven recommendations and it says this at paragraph 5: "One of the identified problems relating to management in relation to those two organisational failures in that review was the ability of poorly performing managers and directors to move from Trust to Trust, often following a settlement agreement and a pay-off." Now, Mr Chambers finished his role with the Countess of Chester and he moved elsewhere, to Northern Alliance, didn't he?
NICHOL: Yes. MS SUTHERLAND: My Lady, I have no further questions, thank you.
LADY JUSTICE THIRLWALL: Thank you very much indeed, Ms Sutherland. Ms Woods.
Questions by MS WOODS
MS WOODS: Sir Duncan, my name is Leanne Woods and I ask questions on behalf of the other Family group. Again, if my voice drops, please let me know, okay?
Can I go back to Beverley Allitt, please --
NICHOL: Yes.
WOODS: -- and the Clothier Inquiry. So Beverley Allitt's offences were committed on babies during the time you were heading the NHS; that's right, isn't it?
NICHOL: Yes, it is.
WOODS: She was convicted of murders and attempted murders during the time you were heading the NHS; correct?
NICHOL: Yes.
WOODS: The Clothier Inquiry was set up and indeed reported during the time you were heading the NHS; is that right?
NICHOL: Yes.
WOODS: Presumably it was a significant event both for the NHS and by extension for you?
NICHOL: Very much so.
WOODS: You have been taken to Recommendation 13 of the Clothier Inquiry but can I just ask about your witness statement. At the very start of your 30-page witness statement there's a short section on Beverley Allitt and the Clothier Inquiry. Then to my eyes, both Allitt and the Clothier Inquiry disappear entirely from your witness statement when you are talking about these events at the Countess of Chester Hospital. The next brief reference comes -- it's paragraph 99, but in the chronology where it comes is an extraordinary board meeting on 13 April 2017 and there it seems that you asked a question which built in a comparison with Beverley Allitt. May I ask you this: from that, should the Inquiry or indeed the Families take it that so far as you can recall, that -- so the 13 April 2017 was the first time that you articulated a comparison with Beverley Allitt?
NICHOL: That's correct.
WOODS: Mr Harvey said in his oral evidence last week that he wasn't aware of your knowledge of and experience with the Beverley Allitt case and he never discussed Beverley Allitt with you. Does that fit with your recollection?
NICHOL: I missed with whom?
WOODS: Mr Harvey?
NICHOL: No, he didn't -- we didn't discuss that.
WOODS: You did not discuss that?
NICHOL: No.
WOODS: Okay. At paragraph 152 of your witness statement, you refer to the principal recommendation of the Clothier Inquiry and you say this:
"In practice, this important aspiration [so of keeping the possibility of malevolent intention in mind] runs up against the short term collective memory of the NHS and that of individuals working within the NHS." What I take from that is that you are saying memories fade, time passes, personnel change. So just to take an example, you might have a junior doctor coming in who probably was at school at the time of the Beverley Allitt events?
NICHOL: Yes, correct.
WOODS: Is that what you mean?
NICHOL: I do.
WOODS: But of course you didn't fall into that category, Sir Duncan, you were there at the time of Beverley Allitt and of course you were there in the Countess of Chester. So can you explain to the Families where Allitt and the possibility or indeed the actuality of nurses causing deliberate harm sat in your thinking and indeed the board's thinking between the end of June 2016 and April 2017?
NICHOL: I think the Allitt Inquiry and the recommendations it made were not in the forefront of my memory and it would not appear from the conversations that didn't take place which reference Allitt that they were in the minds or the front of the minds of -- of
anyone. And I tried to explain that this is absolutely fundamental aspiration. But you cannot rely on -- on collective memory, individual memory. And I -- I suggested -- when I was invited to recommend, I suggested that we had to embed this way of thinking into the system, almost by way of a checklist, a tick box, if there is an unexplained death, please tell us that you have considered the possibility of malevolent action.
WOODS: Well, I wanted to ask you about that because you obviously have a vast amount of experience both within the NHS and in public service generally. So one can see a checklist or some kind of document like that perhaps working on the ground with the clinicians right we have got an unexplained death, this is one of the many things that we need to think about. But how does that apply to the board and board members? How does it -- how should the memory of this kind of event be brought to the forefront of the minds of board members or indeed chairs of boards?
NICHOL: It certainly should through -- through the obvious mechanism perhaps of the safeguarding training for those members.
WOODS: Can I move to a different topic, please, which is the approach to communicating with Families.
Wrapped up in Letby's grievance against the hospital was a complaint about the hospital's lack of transparency on why she had been moved away from the neonatal unit and the Inquiry has heard evidence that the Trust took numerous steps to try to manage that and really then put it right for Letby, so there was a grievance procedure which proceeded, there were discussions at the extraordinary meeting on 10 January 2017 about not being as honest with her as the Trust could have been. She got an apology from Mr Harvey. Mr Chambers was telling her "Lucy, we have got your back". She was given very high levels of support from various Trust staff and we know, I think, that she saw the Royal College report before some of the Consultants and certainly before the Families saw that report. Did you -- did the board collectively -- ever consider that there was an imbalance, a somewhat perverse imbalance between the Trust's consideration of trying to remedy the lack of transparency with Letby on one hand and the ongoing lack of transparency with the Families?
NICHOL: I don't believe the Trust board did consider that.
WOODS: Do you know why?
NICHOL: I don't know why.
WOODS: Can you try just to take a moment and think about that, because it is clearly important to the Families?
NICHOL: I can -- I can try. I think we had -- we had the -- we had the grievance. You know, I have commented in my evidence about the grievance. I think it was basically misconceived as something that was happening at the time of -- of all that -- all else that was happening but it was -- it was an entitlement of Lucy Letby to -- it took place and that -- that was kind of running -- running in parallel to -- to other matters. It's clear from what I know now from the evidence that I have read that a huge amount of sympathetic support was being given by senior managers to Lucy Letby during the course of those events. The board I don't think was sufficiently sighted or sighted on -- on those matters.
WOODS: But of course one of the roles of the board is to provide -- I think some of the documents talk about robust challenge or constructive challenge, and to remind people who -- like the Executives who are there in the day-to-day, in the thick of it, to try to step back and try to see the bigger picture, would you agree
with that?
NICHOL: We -- we try to do that, I do agree with that.
WOODS: So where in the bigger picture were the Families?
NICHOL: The Families were not in the big picture. We didn't exercise appropriate duty of candour towards the Families and that, that was -- that was a failure. A serious failure.
WOODS: Sir Duncan, can I then ask you the same question, again going back to someone with your long experience of the NHS and public life and someone who's presumably given this a lot of thought. What more can be done at board Executive level to ensure that families are not kept in the dark and that are -- are not -- kept outside when things go wrong?
NICHOL: We just -- we have to reinforce the key messages of good governance and good board practice. We have to do this in training events, we have to do this almost, as it were, by way of on the job learning. We don't always succeed in doing that as well as we should. But we should redouble our efforts to -- to make sure that that happens in the future and in the present.
WOODS: With respect, Sir Duncan, that sounds like more of the same?
NICHOL: No --
WOODS: Have you thought of anything different or more radical than that?
NICHOL: I think I said earlier, we, we have a multitude of, of systems, board assurance, of risk assessment, of safeguarding, of Speak Out Safely. They all exist. There is training for those -- those systems. But at the end of the day we need I think to pay more attention to whether they are being observed in practice. So -- so that's -- for example, there should be audit of whether the -- the Risk Registers generated at ward level are being so generated through Datix and escalated appropriately. We need -- we need audit, we need external checks to tell us whether we -- what we have in place by way of a system of policy or a process is actually happening on the ground in practice and through the behaviours of people and you need to go out and find out through, through audit and other measures.
WOODS: Can I just bring you back to the Families?
NICHOL: Yes.
WOODS: So audit somewhat different from communicating with families?
NICHOL: Absolutely.
WOODS: Okay. So I think you have accepted that there
should have been, families should have been at the centre of the thinking on this in terms of how to communicate with them and can I ask, what went wrong for you, why were they not at the centre of your thoughts?
NICHOL: I am not -- I am not entirely sure. I think -- I mean, we failed and I don't want to -- we were in the middle of a hugely complex process that we hadn't finished, but that shouldn't have -- shouldn't have meant we couldn't have kept people informed along the way and we did not do that appropriately.
WOODS: Linked with that, please, the Royal College report, as you know, there were certainly at least two versions, the confidential version and the version that had the information about Lucy Letby in it. The version that was published and was eventually sent to the Families was the edited or redacted version. Doing that was not being open with the Families, was it?
NICHOL: No, but it -- arguably it was not being open with a number of other people who didn't receive the redacted report for the reasons that I've explained before, so the nature of the confidentiality of the individual involved.
WOODS: Can you see an argument that there should never be different versions of reports such as this where the report arises directly out of incidents involving patients and concerns of patient safety?
NICHOL: I think it -- I think having the two reports which the College were comfortable with I think was right in these circumstances and there could be similar circumstances in the future in relation to individual confidentiality.
WOODS: So let me just follow that through. Does it follow then that you are saying in this instance it was the right thing to do to send the redacted version to the Families --
NICHOL: Yes, I believe it was.
WOODS: -- and therefore keep them in the dark?
NICHOL: Not, not disclosing that information to them.
WOODS: Therefore keeping them in the dark?
NICHOL: I wouldn't put it that way.
WOODS: Final issue, please, Sir Duncan. At paragraph 26 of your witness statement, you say: "I was aware that Mr Cross had approached the Coroner about the deaths in the neonatal unit and he kept me updated." Did Mr Cross tell you directly that he had approached the Coroner?
NICHOL: He did.
WOODS: Okay, so that information came from Mr Cross?
NICHOL: Yes.
WOODS: Okay. Your statement says and that he had approached the Coroner about the deaths in the neonatal unit. Now, that phrasing could cover a wide variety of things. What did Mr Cross tell you that he had reported to the Coroner?
NICHOL: I can't remember the detail of what he told me. I knew he had approached the Coroner but I don't recall the detail now.
WOODS: Do you recall, because this is important and would have been important at the time, if he told you he had informed the Coroner about the paediatricians' suspicions that Letby was harming babies?
NICHOL: I don't recall him telling me that.
WOODS: Do you recall either you or the board asking either Mr Cross or the Executives directly: "Look, what has the Coroner been told about all of this?"
NICHOL: No, I don't remember that, I don't remember that question being asked.
WOODS: Okay. It's a question that should have been asked, isn't it?
NICHOL: Yes.
MS WOODS: Thank you, my Lady, thank you, Sir Duncan.
LADY JUSTICE THIRLWALL: Thank you, Ms Wood, Mr Kennedy, I am sorry, are you -- MR KENNEDY: Just one moment.
LADY JUSTICE THIRLWALL: Yes, of course.
Questions by MR KENNEDY
MR KENNEDY: Sir Duncan, can I just go back to the questions Ms Woods asked you about duty of candour and you told my Lady that there was a failure to communicate with the Families. You also then said to her that you felt it was reasonable for only the redacted RCPCH Report to be provided to the Families and I just wonder whether there's a consistency or inconsistency in those two propositions that you would like to explore a little further?
NICHOL: I don't believe there is an inconsistency. What I think the Families would have wanted to be informed about given there was information that could have been given to them was about -- about the enquiries that were happening, about the progress that was being made in the whole process of trying to ascertain answers to the fundamental question of why these deaths had -- had occurred. But I don't think that involves making available every piece of information. One in particular which had been classified as -- as confidential to an individual.
KENNEDY: So the principle is that the Families need to
be kept in the picture?
NICHOL: Yes.
KENNEDY: The question then becomes: to what extent whether they need to be given --
NICHOL: It does.
KENNEDY: -- all information, perhaps mislabel it, whether there is some information which is treated as confidential?
NICHOL: Yes. As much information as possible, but if there is confidential information, that should not be shared, let's say, in my view, or other views, then that should not be shared. MR KENNEDY: Very well, my Lady, thank you.
LADY JUSTICE THIRLWALL: Thank you very much, Mr Kennedy.
MS LANGDALE: No more questions from the Bar. I do understand that, Sir Duncan, you wanted to have an opportunity to say something at some point, I don't know whether that is still the case?
NICHOL: Thank you Ms Langdale. I do -- I do want to say I had a long career in the health service. I have never encountered a situation which generates as much -- as much angst, stress as this one and I wanted to say that the Countess of Chester failed to keep babies safe in their care and something that I -- I have found very, very stressful over time. More importantly, that -- that caused unimaginable grief for the Families involved with the babies who died, whose parents of the babies that died were, and I'm so sorry, I am so sorry that that happened in the way it did. Thank you.
LADY JUSTICE THIRLWALL: If you would just like to take a moment --
NICHOL: Thank you.
LADY JUSTICE THIRLWALL: -- while I just check through my notes, Sir Duncan, in case I have got anything else that I need to ask you about, I won't be very long.
Questions by LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: One very short and I think very easy question. You mentioned that you conducted the appraisal for the Chief Executives, so you conducted it for Tony Chambers. Would those appraisals have been recorded somewhere?
NICHOL: They are, they would -- they would -- there is a yes there is a written account of the appraisal.
LADY JUSTICE THIRLWALL: Thank you, just something I need to have a look for.
You mentioned that for several years he was exceeding expectations and then the year came when he was not meeting expectations?
NICHOL: Yes.
LADY JUSTICE THIRLWALL: Are you able now to say in summary what the issue was there?
NICHOL: I probably need to look at the -- the performance appraisal but there were a number of things which were not being delivered to the level that we wanted involving, for example, the Accident and Emergency Department performance, a raft of operational issues, maybe two or three or four operational issues where we felt that the progress -- I felt that the progress hadn't been sufficiently made to the point where the appraisal was recorded as not meeting expectations.
LADY JUSTICE THIRLWALL: And was there anything in respect of the matter that I am inquiring into, did that form any part --
NICHOL: It did not.
LADY JUSTICE THIRLWALL: -- of it? So relationships with the Consultants, that wasn't a part of your --
NICHOL: It is not part of that appraisal. The appraisal was looking at objectives that had been set
12 months ago.
LADY JUSTICE THIRLWALL: Yes.
NICHOL: The issue of relationships with the paediatricians which -- and the fractured relationships that were so detrimental to the hospital were -- were discussed elsewhere, not through the appraisal system, leading to the conclusion that we arrived at.
LADY JUSTICE THIRLWALL: You mentioned that Tony Chambers was looking for a new --
NICHOL: I did.
LADY JUSTICE THIRLWALL: -- position so he had obviously taken a decision to do that?
NICHOL: Yes.
LADY JUSTICE THIRLWALL: Do you know why he decided?
NICHOL: I think he had been in the post for nearly six years.
LADY JUSTICE THIRLWALL: Yes.
NICHOL: I think he felt that he had another job in him. He noted that in my appraisal with him in the year in question that I thought that his -- if I could use this terminology, I thought his best years perhaps were behind him.
LADY JUSTICE THIRLWALL: Yes, you mentioned that earlier.
NICHOL: I did -- he had -- he had been with us for five years and he wanted to move on; he thought he could aspire to another post in the NHS.
LADY JUSTICE THIRLWALL: Yes. Was there anything in what he was reflecting on which was to do with that which we are dealing with in this Inquiry?
NICHOL: No, I don't believe it was.
LADY JUSTICE THIRLWALL: That wasn't part of it. Thank you. We looked briefly at INQ -- and I'm afraid I have got a partial reference -- 56830031 which I think is the letter from the Consultants to you, but it may not be. I'm sorry. It will be 0005683. It could be, yes, thank you. Let's have a look, I'm sorry, I have underlined a section I want to ask you about but I'm afraid I didn't actually do it on the document itself, we won't take a long time. If we can't find it, we will move on. Can we look at page 31. I don't think this is the right document. It is the right document, thank you very, much Mrs Killingback. So if we go -- we have looked at this already, Sir Duncan and we won't take a long time over it, but if you go to the second last paragraph, it's the announcement about why Tony Chambers is stepping down then: "These investigations into neonatal deaths at the Trust have escalated over the past two years and inevitably put relations between senior management and paediatricians under exceptional strain." Can I just ask you about the use of the word "inevitably": was it inevitable that relationships would be under exceptional strain or was it result of the way it was managed?
NICHOL: It wasn't inevitable. I mean, it was a very stressful situation.
LADY JUSTICE THIRLWALL: Yes, indeed.
NICHOL: But it wasn't inevitable that people should have fallen out to the extent they did around that -- around that matter.
LADY JUSTICE THIRLWALL: Thank you. And then one short point. You were asked about whether or not the Consultants were coerced into mediation or something --
NICHOL: Yes.
LADY JUSTICE THIRLWALL: -- like that and you said you didn't accept that. Did you know that Mr Harvey, for example, didn't know that mediation was something that was voluntary?
NICHOL: I knew it was voluntary. I didn't know whether Mr Harvey knew it was voluntary.
LADY JUSTICE THIRLWALL: No, he didn't.
NICHOL: He didn't?
LADY JUSTICE THIRLWALL: Yes, so he approached it in a particular way.
NICHOL: Ah.
LADY JUSTICE THIRLWALL: Thank you. Then I suppose the last question is a more general one. You have made the point that there were lots of processes and lots of systems in place.
NICHOL: Yes.
LADY JUSTICE THIRLWALL: Some of them -- well, the whole -- well, we know what happened as a result of the use or non-use of systems and you say it's to do with what individuals, to do with systems. But I wondered, is the way of testing whether a system is effective by working out whether or not people find it easy to use?
NICHOL: I think we -- I think we have, we have to work -- work to that end. I think the systems are robust, I think there's variable practice around compliance with the -- with the systems. But unless we know where the compliance failures are, through questions, through examinations, through audit, then, then we are in the dark as to whether the systems are serving it.
LADY JUSTICE THIRLWALL: And I suppose there may be a point to think about, well, if you have so many systems and processes, perhaps that of itself is inimical to people using the process.
NICHOL: I -- I completely, I completely agree, and forgive me if this comes over in the wrong way, but I -- my analogy, I am sure an imperfect one, is I have a 300-page car manual. But what I really need to know is that there is anti-freeze, that the tyres are at the correct pressure and that it is safe to drive down the road. I do not want 300 pages of manual; I am not even sure who the manual is for.
LADY JUSTICE THIRLWALL: No, thank you. Those are all my questions. Anybody else want to just anything arising out of that? No, thank you very much indeed, Sir Duncan, you are free to go.
NICHOL: Thank you.
MS LANGDALE: My Lady the next witness is Mr Wilkie who I think is ready to take the stand.
LADY JUSTICE THIRLWALL: Very good. Do come forward, Mr Wilkie.
MR JAMES WILKIE (sworn)
LADY JUSTICE THIRLWALL: Do sit down. Ms Brown.
Questions by MS BROWN
MS BROWN: Mr Wilkie, could you just give your full
name, please.
WILKIE: James Douglas Wilkie.
BROWN: Mr Wilkie, you have provided a witness statement to the Inquiry dated 28 May 2004(sic), is that true to the best of your knowledge and belief?
WILKIE: Yes.
BROWN: In terms of your background, you were in local government and had a position of Director and subsequently as Chief Executive of the Council and were appointed to the Non-Executive Director of the Countess of Chester in April 2013; is that correct?
WILKIE: That's correct.
BROWN: You remained in position as a Non-Executive Director until autumn of 2017?
WILKIE: Also correct.
BROWN: Was this your first role as a NED?
WILKIE: It was.
BROWN: Is it correct that the time commitment at that stage was three days a month?
WILKIE: That was probably what was in the application form. I found in practice it was probably a little bit more than that, maybe 4, 4 and a half days, a month, that averaged out.
BROWN: Is it correct in addition to sitting on the board you also sat on the Finance and Integrated Governance Committee, the Audit Committee and you shared the partnership forum which liaised between management and trade unions?
WILKIE: Yes.
BROWN: Just in relation to your answer about the three days, whilst three days you think was on the application form, is your evidence that three days was not quite sufficient for the task indicated?
WILKIE: No, that is not what I meant and if that was the impression I gave, I apologise.
LADY JUSTICE THIRLWALL: No, no, it is just an open question.
WILKIE: I thought I was being asked how much did I actually spend on it and it would have been at least three days a month, but I think, looking back on it, it was probably four, I think it probably averaged out about one day a week.
BROWN: Why did you stand down as a NED of the Countess of Chester in autumn 2017?
WILKIE: Because I was moving house and I was moving outside the constituency area and would no longer be eligible to serve as a Non-Executive on the board.
BROWN: Do you currently have any position on any NHS Trust board?
WILKIE: Yes.
BROWN: What's that?
WILKIE: The chair of Blackpool Teaching Hospitals Trust.
BROWN: If we could turn up INQ0009246. Mr Wilkie, this -- and page 21 of that, please -- is an extract from the NHS Foundation Trust Code of Governance?
WILKIE: Yes.
BROWN: From the version of 2014?
WILKIE: Yes.
BROWN: It says there under "Main Principles": "The board is collectively responsible for the performance of the NHS Foundation Trust." Then going down to point G: "The Board of Directors as a whole is responsible for ensuring the quality and safety of healthcare services." If we then just turn to page 21 of that document. We will see then when it comes up, page 21 -- 21 of the INQ number, sorry, that deals with Non-Executive Directors?
WILKIE: Yes.
BROWN: Are we on 21, yes?
LADY JUSTICE THIRLWALL: Yes.
MS BROWN: That says: "Non-Executive Directors should constructively
challenge and help proposals on strategy." Then below that: "Non-Executive Directors should scrutinise the performance of management in meeting agreed goals and objectives and monitor the reporting of performance." Did you understand during your time -- that can come down, thank you -- at the Countess of Chester that you had collective responsibility for quality and safety of the hospital?
WILKIE: Yes, my -- my understanding was that I had both collective responsibility and individual responsibility as a member of the board. It was -- you asked me earlier, was it the first time I had been a Non-Executive Director? And the answer to that is yes. I have to say that when I started as a Non-Executive initially I found the transition quite challenging because I had been used, as an Executive, to have been able to get a lot more detail about the issues I was looking at. In simple terms, being able to look under the hood. It is not as simple to do that as a Non-Executive, but I was very clear and remain clear about the roles and responsibilities I had as a Non-Executive Director.
BROWN: Did you understand that your role was to constructively challenge and to scrutinise the
performance of the Executive?
WILKIE: I did and I believe I did so.
BROWN: Did you get that understanding from being familiar with the code of governance or was that from your past experience?
WILKIE: It was -- it was both. I mean, when I applied for the job at the Countess obviously I did my research and wanted to know exactly what was involved in it but I was under no illusions about the seriousness and the responsibilities attached to the position.
BROWN: Just dealing very briefly with training you say in your statement that you don't recall any significant training and that you got no recollection of safeguarding training and no recollection of guidance on whistleblowing or Freedom to Speak Up but that you accept on reflection training would have been helpful?
WILKIE: I --
BROWN: What training would have been helpful?
WILKIE: Right. What I am very clear about is I can't recall what training I may have done. Okay. I am not saying I didn't do that training but I just cannot recall it right. In terms of the -- the training that would have been helpful would have been provided or not was some of the subject matter that's been dealt with by some of the earlier witnesses today about asking questions, about roles and responsibilities, about safeguarding, about whistleblowing and so on.
BROWN: So your evidence is --
WILKIE: To be clear, I am not saying I didn't get that training. It's just that I can't recall participating in that training.
BROWN: Just dealing with written policies. In terms of the policies that this Inquiry are concerned with relating to safeguarding, risk management and to Speak Out Safely, when these events occurred, did you consider the Consultants were speaking out, was that what you understood them to be doing?
WILKIE: I cannot now recall whether I framed it in those terms. What I absolutely remember is thinking that this was an opportunity for the Consultants to talk directly to the board and to articulate their concerns to the board.
BROWN: If we could just turn to INQ0003014. So, Mr Wilkie, this is -- at page 2 of that, 30140002 -- the Speak Out Safely policy and we'll see there, I am just going to take to you a very short section in the bottom third of the page: "All concerns raised by staff about patient care will be dealt with seriously, promptly and be subject to
thorough and impartial investigation." It goes on a little bit further: "No recriminations will follow reports which are made in good faith about low standards of care." If we could then look at page 9 of the same document. This is looking about if a concern is raised in the middle of the page if a concern is raised or an allegation made about a person who works with children including a staff member who may have harmed a child, possibly committed a criminal offence, and then it outlines the policy which in essence is to refer it to a manager who will then liaise with the LADO. Now, we know in this case that none of those things happened. There wasn't a prompt investigation into the concerns about Letby, recriminations did follow against the paediatricians who were made to apologise by letter and there was no referral to the LADO until 2018. The document can come down, thank you. Looking back now, do you think that familiarity with those policies and in particular with the Speak Out Safely policy that we have just looked at, do you think that would have assisted you being able to constructively challenge the Executives and scrutinise their performance?
WILKIE: I do, but more than that, I also believe that
was it have the responsibility of the Executives who should have had a detailed working knowledge of those factors to bring that to the attention of the board.
BROWN: Do you think you ever consulted the speaking out policy?
WILKIE: Sorry, when you say "consulted"?
BROWN: Looked at. Did you go to see what the policy -- whether -- one, whether there was a possibly; two, if there was one, what it said?
WILKIE: I can't recall, I cannot recall doing that.
BROWN: In terms of Risk Registers, the Inquiry has seen a number of Risk Registers. These are the charts obviously with the green and the red. You were faced on the board with the situation where a number of individuals were worried about the risk that a member of staff, Letby, posed to vulnerable babies. That risk, the risk of a member of staff, wasn't ever put on a Risk Register. We know, and we will come to it, that you did recognise that risk and you went to see Alison Kelly specifically about it?
WILKIE: (Nods)
BROWN: How useful as a NED did you find the Risk Registers in assisting you as to what the real concerns were?
WILKIE: They were useful to an extent. I think what
the board was dealing with in this particular case was an extraordinary set of circumstances. Reading the Risk Register, you could probably find things in there that could have applied to that. But my feeling at the time and my recollection is that the board had to respond to the events as they were, as was reported to them at that time.
BROWN: Just turning to some meetings now, please, Mr Wilkie. On 5 July we know there was a public board meeting but prior to that, one of the other NEDs, Mrs Fallon, recalls that there was a private meeting of NEDs before that meeting and from her brief handwritten note it appears what was discussed was the neonatal unit, the fact there had been unexplained and unexpected deaths, that there was -- had been an internal review and was to be an external review and that the level, the unit level was going to be reduced down to a Level 1. Do you recall that meeting?
WILKIE: I don't. I see from the note that it said I was at that meeting and I have got no reason to disagree with that. Nor do I have any reason to argue that the matters relating to the increase in deaths was actually discussed at that meeting. However, what I am very clear about was that at that meeting, there was no mention of a suspicion that the paediatric Consultants had about this being a potential link to an individual.
BROWN: So is it your evidence that you don't recall the meeting?
WILKIE: I don't recall the meeting.
BROWN: But you are clear that you, prior to the board meeting on 5 July, certainly weren't informed about or concerned about --
WILKIE: No, had I -- had I been told about the paediatricians' concerns at that meeting, I would have remembered.
BROWN: Just turning to the public board meeting that was held. It appears that neither the increase in mortality on the NNU or the downgrading that was to be announced a few days later was discussed at that meeting. Why do you think that was?
WILKIE: I -- I don't know. This -- which date?
BROWN: This was the 5 July.
WILKIE: 5 July.
BROWN: It was a public board meeting.
WILKIE: I don't know, is the honest answer.
BROWN: When we say "public board meeting" that is public in that members of the public could in principle turn up?
WILKIE: Yes, yes, yes.
BROWN: Do you think the fact that it was a public board meeting in fact inhibited discussion of those issues and in fact inhibited the effectiveness of those meetings?
WILKIE: Possibly. Probably, actually, if I am being ... yes.
BROWN: Now, if we could turn to 14 July meeting and if we could call up INQ0003238, this was an extraordinary board meeting that was held. Can you recall what you were informed about the reason for this meeting, were you aware when you turned up what you were going to be discussing?
WILKIE: I can't recall. I suspect we might have been told it was about the increase in deaths. I have got no recollection that we were told in advance about the paediatric Consultants' concerns.
BROWN: Just to set the scene: of the Non-Executive Directors it was you Ros Fallon and Rachel Hopwood who were there. Mr Oliver and Mr Higgins were absent and this is the meeting that was attended by Dr Jayaram and Dr Brearey. You say in your statement that this was the first occasion that you became aware of the concerns --
WILKIE: Yes.
BROWN: -- about Letby; is that a clear recollection?
WILKIE: Yes, that is my belief that was the first time -- that is my recollection and my belief that was the first time I became aware of the paediatric Consultants' concerns.
BROWN: Because it appears that some of the NEDs may have been aware of this before, but you are clear that you weren't amongst that group.
WILKIE: Yes. I have seen from evidence bundles that have been provided to me that following the meeting referred to earlier, the NEDs meeting on 5 July, that a couple of NEDs went to see Sir Duncan and Sir Duncan shared the concerns but I was unaware --
BROWN: If you just stick to what you can recall --
WILKIE: Okay no, I don't recall.
BROWN: It's clear from those minutes -- we will go very briefly to them shortly, but it is clear from the minutes of that meeting that the decision had already been taken to downgrade the unit?
WILKIE: Yes.
BROWN: Obviously a significant step and the decision had been made to go to the RCPCH for a review?
WILKIE: (Nods)
BROWN: Was there any concern from you or from your fellow NEDs that these decisions had been made without reference to the full board?
WILKIE: No. And I can try and explain that. I mean, you asked me about the meeting. Thinking back, we walked into the meeting and were faced with a situation where we are told that paediatric Consultants have suspicions that an individual is deliberately harming babies on the unit. That then became the focus of my attention and whilst I can't speak for the other NEDs or the members of the board, I suspect that was the same for them.
BROWN: So nobody was raising why has this decision been made to downgrade --
WILKIE: No, no, no.
BROWN: -- and so on. Just in terms of your impression of the meeting, Mr Wilkie, you address this in your statement and you say and this is paragraph 44 of your statement, you say: "After almost eight years I do not have total recall of everything said at this meeting. However, I do clearly recall that Dr Brearey and Dr Jayaram seemed convinced that the baby deaths were connected with one individual Lucy Letby whilst the Executives took the position that there was no evidence to support this." You say later in your statement, and this is paragraph 92, that at this meeting when you first noticed the tension between the Consultants and the members of the Executive Team. Just bearing those impressions that you recall now, if we could go to page 4 of this meeting, we will see there just before halfway down Dr Jayaram stated -- and the meeting prior to this had been discussing the mortality increasing and the fact that the babies were not expected to die and the downgrade of the unit, and then at this point there came a moment when Dr Jayaram stated what he was to say next was confidential and not to be minuted. I am not going to turn you to it, but there are handwritten notes --
WILKIE: Yes.
BROWN: -- that say -- I think you have seen reference to "elephant in the room" and the clinical body being uncomfortable with Lucy Letby. Your recollection that I have just read out saying that you recall Dr Brearey and Dr Jayaram being convinced the baby deaths were connected to Letby sounds stronger than "uncomfortable". I just wondered if you could give us a feel of that meeting and what you understood --
WILKIE: Okay.
BROWN: -- about what Dr Jayaram was saying.
WILKIE: At that meeting, and after the meeting, I felt convinced that the paediatric Consultants absolutely and truly believed that an individual was responsible for harm to the babies. The view of the Executives was there was no evidence to support that and that's -- that's documented in the -- in the minute.
BROWN: Yes, and if we could go then, please -- because I think as you say this is rather reflected in some of your interventions, if we could go to page 5. We will see there Mr Wilkie, three quarters of the way down the page: "Mr Wilkie stated that he accepted that no evidence to say is due to an individual but there is no evidence to say the contrary. "His question is what has been changed since the last conversations. He understands the stakes here and in previous discussion there was considerable disquiet about an individual." The first question, Mr Wilkie there is: that refers to the last conversations and previous discussions. Can you recall now what that was referring to?
WILKIE: No, I was, I was puzzled when because the one of the questions I was asked by the Inquiry for the witness statement was what were the previous
discussions. And either I was minuted inaccurately or what I was doing was referring to what Dr Jayaram and others may have said at an earlier stage in the meeting because I am very clear that I did not know about the doctors' concerns until I got into that meeting.
BROWN: But you were expressing there that you were aware there was considerable disquiet about an individual?
WILKIE: Yes and it was -- it was very clear, they were -- they were very concerned about it.
BROWN: You go on, or the note goes on: "We are saying there is something wrong here as we are now supervising that person and Mr Wilkie stated that he wanted to better understand what are the critical issues that mean it is not appropriate to engage the police as he could see disquiet." What was your view when you came into this meeting, and as I understand it you were reacting at the time because you didn't know this was going to be raised in the meeting?
WILKIE: Yes.
BROWN: What was your reaction on the moment of contacting the police?
WILKIE: Okay, I have to say that in the meeting, at
that point, my primary concern was the safety of babies. Okay? I was -- I am going to use the word surprised that the Executives were recommending that the individual, we didn't know the name at that stage, I didn't know the name until much later but that the individual should be should remain on the unit on supervised practice. As you can see in the minutes, I asked a number of questions about the effect of this -- of that response and how safe the babies would be, okay?
BROWN: If you just pause there, so we can look -- have those minutes in front of us --
WILKIE: Sorry.
BROWN: -- as you are speaking, Mr Wilkie, if we could turn to first of all page 6.
WILKIE: Yes.
BROWN: We see there first of all it's your colleague Mrs Hopwood who picks up this issue and it says there the third paragraph down: "Mrs Hopwood asked how practical it was for the staff member to work under supervision."
WILKIE: Yes, yes.
BROWN: Then if we go to page 7, this is where you intervene, Mr Wilkie, and you say at the top: "Mr Wilkie said that as a layperson he did not know how effective the measures will be and asked how confident the Trust were they were removing all risk." It seems that Mr Chambers answered -- seems to answer slightly at a tangent, it says: "Mr Chambers replied there will be weekly monitoring on the neonatal services at the Executive Directors Group." You said: "Mr Wilkie said this was about the member of staff." We see at the bottom of that paragraph Mrs Kelly replying. "There was the option given that the staff members may feel too stressful, then they would be moved to a non-clinical area. However, the individual did not want to do so and wants to go to a clinical area" --
WILKIE: I'm sorry, where is that reference to Mrs Kelly? I am just trying to find it.
BROWN: Sorry, it's at the bottom of the paragraph that's been highlighted for you?
WILKIE: Right.
BROWN: "However", if you look at the last sentence of that --
WILKIE: Yes, I see it.
BROWN: "However, the individual did not want to do so
and wants to go back to the clinical area where the individual's clinical skills" --
WILKIE: Thank you.
BROWN: Then below that again: "Mr Wilkie asked if that would abate any possibility of further issues. Dr Brearey replied 'not completely'." So this is where you said your focus was the concern about the nurse?
WILKIE: Yes, yes, I mean, the reason I jumped ahead was because you asked me a question about the police involvement and what I wanted to just explain was that at that point in time sitting in that meeting I believed my primary responsibility individually collectively, was to do what I needed to do to ensure the future safety of that unit and the babies on it, right. I don't want to dismiss or reduce the significance of the police involvement. But at that meeting, that was -- that was the predominant concern that I had and that's why I asked the questions that I had, as you can see from subsequent events I was not satisfied with the responses I was given.
BROWN: We will come to those.
WILKIE: Yes.
BROWN: I just want to go to a few other matters that
were discussed at this meeting?
WILKIE: Yes.
BROWN: So if we could go to page 8. First of all, just at the top just to return briefly to the police, it says there: "Mr Cross outlined his understanding of what action the police would take if they were called to investigate the matter". Can you -- I appreciate it wasn't your focus but can you recall what Mr Cross was saying about what would happen if the police were called in?
WILKIE: I can't -- I have seen -- I have seen references but I cannot recall what he said at that meeting.
BROWN: No, we are interested in your recollection.
WILKIE: Yes.
BROWN: Then the discussion moves on to the RCPCH Review --
WILKIE: Yes.
BROWN: -- and in summary, it seems to be there are two issues that are arising that are dealt with by you and Mrs Fallon concerned with what would be the Terms of Reference and what would be the focus of that review and also you bring up timing.
WILKIE: Yes.
BROWN: Dealing first with the focus of the review, we see halfway down Mrs Fallon asked if the external review would look at staffing. Then the paragraph down again, Mrs Fallon asked if there was a direct correlation, would they uncover this, referring to the RCPCH: "Mr Harvey replied that as part of the process any issues will be outed and we will advise them of the supervision of staff as it will be part of the measures we have undertaken." Then there is a reference to Mr Harvey giving details of the draft Terms of Reference. Do you recall yourself looking in detail at the draft or at all at the draft Terms of Reference to understand exactly what the focus of that review was going to be?
WILKIE: I -- I don't recall looking at it at that point, I have looked at it subsequently. I can give you a view if you are interested in what I probably thought at the time. But basically the -- the impression that the board was being given was there's something happening here, there's no evidence to support the paediatric Consultants' concerns. What we want to do is a detailed piece of work to inform the board's position on this. That was my broad understanding of what the exercises were about.
BROWN: I think you helpfully have set out in your statement what you understood or what you believed you understood at the time and you say: "I understood the purpose of the review was to identify any possible cause of the baby deaths other than the actions of an individual."
WILKIE: Yes. Sorry, what paragraph is that?
BROWN: It is paragraph 51.
WILKIE: 81, sorry.
BROWN: 51, sorry?
WILKIE: 51, sorry.
BROWN: So it's the second the last sentence of that -- sorry, the penultimate sentence: "I understood the purpose of the review was to identify any possible cause of the baby deaths other than the actions of an individual."
WILKIE: Yes, yes, yes.
BROWN: So you understood that the RCPCH would be looking at it directly in a sense to see if there was some other cause?
WILKIE: That -- that is the way -- that is the way it's phrased, okay. That is what I said in the statement at the time because I thought initially -- and might come on to this on the board of 10 January, but I thought initially that if -- if the -- if the -- the
Royal College came back and said this probably happened because of X Y and Z, then that would inform the board's views about the accuracy of the paediatric Consultants' concerns.
BROWN: We see on that page as well in the middle of the page that you are also concerned about timing?
WILKIE: Yes.
BROWN: Because you are asking whether it would be available in mid-September?
WILKIE: Yes.
BROWN: Then if we could go on to page 9 we see that Mrs Hopwood at the very bottom page picks up this theme and says another board meeting should be held post review as a minimum?
WILKIE: Yes.
BROWN: Unless there is a need to get together sooner. So at that point the board seems to be concerned to follow up what's going to happen. In fact, we know that another board meeting to discuss this issue wasn't held until January. Looking back, do you feel you should have been requesting an update sooner?
WILKIE: In retrospect, yes, but equally what I can't recall is whether we any information from the Executives why they hadn't reported back. I just cannot recall that.
BROWN: If we can go then to page-paragraph 52 of your statement?
WILKIE: Yes.
BROWN: Because you deal with what happened then. So the conclusion of that meeting was that the point was that Letby was going to return under supervision to the unit?
WILKIE: Correct.
BROWN: And that the RCPCH Review was going to go on.
WILKIE: Yes.
BROWN: You say in paragraph 52, the second part of that: "I was deeply concerned over whether the view of the Executives that Letby should remain on the unit but be placed under supervision was an adequate and effective response to prevent any further harm to babies occurring. At the meeting on 14 June I reluctantly went along with the view of the Executives. However, after the meeting I immediately regretted not dissenting to the view of the Executives and not insisting that Letby ... removed from the unit". Did you feel at the meeting that you were not being listened to or is it that you didn't express your views forcefully enough?
WILKIE: I think I expressed my views pretty forcibly.
I think I was very clear in what my views were. I'm not sure who else round the table agreed with me, some of the other Non-Executives did ask questions. But my recollection is I was asking more questions and more direct questions about how sensible this was, that is not the words I used at the time but that was -- that was my intent. I think also I know also that the chair, because it's minuted, indicated that if a majority decide this is what we should do, then that's what we should do. So from the sense I got was he picked up disquiet on my part but felt it needed to go with a consensus majority and I can understand why -- why he said that at the time. But I left the meeting and, as I say, I was immediately -- I immediately regretted it.
BROWN: You set this out in your statement and you sort of evocatively say you had a sleepless night and decided --
WILKIE: Yes.
BROWN: -- you wanted to go and see the Chief Executive, I think. He wasn't available and you in fact saw Alison Kelly?
WILKIE: Yes.
BROWN: Can you just very briefly describe that, that meeting with Alison Kelly?
WILKIE: Right. I can't remember word for word but my overall impression some time after was: it was a perfectly cordial civilised meeting. Alison's overriding concern seemed to be the impact that removal from the unit would have on the individual. I took the view that patient safety trumped any concern of an individual member of staff's feelings, yes? She then said that she would speak to Tony Chambers about my concerns because, as you have said, he wasn't on site that day.
BROWN: You say in your statement you asked her to put your views to the Chief Executive and I think you then called Sir Duncan Nichol?
WILKIE: I did. I phoned Duncan that afternoon just to tell him what happened because I didn't want him blindsided or surprised by what I had done.
BROWN: What was his response to you?
WILKIE: I can't remember the exact words. It was -- I think it was along the lines of: well, that's fine. If that's what you feel that you need to do, then that's fine by me.
BROWN: If we could turn now to another document, this is INQ0003120. Mr Wilkie, this is a letter that you didn't see at the time but I think have subsequently been shown. And
this was a letter that was sent to Mr Harvey on 5 September, it was Monday 5 September?
WILKIE: Yes.
BROWN: It's the letter from the RCPCH about the review they have done: "Thank you for inviting the RCPCH to review your neonatal services last week. I explained that we would write to confirm the short-term advice which the team shared with you, Alison [that is Alison Kelly] and Tony Chambers on Friday." Then they go on: "The Review Team was not aware until we met you [that is until they met Ian Harvey] on 1 September that action had also been taken in early July to move one of your nurses from the unit to other duties with a requirement she does not contact colleagues from the neonatal unit." Would that have concerned you, that it seems that the RCPCH weren't fully aware until they met on 1 September?
WILKIE: Yes.
BROWN: If we could go over to the next page, we look at what action they were recommending. They are saying: "Our understanding is that an allegation has been made and therefore a process of investigation needs to
be put in place which sets out the nature of the allegation and the process you will follow to investigate it." That's investigate the allegations in relation to the nurse. Then below that: "The Review Team agrees from the information received that the pattern of recent deaths and the mode of deterioration prior to death in some of them appears unusual and needs further enquiry to try to explain the cluster of deaths. This was not possible within the terms of reference for the reviews or from the information received. To this end, we recommend that a detailed forensic Casenote Review of each of the deaths since July 2015 should be undertaken, ideally using at least two senior doctors with expertise in neonatology/pathology in order to determine all the factors around the deaths." Do you think, as I say, just in terms of timing this was received in the following day, there was in fact a board meeting, a public board meeting, do you think you should as the board, as a Non-Executive Director of the board, should have been informed of the contents of this letter, either at the public board meeting or as a pre-meeting on 6 September?
WILKIE: Yes, and other things we should have been informed about also. But yes, we should have been.
BROWN: If you had been, do you think this would have prompted you to reconsider whether the police was something that needed to be considered?
WILKIE: Absolutely, as soon as I saw that and some of the other documentation that was available to the Executives, I mean, bluntly had at the time of that board meeting on 10 January that I been aware that the confidential version of the report had actually highlighted an immediate action, to investigate the allegations, had I been aware that Dr Hawdon had identified there were four unexpected and unexplained deaths, I think I would have taken a very different via. Now, we were never given as a board the confidential report nor -- nor the letter that's sitting in front of me just now. We were given the redacted version of the report and the Executives did say that we had been given a redacted version because -- I can't remember the phrase, but there was sensitive, personal information in it --
BROWN: We are going to look at the meeting of 10 January but just in terms of that report --
WILKIE: Yes.
BROWN: -- when, just to tie that down, do you think you were given the redacted report? Was that prior to the meeting?
WILKIE: I cannot -- I cannot remember but I've since been told that the report was handed out at the meeting on 10 January, right.
BROWN: But you can't -- you are not clear on that recollection?
WILKIE: I cannot recall that, right.
BROWN: If we could go then to the minutes of the 10 January, so this is INQ0003237.
WILKIE: Yes.
BROWN: We will look in a minute, a paper was given by Mr Harvey, we will go to that in a moment. But this, Mr Higgins wasn't at this meeting but the rest of the Non-Executive Directors including yourself were present. It's clear that Mr Harvey there, we see on the first page, is talking about the detailed review of the RCPCH?
WILKIE: Yes.
BROWN: I think the evidence you have just given is that you -- you can't recall whether you are given it, but you are clear you never saw the full version; is that right?
WILKIE: The confidential version that refers to the investigation into the individual I never saw, neither letter nor report.
BROWN: If we can go over the page, at the top there it mentions that one of the recommendations -- so one of the recommendations of the RCPCH -- was for an in-depth review to be commissioned, this in-depth review not yet circulated. It says that postmortem results --
WILKIE: Yes.
BROWN: Given the role you had to scrutinise and hold to account, do you think you should have requested in firm terms that you needed to see that report in order to make any reasoned decisions on something that was so important?
WILKIE: Right. In retrospect yes, having read everything that I read. But on that date at that board meeting, the whole outcome of the Royal College report was framed in a way that the inference that I drew was that basically Letby had been exonerated, right. I did not know at that point that they had not looked at those issues and I didn't know a number of other things which we may come on to.
BROWN: I think if we can see at the bottom of that paragraph the one that's already been highlighted for you on the screen, but the bottom sentence of that paragraph says: "The case reviews [this is Mr Harvey speaking] very much reinforce what is in the review."
So that is Hawdon's report reinforces what's in the RCPCH review. "It comes down to issues of leadership, escalation, timely intervention and does not highlight any single individual."
WILKIE: (Nods)
BROWN: That was the message that you understood from the Executives, was it?
WILKIE: Correct and that's -- that same message is replicated in the recommendation I recall from -- from that meeting.
BROWN: We see then going on that Mr Chambers explains that they could draw a line under this part of the review once they have the full four reviews from Alder Hey. So it was clear that there was something that was incomplete there. In fairness, I should read the bottom of that paragraph. Mr Chambers goes on to say: "There was an unsubstantiated explanation that there was a causal link to the individual. This is not the case and the issues were around leadership and the timely clinical intervention." So he is repeating in effect what Mr Harvey has been said. But given the fact that you had heard from the
Consultants on 14 July and the strength of the message they were giving you that you, as you say, recall eight years later and given that you were being told there that the review was incomplete, they were still waiting for four, do you think that you should have challenged and not accepted -- we will come on to what the Executive decided, but do you think you should have been more challenging at that point?
WILKIE: Okay, later in that same meeting, I can recall -- and it's probably in the minute somewhere -- asking whether the Consultants accepted the recommendations of the report. And I think from memory, I was told something along the lines of the report had been shared in a controlled fashion -- I am not looking at the paragraph.
BROWN: Yes, should we turn to that --
WILKIE: Please.
BROWN: -- so that we are speaking with results?
WILKIE: Yes.
BROWN: -- in front of us. If we can go then to page 6, in the middle of the page: "Mr Wilkie asked if the Consultants accept the recommendations from the report and Mr Harvey then explains that the draft report had been shared in a controlled way with Dr Brearey and Dr Jayaram for comments." Were you concerned at that point that they hadn't -- it appears from that that not all the Consultants had seen the report?
WILKIE: I've -- I have agonised that point because when I've read that over, I can't -- I can't really reconcile in my own head why I didn't come back on that because he hadn't actually answered the question. Now, I have to be very careful here I am not saying that this is an incorrect record of the meeting. All I'm saying is that I don't understand why I didn't come back on that particular point. The -- the other point I would make is that the -- one of the reports -- and Dr Hawdon's report actually identified four unexpected and unexplained deaths. In Ian Harvey's introduction he actually said there was one unexplained death and that that was not unusual, or words to that effect. Now, the simple fact is I had no basis to disbelieve what I was being told by the Executives at that stage. Now, I don't know whether Ian Harvey had just forgotten or just hadn't, you know, triangulated the two bits of information. But when I saw the Royal College report, particularly the confidential one and I also saw Dr Hawdon's letter which refers to the unexpected and
unexplained deaths, had I seen those bits of information on 10 January, been made aware of those, my view would have been: why are we not calling the police?
BROWN: Just turning to the situation with the return of Letby to the ward --
WILKIE: Yes.
BROWN: -- at this stage. We needn't go back to it, I will just read what it says to you in the notes: "Mr Chambers has said to the individual and their family that we will manage as best we can a safe transition back to the unit but you will see from her statement this may be tricky." And that reference to the statement is the statement that was read out to you at the meeting?
WILKIE: Yes.
BROWN: The statement from Letby that was read out to you at the meeting. Then on the page that we have already got up, we see about a third of the way down: "Mr Chambers replied the individual's family want assurance that the bad behaviour by the Consultants will be dealt with." And then goes on: "We have given that commitment and will support the
individual back to the unit." Now, did you understand that the decision of the meeting was that Letby was going to return?
WILKIE: That's certainly what the minute says. I have to say that at that meeting and subsequently that was not the impression I got. Now, I cannot now say why I didn't believe Letby would be returning to the unit any time soon and look, there's two things at play here. One, I have already indicated that the board was basically told that all the problems are the result of these other factors, right. And the clear inference I drew from that was that Letby was no longer a possibility, okay. So on the one hand I might have been much more relaxed about Letby coming back, but I have to say I still didn't at that meeting have recollection I thought she was coming back. I don't quite know why.
BROWN: If we could just go to another document, so this is now the document that Mr Harvey -- the report that Mr Harvey produced at that meeting and you considered. That is 0003518. So this is the report, a brief report that was produced to the board. Do you recall seeing this?
WILKIE: I can't remember.
BROWN: What that says, it refers the first section to
the Royal College of Child Health and Paediatrics. It doesn't say that they were unable to find a reason for the unexplained cluster of deaths but it does go there was -- refer to the secondary case review, that is the review by Dr Hawdon that you hadn't seen and that the other review, further review by Dr McPartland, was incomplete in the process of completion. Then with that short summary, if you go on to page 2, we see the board being asked to, and if we look specifically at C: "... to support the Executive in assisting a staff member's return to work on the neonatal unit." Looking back over the overview of this report and that meeting, do you think that you were being given the full picture?
WILKIE: No. I have already said there were -- first of all those issues framing of how it was described by the Executives in the meeting. Secondly, there was the question of the Royal College's recommendation and investigation into Letby should take place. Thirdly, there was the juxtaposition of Dr Hawdon's view, there were four unexpected, unexplained deaths and Ian Harvey saying there was one, but I didn't. And in that recommendation, it's really clear that the reviews having found no evidence of a single person's culpability. So the inference I drew from that was that that had been discounted. Now, clearly that was wrong and I now know.
BROWN: Given that you had had the experience of -- the sleepless night experience --
WILKIE: Yes.
BROWN: -- earlier and given that you fully understood the import of this, that whilst you have said that you don't consider you were given the full picture, you were aware that the review was not complete?
WILKIE: Yes.
BROWN: Do you feel that the very safety mechanism that is the NED to question and interrogate and scrutinise was not working here effectively?
WILKIE: That's a big question because as a NED, as already said in my introductory comments you are in a very different position from an Executive. You don't have all the access to information, I used the phrase "look under the bonnet". When I was an Executive and I was writing reports -- were going in my name, I would go and interrogate people, I want to make absolutely certain that everything that was in the report was absolutely as it was stated. It's much more difficult to do that as a NED. And also we were being given assurances or we
were -- I will rephrase that, we were allowed to draw an inference, right, from what the -- from what the Executives were saying in the way they phrased it, right, that basically, there was no -- it wasn't down to a single person, single person's culpability. Nobody said: but they haven't looked at that; nobody said: but they asked us to do another piece of work, any of the rest of it. So in retrospect, the answer to your question is yes, at the time. I think as a NED it's not unreasonable that you take credible views that are given to you by the Executives if you do not have any other information sources available to contradict those.
LADY JUSTICE THIRLWALL: Thank you, I have just realised we have been going without a break, I am very sorry that we have done that, it's nearly two hours since the shorthand writer started, which is far too long. How much longer is there, Ms Brown?
MS BROWN: Five, ten minutes, I would say, if that.
WILKIE: I am happy to carry on, my Lady.
LADY JUSTICE THIRLWALL: Yes, thank you, but we have got a single shorthand writer who needs to take --
WILKIE: Sorry.
LADY JUSTICE THIRLWALL: That is all right. So we will just take 10 minutes so she can stretch her fingers and we will start again at 20 past.
(4.08 pm)
(A short break)
(4.20 pm)
MS BROWN: Mr Wilkie, we had just been looking at the 10 January. If we move on a month now to 7 February when there was a public board meeting. The reference is INQ0014821 and 0009, page 9 of that document. So this is the CEO update at the public board meeting on 7 February and you will see down there under the block that's been redacted, it says: "Mr Chambers stated the board would be aware ... July 2016 the clinicians raised concerns regarding an increase of deaths on the neonatal unit. The unit changed the admission criteria and the Trust invited the RCPCH to undertake a review." Then: "The RCPCH suggested a more in-depth independent review be undertaken which had been completed." And then says: "The independent case review highlighted some areas for improvement but did not identify a single causal factor or raise concerns regarding unnatural causes." At the time, can you recall thinking about whether
that was an accurate summary?
WILKIE: Okay, if I make one comment about my previous testimony --
BROWN: Yes, of course.
WILKIE: -- about the meeting on the 10th. Reflecting on it over the break, I think what I said was I had never seen various documents. That is my belief, right, I don't recall. But with the amount of emails and stuff I was sent, it's -- it's possible. I don't think so but it's possible. So just for accuracy, you know, I have no recollection, certainly I was unaware, just to be clear. So the question on this was: do I think that that was an accurate reflection of the situation at the time?
BROWN: Yes. At the time, did you feel that was accurate because what it doesn't say of course is that there are still outstanding matters going on and I wondered if that was anything that you picked up at the time?
WILKIE: Right. So that is certainly consistent with the narrative that the board represented on 10 January, but I now know that that isn't accurate.
BROWN: If we can go on then, thank you, to jump forward again to 13 April. So in the intervening time, is it correct, Mr Wilkie, that the concerns you'd had before regarding the nurse that had led you to go to speak to Mrs Kelly, to an extent those, you didn't have those concerns after January?
WILKIE: Okay. At that point in time, okay, the board had been told by the Chief Executive that there was no single causal effect identified. What they didn't tell us was they didn't look for it or they weren't able to do that piece of work. We could only go on the basis of what was there. So it is the case that at that stage my frame of mind was probably less anxious than it had been because of the statements that had been made to the board.
BROWN: Then we come to 13 April and this is the board meeting that Mr Medland --
WILKIE: Yes.
BROWN: -- the barrister attends. We see that, INQ0003236, and if we go over the page to page 2 of that, and in the middle of the page: "Mr Medland [so this is the barrister] stated that in his view there is no evidence of a crime but the Consultant view is to go to the police. He suggested that an alternative approach would be to approach the police member of the Child Death Overview Panel, although it is possible he may say he is unable to help
due to his position. He also suggested the Coroner Mr Rheinberg, but there would be a conflict of interest." Presumably it was something of a surprise at this point that having thought that the matter was not of concern we are back here, not quite a year on, thinking about the police again?
WILKIE: Yes, and I mean it's difficult to reconstruct events in your head after the passage of eight years, okay, but certainly I had come through a -- I had come through a process where I was very concerned because she was going to be left on the unit. I was then reassured when she was removed from the unit. I was reassured when I got the report on 10 January to say there was no single causal factor et cetera, et cetera. I suppose the conclusion I came to at that point was that because the paediatric Consultants were still articulating their concern about this, then that is why there was still a debate about going to the police.
BROWN: Did you, at any point, either the 10 January where we see you were asking the questions, we went to your comments about --
WILKIE: Yes.
BROWN: -- do the Consultants accept this and so on. Did it over occur to you or was it ever a point of
discussion with your fellow NEDs to ask the Consultants to attend again as they had in that first meeting, a need to see them separately from the Executives?
WILKIE: It, it -- it didn't. I mean I was, I was very clear in my own mind that the Consultants were convinced that an individual had deliberately harmed babies. In retrospect, should we have done that? Knowing all that I know now, then the answer is yes.
BROWN: So at this meeting, there's reference to the Child Death Overview Panel. What did you understand this, the next step that had been reached now?
WILKIE: I think the conclusion I came to at that meeting was that we were getting closer to a point of closure on this. But as, as referenced later in that report, in that minute, there was reference to the forensic work that needed to be done and I can remember, and it's minuted, expressing some concern about the length of time it had taken us to do that work and I think -- it will be in there somewhere -- I think I said, you know, "Can we truly argue that we acted expeditiously when, you know, we got these reports in January. Well, you got -- they got the reports in September/October, didn't they, but they went to the board in January and it's only now that we're actually talking about doing these pieces of work.
BROWN: I think if we go, just so we can see that to page 3, the next page. We will see that that's I think the point you are referring to the paragraph down?
WILKIE: Yes.
BROWN: Concern about the delay and that's the delay, is it, from July 2016 until the present, until the date then in April?
WILKIE: I think, I think what I was more referring to was not necessarily -- not necessarily the delay from January 16 as reflected on this, but I think it was about the delay between the report, we'd been told of the Royal College's work in January, and a suggestion that some further work had to be carried out and then here we are in April and the work still hasn't been carried out.
BROWN: If we just maybe go on to the end of that meeting. So page 5. We will see then Mrs Hopwood asks: "What if the Consultants after the forensic review still want to go to the police?" Mr Chambers replied that, "We would have a discussion with the Consultants." So was it your understanding that even at this point, in April, it was still being suggested that it was CDOP, the Child Death Overview Panel, was the route and that you weren't quite at the stage of going to the police?
WILKIE: But I think had we gone to CDOP at that point, it would inevitably have led to us going to the police.
BROWN: And I think that's -- Mr Wenham came across the case and that's in fact what happened?
WILKIE: Yes.
BROWN: But did you think to raise at that point, "This is enough. We have simply got to go directly to the police now" or were you reassured at that point that that's where the route was leading you?
WILKIE: Knowing what I know now, okay, we should have gone to the police on Day 1. We should have gone to the Local Authority Designated Officer within the 24 hours or what the statutory period is. We didn't do that. Now, I didn't know that at the time, but there were people on the board that should have known that.
BROWN: And if we can just finish the picture.
WILKIE: Yes.
BROWN: This is the last document I will take you to, Mr Wilkie. INQ0003517 and this is the meeting of 2 May. If we go to page 2 of that, we will see that, on page 2 we will see part way down that first paragraph: "The feeling was that we had done everything and that the next step was to consider a police investigation."
WILKIE: Yes.
BROWN: There's a question that you then raise a little further down in response to a question from Mr Wilkie about informing parents and staff.
WILKIE: Yes.
BROWN: What did you understand or had you given thought to what parents had been told up to this point?
WILKIE: Okay, I --I'm not sure if I was clear at the time what parents had been told. I certainly -- and I was asked this question by the Inquiry when I was producing my evidence -- would've thought we should have told the parents much earlier in the process. And I found it difficult to answer that question because originally we had a contended point with paediatric Consultants saying that they had suspicions and with Executives saying there was no grounds and there was clearly a genuine concern about giving the parents even more heartache by telling them that. However, by the time we get to this meeting we are now, we are now saying, "Right, we are going to go to the police" and my question was intended to actually try and inform -- well, are we going to tell the perhaps that we're going to the police? And as you see the answer I got was that the police would prefer the police
and the Trust to manage this and I didn't gainsay this because I didn't want to be doing anything that in any way prejudiced a police inquiry.
BROWN: Thank you very much, Mr Wilkie. If I can just take you back just finally to some reflections you make in your statement and if you could just maybe look at paragraph 97.
WILKIE: Yes.
BROWN: And also then read through paragraph 101.
WILKIE: Sorry, paragraph 97?
BROWN: 97.
WILKIE: Yes.
BROWN: Because you're reflecting on this --
WILKIE: Yes.
BROWN: -- the Consultants' position and the Executives' position.
WILKIE: Yes.
BROWN: Then if you could just now, in your own words to the Inquiry, explain what you felt about why this situation had occurred, why the debate had gone on so long and why the delay that you were raising at the end had occurred?
WILKIE: Okay. I thought at the time, and I still think, that the Executive Directors could not bring themselves to believe that a nurse had actually done
this, that it was such an egregious act, right, they just could not accept it. And I think -- and I don't know, this is my thoughts, right -- I think that that framed their actions moving forward.
BROWN: You say at paragraph 101 that you thought that at the time.
WILKIE: Yes.
BROWN: Do you have any reflections now on how as a NED that system could have been more effective at challenging that perception that you say you were conscious of at the time?
WILKIE: Yes, on -- had I had my time over again, right, and if I knew everything that I knew now on the 14th of -- I'm trying to remember which month it was now -- July 16, as well as insisting that they moved Letby off the unit, I would have also insisted it went to the police.
BROWN: Just on the point of how the NEDs could more effectively challenge that. How -- or do you have any reflections on given those rather polarised positions that you observed?
WILKIE: Yes, I think I certainly effectively challenged on the first point about Letby's presence on the unit, right. I think that could we -- could the NEDs have more effectively challenged? Yes, in retrospect, the answer has got to be yes, okay. I think at the time, right, if you look in detail at what the NEDs were being told and the way it was being framed, I think you might understand why they didn't more effectively challenge.
BROWN: You use the phrase in paragraph 97, you say, not in relation as you have said to removing Letby from the ward, we have heard what -- you did go and see Mrs Kelly about that. But in relation to the attitude of the Executives that you deferred to their judgment --
WILKIE: Yes.
BROWN: -- that there was no evidence to support the views of the Consultants?
WILKIE: Yes.
BROWN: Do you think you had the right level of expertise to challenge them because you have used the word "deferred" there?
WILKIE: And I am not -- I'm not dodging the issue. But you could ask a NED that question about virtually any matter that comes in front of the board. As a NED, as you know, your role is to constructively challenge. It's trying to be independent, it's to try to bring an external perspective to it. I deferred to their views because it was the Chief
Executive and it was the Medical Director, right, and I took the view that had this been me in a previous life and I had been presented with this and with the situation that we had, then I certainly would not have accepted the individual staying on the unit because it was an unnecessary risk in my view. You know, on the police coming in, at that time I took the view that we had experts. I know there's -- I know there's a debate about the paediatric Consultants and their degree of expertise as opposed to Medical Director, et cetera, but the Medical Director is still a very influential figure, right. In retrospect, should we have pushed back more? Should we have challenged more? I think the answer is probably yes. But I have to look at this in terms of what was done at the time, what was being said at the time, what we were being told at the time and what we all understood the situation to be at the time.
MS BROWN: Thank you very much, Mr Wilkie. I don't have any further questions. I don't believe --
LADY JUSTICE THIRLWALL: Ms Sutherland looks as though she wants to ask a question.
Questions by MS SUTHERLAND
MS SUTHERLAND: My Lady, thank you. Mr Wilkie, my name is Sara Sutherland, I represent
a number of the Families.
WILKIE: Yes.
SUTHERLAND: You will be pleased to hear I just have a few questions if I may.
WILKIE: Yes.
SUTHERLAND: July 2016, you are recorded as being deeply concerned and your evidence has been that you should have gone to the police then?
WILKIE: In retrospect, yes, yes.
SUTHERLAND: In retrospect. But you said people in that room should have known to go to the police then. What did you mean by that?
WILKIE: Right. If, if I look -- what I meant quite simply was the Executives, right, the people that were dealing with safeguarding issues on a day-to-day basis, right.
SUTHERLAND: You said the Medical Director was very influential.
WILKIE: Yes.
SUTHERLAND: And --
WILKIE: And not just that. But all medical directors are influential people.
SUTHERLAND: Of course. Clinicians --
WILKIE: Yes.
SUTHERLAND: -- with medical experience?
WILKIE: Yes.
SUTHERLAND: -- medical training. You are a NED who has a vast amount of experience, none of it medical?
WILKIE: Yes.
SUTHERLAND: You are on a board with other NEDs?
WILKIE: Yes.
SUTHERLAND: One I think that had some nursing training in the background?
WILKIE: Yes.
SUTHERLAND: But none of the others?
WILKIE: Yes.
SUTHERLAND: On reflection, would it have made it easier for you to challenge with a NED who was medically qualified?
WILKIE: On reflection, yes, assuming that that NED would have accepted the position that I was taking on the issue.
SUTHERLAND: Having heard the information that you heard?
WILKIE: Yes.
SUTHERLAND: But being medically qualified, having medical training as a NED would give an advantage. You would be able to push back, you would understand the terminology, the framework and it would make it easier to push back and challenge?
WILKIE: Broadly, yes.
SUTHERLAND: Were you told where Letby was being moved to?
WILKIE: Sorry, say again?
SUTHERLAND: Were you told where Letby was being moved to?
WILKIE: I -- my recollection was I was told she would be moved on to clerical duties. I know she was now moved to the risk unit. I honestly cannot remember if I was told it was the risk unit. In my head, she was going to clerical duties off the -- off the unit.
SUTHERLAND: So would you have been concerned to hear that she was going to the patient safety unit, the risk unit?
WILKIE: I honestly don't know. My primary concern was I thought it was an unnecessary risk and an avoidable risk to have her continue to be on the unit.
SUTHERLAND: January 2017, we have been to the notes. If you want to see if again we can pull it up but we have just heard you asked if the Consultants accept the recommendations from the report and Mr Harvey stated the draft report had been shared in a controlled way.
WILKIE: Yes.
SUTHERLAND: You questioned what that meant?
WILKIE: I -- if I look at the minute, right, I asked a question, right, "Are the paediatric Consultants happy with the recommendations of the report?" I'm told that the report's been shared with them. Now, as I said earlier, right, I don't know why
I didn't push back on that at that point in time because that wasn't a clear answer to the question that I asked. Now, it may, it might have been that I had drawn an inference that because I wasn't told they were unhappy that I assumed they were happy, right. But my primary point is I'm surprised I let that lie. And I don't know why I let it lie at that point.
SUTHERLAND: Well, you described it earlier as the narrative the board was creating?
WILKIE: Yes.
SUTHERLAND: At the time, did you feel that there was a narrative being created, that the clinicians were causing trouble?
WILKIE: Initially, no, right. When I -- when I used the word, the words "how it was framed" in my earlier testimony that was with the benefit of seeing all the documentation that I don't recall seeing at the time. So I was able to triangulate what was in that other documentation with what was said by key players at the board and that's why I said it was being framed. Later on in the process, when we get into the questions about grievances, right, and somewhere in the minutes -- and there's lots of pages but somewhere in those minutes I can remember asking about the nature of the, the comments that the Consultants were accused of
making and I was given the clear impression they were, they were unacceptable. So at that point nobody ever used the word "troublemaker", right. But in response to your question, at that point, I probably did come to that conclusion. Nobody used that language, by the way, it's just the conclusion I --
SUTHERLAND: The impression that was created?
WILKIE: Yes.
SUTHERLAND: Just going back a step to 10 January. It's also recorded in the notes: "We need to be clear on the message from the board and also the consequences for stepping over the line." Do you recall that being said?
WILKIE: It's in the minutes but I don't know what the intention of that statement was.
SUTHERLAND: You are recorded as having a discussion with Mrs Kelly?
WILKIE: Yes.
SUTHERLAND: You asked if the issues around the behaviours were accurate and Mrs Kelly replied that it was accurate, Mrs Kelly being the same person you had gone to in July --
WILKIE: Yes, yes.
SUTHERLAND: -- the previous year to raise your concerns --
WILKIE: Yes.
SUTHERLAND: -- and your complaints? So looking back, thinking about the documentation, you should have had available to you --
WILKIE: Yes.
SUTHERLAND: -- that should have been brought to your attention, do you feel that you were misled?
WILKIE: I feel I was misled at the board meeting on 10 January, yes. MS SUTHERLAND: My Lady, I have no further questions, thank you.
LADY JUSTICE THIRLWALL: Thank you very much, Ms Sutherland. I think those are all the questions.
MS BROWN: Yes, those are and, my Lady, the next witness is now going to be coming tomorrow morning, so that concludes the evidence for today.
LADY JUSTICE THIRLWALL: Thank you very much. Mr Wilkie, thank you very much indeed for coming and giving your evidence.
WILKIE: Thank you.
LADY JUSTICE THIRLWALL: You are free to go and we will start again tomorrow morning at 10 o'clock, it's obviously inconvenient for Mr Holden, but he is coming tomorrow, for which we are very grateful. We can't sit late this evening and I would like to avoid sitting late for all the obvious reasons this week. So we will rise now. 10 o'clock tomorrow morning.
(4.45 pm) (The Inquiry adjourned until 10.00 am on Tuesday, 3 December 2024)
Witnesses:
Simon Holden: Chief Financial Officer
Andrew Higgins: Non-Executive Director
Ed Oliver: Non-Executive Director
Rachel Hopwood: Non-Executive Director
Ros Fallon: Non-Executive Director
LADY JUSTICE THIRLWALL: Mr De La Poer.
MR DE LA POER: My Lady, our first witness this morning is Mr Simon Holden. I wonder if he might come forward to the witness box, please.
LADY JUSTICE THIRLWALL: Do come forward, Mr Holden.
MR SIMON HOLDEN (sworn)
LADY JUSTICE THIRLWALL: Do sit down, Mr Holden, and I will just begin with an apology that you were here for so much of yesterday and we didn't reach you.
HOLDEN: Okay, no --
LADY JUSTICE THIRLWALL: So thank you for your forbearance. Mr De La Poer.
Questions by MR DE LA POER
MR DE LA POER: Please could you give us your full name?
HOLDEN: Simon Holden.
DE LA POER: Mr Holden, is it correct that you provided to the Inquiry a witness statement dated 21 May of this year?
HOLDEN: Yes.
DE LA POER: Is the content of that witness statement true to the best of your knowledge and belief?
HOLDEN: Yes.
DE LA POER: By background, are you a professional accountant and chartered surveyor?
HOLDEN: Yes.
DE LA POER: Were you the Chief Finance Officer at the Countess of Chester between 26 February 2016 and 31 March 2024?
HOLDEN: Yes, but there was various roles within that.
DE LA POER: I think initially you were in post on an interim basis; is that right?
HOLDEN: Yes.
DE LA POER: There was also a period of time where a colleague had come back to work --
HOLDEN: Yes.
DE LA POER: -- and there was a splitting of responsibilities or a sharing?
HOLDEN: Yes.
DE LA POER: Was the effect of the varying roles that you had over this period that during the period that we are focused upon, which is to say 2016 through to 2017, that you did not attend Board of Directors meetings between August 2016 and January 2017?
HOLDEN: Yes.
DE LA POER: And that you also did not attend all of the Executive Team or Executive Directors Group meetings;
instead it was on an invitation basis?
HOLDEN: Yes, that's right.
DE LA POER: That invitation coming from Mr Chambers?
HOLDEN: Yes.
DE LA POER: Principally based upon the fact that you had something to contribute about the finances to those meetings?
HOLDEN: Yes, yes.
DE LA POER: Now, your witness statement, Mr Holden, is 26 pages long and on over 50 occasions you can take from me you say either that you cannot recall or you can't remember --
HOLDEN: Yes.
DE LA POER: -- or some variation upon that. Was the issue of the neonatal unit mortality and as it emerged the concerns about a particular member of staff something that you were paying attention to at the time?
HOLDEN: It -- it -- I was aware that the discussions were ongoing. I was at weekly Executive Team meetings and the board meetings leading up to July '16. But my focus was on the financial position of this Trust because when I joined in January 16, the Trust was running a £10 million deficit. You needed to sort of close the old year because our year end was 31 March,
your new year started 1 April. So my initial six-month appointment was all focused on money and updating the board and the Executives on money, but equally you were a member of the board and you were a corporate director and therefore had corporate responsibility for everything.
DE LA POER: Of course, as you have told us that during the period August 2016 to January 2017 you were not as engaged during that period with the board?
HOLDEN: Yes, yes.
DE LA POER: In terms of your first awareness of a problem on the neonatal unit, you tell us in your witness statement that you think that was an emerging concern but that you have a note in relation to a meeting on 29 June that there was a confidential issue about the neonatal unit; is that correct?
HOLDEN: Yes.
DE LA POER: At that stage, so 29 June and that meeting, do you recall whether there was any discussion about a member of staff or a nurse being the concern?
HOLDEN: Yes, I can, I can remember there was -- as it was articulated there was a view of increased mortality and the view there could be an individual. But I --
DE LA POER: An individual -- could you just finish that sentence?
HOLDEN: An individual involved. But that -- that was presented to the Exec Team and I can't recall who presented it, and it was quite quickly discounted with a view we need more information, there needs to be some further investigations into what is the cause.
DE LA POER: In terms of what was being suggested about the individual's involvement, was it as general as you have just described it or was there a suggestion that it might be inadvertent or incompetently caused harm or deliberately caused harm?
HOLDEN: I think -- I think in my statement I said it was emerging over time. Initially it was just, we've -- there is a perceived increase in mortality. There is a view it could be an individual but equally there are alternative hypotheses as to what could be driving it.
DE LA POER: Well, let's have a look, you have used the word "hypotheses", INQ0101091 and we are going to go to page 396 which is your notes of a meeting on 6 July. So we see in the centre of the page: "Executive Director, 6 July, test the hypotheses it is one nurse. Previous action. Feel actions are appropriate. All agreed with Consultants' actions. Nurse on two-week leave." So that's what you have recorded --
HOLDEN: Yes.
DE LA POER: -- in your notes. In terms of the "testing the hypotheses it is one nurse", what did you understand was being tested there?
HOLDEN: I -- I think, I think it was being presented by Ian Harvey and Alison Kelly and there was a view there needed to be further investigation to find out whether that hypotheses that was put forward was right or whether it was something else.
DE LA POER: Now, the Inquiry has received evidence that suggests that at an earlier meeting which you are not recorded as being present at that the thought was to look to see whether or not there was a change when the nurse was off; in other words --
HOLDEN: Yes.
DE LA POER: -- did the pattern stop? Does that resonate with your recollection in terms of the detail of the hypotheses?
HOLDEN: No, no, I can't recall those conversations.
DE LA POER: So far as you were aware from the meetings that you did attend, we know as a matter of fact the pattern did stop, that the sudden and unexpected collapses stopped, the deaths stopped. Did you ever attend a meeting after this point at which any of the Executives drew attention to that fact and attributed any significance to it or potential
significance?
HOLDEN: I can -- I can recall conversations that the unit had gone from a Level 2 unit to a Level 1 unit but it had retained the staffing levels at a Level 2 staffing. So I can remember conversations about the unit having good staffing levels to meet a Level 1 unit and, at that stage, I think there was weekly monitoring of performance to the Executive Directors. But that was one of the hypotheses that was being discussed in the meeting; that the unit being downgraded was a better place for it.
DE LA POER: So as you understand, that was one change made in July?
HOLDEN: Yes.
DE LA POER: The other change was that the nurse who is the subject of this note --
HOLDEN: Yes.
DE LA POER: -- was removed. You have described conversations where you -- tell me if I am wrong about this, this is for you to comment upon, that the conversations about the fact that the deaths had stopped were being discussed in the context of the downgrade of the unit. Was anybody saying in these meetings: but the other
thing that's changed is the nurse isn't on the unit?
HOLDEN: I can't -- I can't recall conversations about the nurse being moved, possibly being as a factor as the staffing levels.
DE LA POER: Thank you. We are going to take that down, please, and we are going to just speak briefly about the Risk Register entry that we know was made on 11 July. You comment upon this in your witness statement, probably the easiest thing for you to do is for you to bring up paragraph 50, please, in your statement in front of you, page 8, because you explain to us what you understand the phrase "potential damage to reputation of the neonatal service" is. Do you have that in front of you?
HOLDEN: Not yet, in the folder?
DE LA POER: My fault for failing to communicate. It is page 8, it's right at the bottom, paragraph 50.
HOLDEN: Sorry.
DE LA POER: I will read out what you say there: "My understanding of the meaning of 'potential damage to reputation of neonatal service' was that the neonatal service at the hospital had a reputation with both the public opting for routine maternity services and charitable fundraising and the wider NHS network for the commissioning and allocation of work. Any perceived reputational damage may have led to less work being referred and undertaken at the hospital." I just want to pick out some of the things that you have pointed at there. In terms of the reputation with the public, which is the first element, one of the matters that you draw attention to is charitable fundraising. Now, did you understand that there was a concern that if people thought less of the neonatal unit, less money could be raised by charitable means?
HOLDEN: Yes, it's worth understanding the hospital has a revenue budget to run the hospital and pay the doctors and nurses and then there was a separate registered charity and within the separate registered charity, there was a neonatal appeal to lead -- to replace the neonatal unit. Nurse Letby was the face of that appeal, in effect, and when I arrived at the Trust, they'd -- they had a target of £4 million to generate to build a new neonatal unit and they'd received £2 million, but the costs of running the charity were -- were exceeding the income even at that stage before any adverse publicity. So the 2 million they had raised was diminishing.
DE LA POER: I just want to ask you about what you have just told us there about Letby being the face of the charity. What do you mean by that?
HOLDEN: There was a charitable appeal specifically for the new neonatal unit and there was various promotional material and leaflets and posters and Lucy Letby appeared on quite a few of those.
DE LA POER: So were there discussions in the Executive meetings around --
HOLDEN: No.
DE LA POER: -- that concern?
HOLDEN: No, not around any individual nurse. I -- I refer to my note here, the conversations were about assuring the population of Chester, ladies who were due to give birth next week, that the unit was safe and equally there was a discussion about should we suspend the fundraising? Should we pause it? Should we keep it going? But it was with, with regard to the charitable side of the ...
DE LA POER: That is the first part that you have spoken about. The second part is the wider NHS network for commissioning and allocation of work. So there are you referring to the cycle that -- the commissioning cycle where the hospital has to put in a bid for work and as a result, funding is allocated to it on that basis?
HOLDEN: Yes.
DE LA POER: Crudely?
HOLDEN: Crudely, yes.
DE LA POER: So there was also a concern, was there, amongst the Executives that if the neonatal unit had a poor reputation, that less money may be provided in the future?
HOLDEN: I think, I think the concern was in downgrading the unit to Level 2 to Level 1, it could stay at a Level 1 unit, if the commissioners took that view.
DE LA POER: If it stayed at a Level 1 unit, it will get less money?
HOLDEN: Yes.
DE LA POER: In terms of the formulation of potential damage to reputation and neonatal service, were you part of any conversation which came up with that form of words?
HOLDEN: No.
DE LA POER: Do you recall there being a discussion at the Executive meetings that you attended in the terms that you have included in paragraph 50; in other words that people were saying: we are worried about the charity and whether we need to stop that and whether that will mean less money and that we are worried about whether we are going to get money in the next commissioning round if we are still a Level 1.
Were those the sort of discussions that were taking place?
HOLDEN: It wasn't that explicit but I can remember when it -- that risk was put on the Risk Register and shared -- the narrative was shared with the Executive Team and everyone accepted that was a, a good summary of various different people's perspective on it.
DE LA POER: Finally on this topic, just going back to what you tell us about Letby being the face of the -- or part of the face of the charitable fundraising effort. Was that connection ever made in the meetings when you are talking about the charity, that of course one --
HOLDEN: No.
DE LA POER: -- of the people --
HOLDEN: No.
DE LA POER: -- who's been -- well, the person who's been suspended is connected with our charity?
HOLDEN: No, it wasn't explicitly raised at that time.
DE LA POER: Are you able to say whether that was in anybody else's mind from what was said and how people were saying it?
HOLDEN: I -- I can't and I can't remember anyone saying it round the 16/17 period.
DE LA POER: But that was a connection that you drew, did you, at the time, a thought process that you had?
HOLDEN: Not -- not explicitly at the time. It was -- it was more to do with: we are running an appeal for a new neonatal unit, whilst at the same time we are downgrading our neonatal unit and what would we do if we decided not to have a neonatal unit, we have generated £2 million of charitable donations, how could you give that back to the public? It was those sort of -- we need to deliver the charitable appeal to replace the neonatal unit. Those were the conversations.
DE LA POER: I suppose it's just when first speaking to this entry, you expressly drew attention to the fact that Letby was a face of that charitable --
HOLDEN: Yes.
DE LA POER: -- effort?
HOLDEN: Yes.
DE LA POER: And was that a thought that you had at the time that you acknowledged?
HOLDEN: No, because I -- I -- to be quite honest I didn't know who Lucy Letby was, so I wouldn't put the face with the name at the time. I had only just arrived in a Trust that employed 6,000 people, so ...
DE LA POER: So why did you tell us a few moments ago about the fact that she was the face, how was that relevant to what you were talking about?
HOLDEN: Well, I think what was relevant was the neonatal appeal was definitely a consideration, discussed: what do we do? Do we pause it? Do we keep it going? I think it was only subsequently it became apparent that all the documentation had Lucy Letby's picture on it. But that was after the 16/17 discussion.
DE LA POER: Well, that may have been when it became apparent to you but anybody who knew about that documentation and knew about the nurse --
HOLDEN: Yes.
DE LA POER: -- would have been able to make that link at the time --
HOLDEN: Yes.
DE LA POER: -- when talking about the charitable ...
HOLDEN: Yes, yes.
DE LA POER: So I would like to move forward in time, please, to 16 March of 2017, which and I am not here referring you to your statement for the time being. This was a meeting at which Sue Hodkinson reported that she had spoken to Dr Jayaram the day before and that he had told her about three cases that he was particularly concerned about. Now, sitting there now, do you have a recollection of that meeting?
HOLDEN: No.
DE LA POER: Well, if we bring up the note, please,
INQ0003344, just attempt to prompt your memory before we come to the entry I am going to ask you about. This includes reference on this first page if you look one-third of the way down: on behalf of all bullied and intimidated. So it's very serious language that is being used there to report about how, as we understand it, all of the Consultant paediatricians were feeling, that is the reference to "all" and obviously the language of "bullied and intimidated" is exactly the sort of language that Executive Directors will not want to hear, particularly when it is they who are being suggested as the bullies and the cause of the intimidation. So does that prompt your recollection about this meeting in terms of the atmosphere of it?
HOLDEN: I can remember Sue Hodkinson feeding into an Exec team at some point to say how the Consultants were feeling as a body. I was very much on the edge of those discussions because there was different views in the meetings about how it should proceed.
DE LA POER: Thinking about that meeting, which may very well be this meeting that we are talking about here, what was the attitude in that meeting towards the concerns that the Consultants were being reported as having about being bullied and intimidated?
HOLDEN: I can't -- I can't recall. I can recall Sue reporting it to the meeting. I can't recall how anyone reacted to that other than my own recollection.
DE LA POER: Well, let's try it this way. Was your impression that the response was: well, they have no reason to feel that? Or was the response: this is a really serious situation and we need to understand better why they are feeling that way?
HOLDEN: I think -- I think the response was: there's no reason to feel that. But there was various different things going on and various people dealing with bits of work and I was very much on the outside of that.
DE LA POER: If we go to page 2, three-quarters of the way down, we see that you made or are recorded as making a contribution to this meeting. About two-thirds of the way down we can pick it up: "Sue: Ravi cannot see perceived gap between nurses and doctors." Do you see that entry there? That's after a long passage attributed to Tony Chambers. We can then see action plan against Alison Kelly's initials. And Sue saying: "I could pick up with Ravi." A reference to template and then next to your name: "Playing for time".
HOLDEN: I don't know what that entry is.
DE LA POER: Well, I suppose two obvious interpretations. The first is that you were suggesting that the Consultants were playing for time, the second was that the Executives needed to play for time. Can you help whether it's either of those or --
HOLDEN: I honestly can't remember at all or using that language.
DE LA POER: Thank you. We can take that down. Now, there was a meeting on 19 April, I don't think we will need to bring this up, but you make notes about it and you refer to those notes in your witness statement. In this meeting there's discussion about CDOP, the Child Death Overview Panel?
HOLDEN: Yes.
DE LA POER: I am sure you can bring to mind the reference. My question simply about that was: did you actually understand what was being talked about in terms of the detail or were you just making a note of what people were saying?
HOLDEN: I think by that stage, if -- if my memory's correct, that's after the KC's advice to the board that that was one of the --
DE LA POER: Correct.
HOLDEN: -- potential routes to go down.
I think everyone seemed to think that was the correct route to go down. I don't think there was any dissension in the meeting.
DE LA POER: It's just that your reference is to CDOP, there is no reference in your note to the police. Is that because the focus was upon CDOP rather than --
HOLDEN: I think it was going to -- to CDOP but I think it had been explained to me the police were a member of CDOP, so by definition ...
DE LA POER: There are two entries in your interview with Facere Melius that I would like to ask you about. INQ0012998 and it's page 5, the first entry, bottom quarter of the page. So do you see there is a large paragraph there in the lower half of the page and I would like to pick it up with the sentence that says: "But then equally ..." So I am sure that will be highlighted for you in just a moment. The start of the line halfway down: "But then equally ..." So if we just read this through: "But then equally I know Tony was meeting with Lucy's parents because I think Lucy lived -- she lived on her own, you know. You have got a member of staff who's being victimised and the parents are saying 'Look you know this, she's never done anything wrong'. Then
the poor girl's in bits and you've got all these Consultants are picking on her. They have got no evidence." So it's just that passage there. Now, my question really was: is this the way in which the other Executives who were the ones dealing with this issue were talking about it in the meetings that you attended?
HOLDEN: Yes.
DE LA POER: So if we break that down a little. Was it being suggested that Letby had been victimised?
HOLDEN: That was my impression from discussions with the Executives.
DE LA POER: Next, we can see "the poor girl is in bits", in other words, she's very upset and then this: "... and you have got all these Consultants are picking on her." Again, was it your understanding that the way in which the Consultants were being spoken about was that they were picking on Letby?
HOLDEN: The -- I think the Facere Melius is, is clumsy language and it's been transcribed from a Teams call or shorthand. But the content of that was my understanding following this Executive Team meetings.
DE LA POER: Finally "they have got no evidence". Again --
HOLDEN: Again.
DE LA POER: -- is that the sentiment, even if not your precise phrase --
HOLDEN: Yes, that --
DE LA POER: -- about what?
HOLDEN: That was the sentiment where Alison and Ian had looked at it and we had commissioned internal reviews and reviews had gone on and I was told the reviews didn't show anything. So that was the sentiment in those meetings.
DE LA POER: Page 11, please, you were asked about this in your witness statement, right at the bottom of your answer. So if we look at the bottom six lines perhaps just to run up to it: "It's probably from when I go back to being a Chief Exec, you know. I am a lovely finance director now but I think you need to have that culture of challenging, you know, every asset and Execs and every report of staff off being ..." Forgive me, I have started the sentence too late, it is my fault. If we go to the previous sentence: "I was gonna say I have witnessed bullying, witnessed some behaviours that I don't think are appropriate. It's probably when I go back to being a Chief Exec, you know, I am a lovely finance director now." I apologise for that?
HOLDEN: Yes, I ...
DE LA POER: So I suppose the first question is: did you witness bullying at the Countess of Chester?
HOLDEN: On reflection and, like I say, I had never seen my Facere Melius played back to me, I wouldn't say I had witnessed bullying. But I think positions became extreme and there was a level of firmer and firmer interaction.
DE LA POER: You also use the -- "some behaviours I don't think are appropriate", so perhaps a slightly lesser description of behaviour that might be described as bullying. Did you see inappropriate behaviour?
HOLDEN: No.
DE LA POER: So what do you mean by "positions became firmer and firmer", whose position became firmer and firmer?
HOLDEN: I think over time the position between Tony Chambers and the neonatal Consultants became strained and it became obviously strained and I think each party grew further apart.
DE LA POER: My final topic is this and we have heard
conflicting evidence on this point, but you were in post at the time that Tony Chambers left the Trust?
HOLDEN: (Nods)
DE LA POER: Were you aware of a vote of no confidence that was being proposed in him?
HOLDEN: I was aware there was a Medical Staff Committee meeting being called. I was aware Tony was anxious about it. I think the vote of no confidence was one of the possible outcomes of the meeting. I -- I didn't -- my -- my understanding was the meeting wasn't explicitly called to vote on a vote of no confidence. But the fact the Medical Staff Committee was meeting, that could have been one of the outcomes.
DE LA POER: The other part of what we have heard evidence, and again there is conflicting evidence on the point so I just want to hear what you have to say about it, is was there any suggestion that Mr Chambers' relationship with other directors whether Non-Executive or Executive, had broken down at the same time?
HOLDEN: No. I -- I think the relationship with the board, Execs and Non-Execs appeared to me to still be in place. But I'm not 100% sure of what other conversations could have gone on behind closed doors.
DE LA POER: No.
HOLDEN: But outwardly to me the relationship appeared
firm.
DE LA POER: So you didn't perceive the board as being dysfunctional at that time?
HOLDEN: No, no.
MR DE LA POER: Yes, Mr Holden, thank you very much indeed for answering my questions. My Lady, there are no Rule 10 questions.
LADY JUSTICE THIRLWALL: I don't have any questions for you either.
HOLDEN: Okay, thank you.
LADY JUSTICE THIRLWALL: I think we may have thought we would take half an hour and I see we have taken 32 minutes, but thank you very much for coming. You are free to go.
HOLDEN: Thank you.
LADY JUSTICE THIRLWALL: I think Ms Langdale may not have shared your confidence that you would be finished in half an hour. Do you mind if we just simply wait for the next witness to come up?
MR DE LA POER: I should say my Lady that she would be absolutely right to be dubious.
LADY JUSTICE THIRLWALL: Yes, she did have some evidence in favour of that.
MR DE LA POER: She certainly did.
MS LANGDALE: My Lady, may I call Mr Higgins.
LADY JUSTICE THIRLWALL: Yes, certainly, Mr Higgins, do come forward.
MR ANDREW HIGGINS (sworn)
LADY JUSTICE THIRLWALL: Do sit down.
HIGGINS: Thank you.
Questions by MS LANGDALE
MS LANGDALE: Mr Higgins, you have prepared a statement for the Inquiry, do you have it in front of you there?
HIGGINS: Yes, I do.
LANGDALE: Can you confirm the contents are true and accurate as far as you are concerned?
HIGGINS: Yes.
LANGDALE: Can you tell us firstly something about your background, your career and how you became a Non-Executive Director with the Trust?
HIGGINS: I was -- I had trained as a chartered accountant, and I spent 33 years, plus some months, with one of the large firm of accountants and advisers and after that time, I retired from the firm and I was -- with the intention of looking for some Non-Executive positions. We had just moved into the area from Manchester, not a very big leap, but so -- and at the same time as it happened in 2011, I came across an advertisement for a role with the Countess. And so naturally, sort of it being one of the key service providers within the area, I was attracted to it as somewhere where I hoped I could make some kind of a contribution to some of the essential public services that were provided and that was how my association with the Countess started.
LANGDALE: You tell us it was essentially an opportunity to give something back?
HIGGINS: That was -- that was the objective, yes.
LANGDALE: So a sense of public service and contribution?
HIGGINS: Yes.
LANGDALE: You tell us in your statement about the inductions and trainings that you received in relation to the role. Can I just ask you about safeguarding training and whether at any time you were given any training about what to do when a member of staff is suspected of causing harm to a child. Was that anything you were ever given any induction or training on?
HIGGINS: I don't recollect safeguarding specifically being part of the training that took place or the briefings that took place around the time of the induction process. Over time I do recollect that there was training briefings, whatever you want to call them, provided to the board as a whole around safeguarding
responsibilities and -- and that kind of thing. But at no time do I recollect the specific of, as you have just described it, harm to a child and reporting to the police. I don't recollect that coming up in either a briefing or training or anything of that nature.
LANGDALE: What about necessary actions and investigation when a baby suddenly unexpectedly dies; anything like that in the training you received?
HIGGINS: No, nor that.
LANGDALE: Who would you as a Non-Executive Director rely upon to inform you what external bodies or investigations were required if a baby suddenly and unexpectedly died?
HIGGINS: I think my first ports of call, so to speak, would be the Director of Nursing and the Medical Director. Because they were -- I knew and could see that they were intimately involved of any occurrence of that nature. So I think that would have been where I would have gone first to become informed.
LANGDALE: So Ms Kelly and Mr Harvey?
HIGGINS: Correct.
LANGDALE: You tell us at paragraph 6 of your statement that following the publication of the report of the Mid Staffordshire NHS Foundation Trust Inquiry in 2013 the
Countess reviewed its policies on whistleblowing and raising concerns about patient care and they were amalgamated into one policy. There was a Speak Out Safely steering group, wasn't there, of which you became a member?
HIGGINS: Yes.
LANGDALE: Can we just go briefly to a few documents around this. Firstly, the Speak Out Safely and whistleblowing policy, INQ0003014, and if we could go to page 6, please. We see here designated officers under this Speak Out Safely policy. Mr Harvey is Medical Director, Mark Brandreth, Director of Planning, Partnership and Development, Ms Kelly, Director of Nursing, Debbie O'Neill, Finance Officer, Sue Hodkinson, Human Resources and you are listed as the chair of Quality, Safety and Patient Experience Committee and Senior Independent Non-Executive Director and Hayley Cooper, Staff-Side Chair and RCN rep. Do you know how the designated officers were put together and chosen as a group?
HIGGINS: I think firstly because of those seven people, five were effectively the -- the members of the steering group, being the Medical Director or Ian Harvey, Alison Kelly, Sue Hodkinson, and myself and Hayley Cooper, I'm not sure whether she was formally
a member of the steering group but she quite often participated in those discussions. When I saw the -- there were numerous sessions of the group where the policy and a redraft of the policy was discussed and I don't recollect any particular discussion or process whereby Mark Brandreth and Debbie O'Neill were added to that list. But I thought since the policy was specifically for -- well across the Trust, I thought that their inclusion was to address matters that may not be related to issues of patient care or safety but more generally.
LANGDALE: If we go to page 14 of the policy, we see the flowchart for concerns: raising concerns with a line manager. If you can't do that, raise with a staff representative, head of service. If you can't do that, raise with a designated officer. So the designated officers are identified there. There are a number of Executives, aren't there, who are designated officers who might be expected to be involved if there was any internal investigations, the same for Mrs Hodkinson as HR. Do you think the selection of a group of designated officers who may be involved themselves in internal matters investigating suspicions and concerns was the wisest combination for that group?
HIGGINS: I -- I think I make reference in my statement somewhere -- I'm afraid I can't remember the paragraph, that I felt and discussed with colleagues around the table that I felt that potentially there was a conflict of interest around some of the membership of the -- of the steering group in that Executive managers could become involved or overseeing investigations into areas for which they had responsibility and that seemed to me to be a potential sort of bear trap around actually dealing with -- with matters. And I always felt, to be frank, that the way that this ultimately played out across the NHS whereby the appointment of an independent guardian was, was mandated, was by far the better way of, of resourcing or at least heading up a function of this kind.
LANGDALE: Why do you think that?
HIGGINS: Because I always set great store by having some independence of those who are responsible for managing -- either managing the Trust or providing patient care within it and it seemed to me that a referral to outside parties was a healthy indicator that the Trust was not attempting to hide or cover up anything that was going on.
LANGDALE: You say, indeed you do refer to it in your statement at paragraph 34:
"With the requirement to nominate guardians in 2016-17, the steering group raised the need for all members to undergo training." You attended Freedom to Speak Up Guardians training in February 2017?
HIGGINS: Yes.
LANGDALE: You were formally appointed as a Freedom to Speak Up Guardian?
HIGGINS: Yes.
LANGDALE: Did your colleagues -- when you raised concerns about the issues identified for Executives in some way may be being involved already in investigations, did they agree with you about those concerns?
HIGGINS: I think that they understood the point I was making. At the time, there didn't seem to be a particular alternative in that the policy was being promoted, I mean firstly the policy was being promoted by people who had a full portfolio of other, other responsibilities and it was clear that there was -- there was -- I remember discussions about treating to fund somebody from outside or a new appointment. And at the time, I think given the financial situation that Mr Holden has just described, it was clear that there were no funds available to fill the
role in that way. So I think my colleagues, as I say, understood what I was saying but were really in the position where there was no alternative but to carry on with the -- because there was no other resource available to do it.
LANGDALE: So it had to rely on Mr Harvey, Ms Kelly and Ms Kelly already having safeguarding responsibilities and other portfolios?
HIGGINS: I think rely on the group as a whole which included me and to a certain extent I think I and -- I think my colleagues on the group as well probably saw it that I was providing something of an independent presence around the table because again I think I say that in terms of the actual work and nuts and bolts of specific investigations, there was only once that I actually got directly involved myself which was absolutely nothing to do with -- with the neonatal position or unit. And -- and was purely a question of sort of stretched resources that -- that just couldn't otherwise provide some input into this so I provided it, I provided some, not all of it but some.
LANGDALE: In terms of numbers, and you may not have them off the top of your head, in the period 2016, 2015, 2016, 2017, how many complaints were coming through or concerns were coming through this Speak Up Safely route,
do you remember discussing at the steering groups many concerns?
HIGGINS: Yes, indeed. There was a log and the log, I remember, went to a few pages. So I suspect that on an annual basis, this is just a feeling because I can't remember the specific number, but in the 10s, maybe 30, 30 per annum and the objective really was to encourage people to come forward. So the number coming forward was seen as a measure that was important because if, if that log was unpopulated then clearly the system wasn't working at all.
LANGDALE: How did you promote the system --
HIGGINS: I think --
LANGDALE: -- within the hospital?
HIGGINS: I think the principal route was through the policy, through actually putting the policy out there. Because the way I understood the policy that its primary purpose was to make all staff aware, because it started off saying: well, patient safety and care is the responsibility of everybody within the Trust. So the policy was -- was the document that was intended to provide the kind of the blueprint and the "what to do" instructions if somebody had such a concern and they wanted to raise it. So promotion of the policy was absolutely key in promoting speaking out safely as -- as a topic and as an objective.
LANGDALE: And how was that done within the hospital, how was it made available to staff in the hospital?
HIGGINS: Well, I -- I think we, we talked at times about the -- the appointment or identification of champions within different parts of the hospital, so that there was a network of people who might be, shall we say, tasked with being more aware and familiar with the policy and using that and that was one thought. I think the -- I -- I honestly don't know the way in which the policy itself was promoted other than those kind of thoughts. But I think it was pushed out in the same way that other policies are.
LANGDALE: Can we just briefly look at minutes of a meeting on 20 February 2017 which is INQ0098375, page 3. It is a meeting Mr Higgins with yourself, Ms Kelly, Ms Cooper and Mr Cross, Mrs Hodkinson has sent apologies by the looks of the attendance list. If we look at box 6. AK, that is Ms Kelly, presumably said that "we need to consider whether the concerns raised by paediatricians in the NNU need to be formally logged". When this was raised -- can you remember this being raised as an issue first of all and do you know it was
being raised at this point?
HIGGINS: I do remember talking -- talking about this. Why specifically that minute appears for this particular meeting. I can't say.
LANGDALE: "After discussion, it was agreed unless we receive any further comments we should monitor the situation through normal routes. It is discussed at QSPEC and if anything arises, it can be brought back here." So nothing is said about formally logging it then. We know, Mr Higgins, that at this time, the Consultants have been warned that someone or there may be or there are references to GMC and at round the same time it appears here about whether they have been formally logged. Did you know the backdrop or why it might be being raised at this time?
HIGGINS: I certainly was not aware of any implications that the Consultants were going to be reported to the GMC. I was aware, however, that the kind of the tensions around -- around the entire situation had sort of worsened over time and that there was -- the relationship between the Executives and the Consultants had become very, very difficult.
LANGDALE: Did that assist your thinking or not at the
time as to why it was being raised suddenly, when it hadn't been raised before February 2017?
HIGGINS: I really can't -- I really can't recollect. I -- I must admit I didn't sort of view the Speak Out Safely steering group and this particular situation. I -- I think, as I said, I viewed the policy as a means and, and an encouragement for staff to raise concerns that they would not otherwise have raised. The policy talks about or talked about the escalation of any issues and how that would sort of work. And what it, what it ended up saying was that ultimately for something that was, couldn't be resolved in any other way it would go to the Chief Executive or failing that, to the chair of the Trust. At this time, I was -- it was, well, because I was totally aware that the matter of the underlying cause of the concerns was already being dealt with by the Chief Executive, the Medical Director, and the chair of the Trust was kind of intimately involved in what was going on.
LANGDALE: So when it says there "we should monitor the situation through normal routes", is that what you understood was happening, because there was an awareness of the Chief Executive -- the board -- that it's just being, it's being monitored and addressed?
HIGGINS: I think -- I'm not sure I would ever use normal routes for this situation that -- that everybody found themselves in. But different routes, I think, I think that's how I would put it.
LANGDALE: If we go, please, to another document INQ0098434, page 2, this is a meeting held on 24 April 2017, a Speak Out Safely meeting. If we look at that second box, please read that.
HIGGINS: Page 2.
LANGDALE: Yes, box 2. There we are. Review of the minutes: "Members reviewed the minutes of the previous meetings held on 20 February which had been circulated that morning. Members did not recall agreeing not to formally log the concerns raised by the paediatricians. Hayley Cooper asked how it could be logged as nothing had been received in writing and it had also been logged elsewhere ...internal/external reviews. Ian Harvey had also had a conversation with one of the Consultants who requested it to be logged under Speak Out Safely." Do you know why this was raised, and there seems to be competing views about what had actually happened?
HIGGINS: I'm -- I'm afraid I can't say why, why it was raised. I -- I don't, I don't recollect that.
LANGDALE: Just to complete that, at INQ0098458, page 1, this is a meeting, Tuesday 6 June 2017. Can you have a look at the top of the box there: "As part of the joint Countess of Chester police investigation in neonates, the police have requested copies of any notes from meetings where neonates discussed." If you could: "Members did not recall agreeing not to formally log the concerns raised by the paediatricians but the notes from the meeting on 20 February state that this was agreed. AK added that concerns were raised and whether these needed formally logging." So it continues. There appears to be some confusion about what's recorded to have been agreed or what's been asked here. If you can shed any light please do and if you can't, so be it.
HIGGINS: I think this was part of a -- a continuing discussion about how the steering group should recognise or formally recognise the concerns raised by the neonatal Consultants or not include them within the documentation that was generated by that group. And frankly, I think these were kind of indecisive conversations in that everybody seemed to recognise that the -- that the logging of the -- of the -- of the concerns was not likely to change the way in which the
Trust was addressing those concerns in terms of following them up or investigating them and therefore, I think that's why we -- we kept returning to it because it was just unclear how it would -- how it should be treated by this group and -- and indeed what impact the logging would have.
LANGDALE: Hayley Cooper's evidence -- or Griffiths evidence -- was that the Speak Out Safely committee glossed over the issues on the NNU. First of all, would you agree with that and, secondly, if so, was that because you understood and knew it was being addressed elsewhere?
HIGGINS: I think that that is I think that's an accurate way of describing it. There were no really sort of I suppose there were no structured or substantive discussions around the precise conduct or progress of investigations that were taking place even though the people around the table, perhaps Ms Cooper rather less so, were aware of, of these matters. So I think, I think yes, the group did gloss over them and for my part I -- I did feel that as I say in my own mind I could not resolve the question as to if this were logged, what difference is it going to make? I mean the only -- the aspect of that that I reproached approach myself for, particularly having gone through
all of this, was that I think what that failed to do was to, was to recognise or understand fully the position of the Consultants and I -- I did not, I was not fully aware of precise, the nature of or at least I understood that relations were becoming difficult but I don't think I understand -- I understood the extent to which they had been -- they had become so strained as to become virtually -- well, I mean almost a breakdown.
LANGDALE: That can go down, thank you. How many times did you actually hear from any of the Consultants? Were you in the meeting where they did attend one board meeting when they did attend?
HIGGINS: There was one later on in the process because the -- I think -- the first meeting in July 2016, I was not at that one. And then also the meeting on the 10 January.
LANGDALE: You weren't at that one?
HIGGINS: I wasn't at that one either.
LANGDALE: No.
HIGGINS: So --
LANGDALE: Don't worry about the dates. Can you remember how many times you heard from Consultants yourself directly?
HIGGINS: In -- in the formal meeting once.
LANGDALE: So once in one of the formal meetings.
Did you ever informally speak with them?
HIGGINS: No, I didn't.
LANGDALE: You say, and perhaps it helps to have it on screen, Mr Higgins, at Facere Melius interview INQ0003058, page 15, you say halfway through this paragraph: "I mean, one observation that would make sense I kept missing meetings at which the Consultants turned up. I can't remember when this was. I think this must have been in Susan's times when Ravi and John Gibbs came along. I think we all felt that and in fairness John Gibbs in particular, very kind of objective and, you know, kind of reasoned and reasonable exposition and description and explanation of where our Consultants were coming from what they had done a timeline and I think a lot of us came out for that, you know, blimey, if we had the opportunity to have a conversation like this. But from, you know, they turned up at different times when Tony and Ian were there. Maybe the fact is they were actually either kind of somehow suppressed from expressing in those terms but, you know, there was a lot of kind of shocking stuff, an awful lot of sympathy from where the consultants were from and it's just -- it's a massive, massive shame that that kind of meeting of minds or kind of that emotional link gives a hell of a sight earlier on the whole process for everyone." We can see what you have said. Would you like to expand on this? You said you met the Consultants once, was this the board meeting you are referring to when you spoke with them, with Dr Gibbs there as well?
HIGGINS: Yes, it is.
LANGDALE: That is the time you had a chance to hear from them and that is what you observe. How do you reflect upon that now, how much time you had with the Consultants during the period in question?
HIGGINS: I feel that I made a mistake in not personally pursuing a line that may have been open to me. The reason that I hesitated or didn't do that was because aware that the situation was strained and incredibly fraught, and also subject to some formal HR processes, I frankly thought that if I were to directly sort of independently intervene, then I could have made a bad situation even worse. Going through this whole process I think that either as chair of QSPEC or as a member of the Freedom to Speak Up group, I probably had some, some standing or ground from which to do that and I should have done but didn't.
LANGDALE: In your Facere Melius interview, and that can
go down, you refer to doing a double-take on being asked to chair QSPEC because you had basically financial experience and expertise and not clinical or a medical background?
HIGGINS: (Nods)
LANGDALE: Sir Duncan yesterday said he didn't see that as an issue. I don't know. Do you still see that that would have been preferable for a chair of QSPEC or not?
HIGGINS: I think at the time that I had the conversation with Sir Duncan, there were no Non-Executives on the board with medical experience. So it would not have been possible to -- to appoint somebody with that kind of background because they were not on the board at that time and I -- I viewed it as a big, big challenge. But I viewed it as one that personally I was interested in getting away from the numbers, I felt that this was at the core of what the Countess was about and so really in terms of trying to -- trying to do something that would help the Trust, it seemed sensible. And I think the discussions that we had at that time was that the chair's role was not to know everything about, about everything that the committee was talking about, considering or overseeing or monitoring but that the real role was to bring together a group of people with
all the requisite skills to do that job as -- as a corporate, as a collective rather than the chair doing it individually and it was on that basis that I -- I kind of embarked on -- on that role.
LANGDALE: You set out at paragraph 29 some of your key working relationships and how they were. Could you tell us about those in your words with the various people that you were working with?
HIGGINS: Shall I take them in the order that I --
LANGDALE: Yes, yes, and don't feel constrained by that, whatever you wish to say about them.
HIGGINS: No. Well, Sir Duncan: I -- I mean, I felt at the time of the recruitment process because I was part of the group that went through various -- through the interview process, I thought that we were incredibly lucky as a -- as I describe there. I mean, basically a small/medium-sized district general hospital to have somebody like that come through the door, I thought that we were very lucky and I -- I found that Duncan was always -- was always very, very supportive, could be, could be very challenging at times but in a constructive kind of way. So I -- I think I had a very good relationship with the chair and learned a lot from him. Ian, Ian Harvey: I thought -- I thought the appointment of a full time Medical Director was actually
a really, really good thing. Prior to that, the Medical Director role had been fulfilled by a Consultant who was still pursuing sort of clinical responsibilities and that kind of thing so I felt somebody getting in it full time was a good thing. I mean, Ian and I had a -- I think a good cordial relationship, but I'm not sure how to characterise but it wasn't the kind of thing where we would slope off the pub after work to have a drink together but it was perfectly cordial and businesslike, that's how I would describe that.
LANGDALE: You say in here you found him to be: "... sometimes distant and occasionally reluctant to engage fully. Often appeared more of a theoretician than a practical manager." Why do you say he seemed more of a theoretician than a practical manager?
HIGGINS: Well, I think it's a question of somebody sort of taking a broad management role by virtue of a qualification that is narrower than the role they have taken. And I say that because as an accountant I know lots of accountants get put on all sorts of roles, but sheer numbers do not qualify you for -- for a wider kind of portfolio and responsibility. So I always felt that Ian's management skills of people were not as well developed as his sort of skills around clinical issues and those kind of things.
LANGDALE: You say: "He seemed more comfortable discussing the highly esoteric statistics behind the standardised hospital mortality index or hospital standard mortality rate than the challenges in resolving any non-compliant practices in clinical teams." Why do you say that, did you have conversations about hospital mortality indexes with him or anything like that?
HIGGINS: Well, the -- I think it was the example that came to mind straight away because in terms of the sort of the -- some of the more esoteric information that came through because some of the statistics behind the derivation of mortality indices well were very, very difficult, frankly. Ian always seemed very on top of those and much more so than I was, and I suspect most of the people in the room, so that was that bit. The other -- the other -- the bit about non-compliant practices in clinical teams, that actually relates specifically to direct experience I have, again nothing to do with the reason that brings us here, but when I said I got involved in one Speak Out Safely
instance then I -- we ended up with a kind of -- part of the thing was that the everybody involved, including the line managers, should get a full run-down of what's come through a particular process and investigation. I took part in one of those with Ian and I felt that I was having to take the initiative and really sort of, shall we say, fire the bullets because Ian was reluctant to do so and it was probably not something that was within his -- his normal comfort zone of operation.
LANGDALE: Mr Chambers, how was your relationship with him and your impressions of him?
HIGGINS: Again, perfectly cordial. But not close. Not close. It was, I suppose by virtue of the -- the heavier or the heavy duties of the Chief Executive then opportunities to spend a lot of time with the Chief Executive were -- were relatively rare. So it was not as easy to build a close relationship. But again, I think it was always kind of businesslike.
LANGDALE: You say as you have now not a close working relationship, but felt Tony was keen to manage the message given to Non-Exec colleagues. What do you mean "manage the message"?
HIGGINS: That was prompted by really the issue that as
the years had sort of after I joined in 2011, things got more difficult, resources generally got more strained progressively and there was a lot of discussion about some of the actions that were proposed or proposed to be taken to kind of not resolve those difficulties but to -- to lighten the load a bit or to improve the situation. Many of those proved too difficult to put in place and I think when the Chief Executive was challenged on why those weren't working. I think at that time he became kind of more defensive because there wasn't a ready answer and so therefore I am not saying the Non-Executives were being awkward but it was -- there were difficult questions to answer and we clearly were not getting sufficient traction on improvements in -- in certain areas.
LANGDALE: You say of Ms Kelly: "I relied on her to a large extent as eyes and ears on the ground and I tried to support her in promoting key issues on safety and quality."
HIGGINS: Yes.
LANGDALE: Would you like to expand on that working relationship?
HIGGINS: I think part of it was driven by the fact that the machinery that drove the QSPEC agenda and material
was not exclusively, but to a large extent, nurse led and it came out of -- out of the resources that were immediately under the Director of Nursing's control and therefore almost inevitably to -- to really to go through the agenda and understand or prepare around some of the papers that -- and items that were coming before the committee, then the Director of Nursing was probably the natural port of call. Not on everything, but on a fair proportion of what was coming through. And I think it was that kind of necessity that really formed the basis of our working relationship.
LANGDALE: And you say of Mrs Hodkinson your: "... main interaction with Sue was on Freedom to Speak at matters. We had a friendly relationship and co-operated well on issues that involved us both."
HIGGINS: Yes.
LANGDALE: Finally, Mr Cross. You had many dealings with Mr Cross. You say: "I found him positive and helpful but I always sensed that he was conscious of managing his relationships with Non-Execs so that we didn't set hares running unnecessarily." Would you like to expand on that?
HIGGINS: Part -- that comment was driven largely by my experience on the Audit Committee which Mr Cross was, was one of the principal Executives kind of looking after or supporting that -- that committee and we -- we had an outsource internal audit who produced all sorts of reports with improvements and actions that needed to be taken and this was monitored on an ongoing basis. And it always surprised me how easy it was to put something on that -- on that log but how difficult it was to take something off and how frequently dates got changed and pushed back and the principal kind of defender of -- of the challenges around this was Mr Cross. So -- and that's what prompted that comment.
LANGDALE: You say "good working relationships with all Non-Exec colleagues". In terms of the Board of Directors, you say at paragraph 30 you think that the Board of Directors was apparently cohesive and this was manifested in its deals with the Council of Governors and in its public meetings. We know issues surrounding the neonatal unit were not discussed at the Council of Governors or in public meetings but did you think that form of governance was effective for other areas of importance for the hospital, it clearly wasn't relevant to what we are dealing with but generally as a matter of governance?
HIGGINS: I beg your pardon? Are you referring to public meetings?
LANGDALE: Did it work well, the Council of Governors and the public meetings?
HIGGINS: Oh, I think the relationship with the Council of Governors did -- did work well. They were -- many of them were very, very kind of active and diligent in their roles and their responsibilities for the public board meetings then, the members of the public quite often comprised governors and maybe nobody else. Occasionally somebody from the local press, but they were, they were very assiduous in -- in coming to board meetings and very, very engaged. I think -- and it was Mr Cross who was principally the person who -- who kind of -- I was going to say ran that relationship but serviced that -- that relationship from the point of view of the Executive and yes, it seemed to work very well.
LANGDALE: Why do you use the word "apparently": "I think the Board of Directors was apparently cohesive"?
HIGGINS: Yes. Well, I think I address that at the end of the paragraph because I think that I always sensed and I must admit that from a personal point of view I always found the public meetings -- I was never comfortable that they were -- it was a forum in which it
was possible to really dig into something really, really sensitive or indeed really confidential and therefore I always thought there was a sense of kind of theatre about them, that was not the same as substantive sort of discussion or challenge. And I think as time -- I have spoken previously about pressures increasing generally across the board, and I think this led to the Non-Executive cadre on the board feeling that there were places where Executive -- or management within the Trust might not have been as effective or as incisive as it could have been and the more that the pressures escalated generally, then the more that those kind of issues showed and therefore it didn't derail any -- any board business, but I think there was an underlying -- sort of an underlying current whereby Non-Executives were feeling less comfortable about the performance of the Trust as a whole and I suppose by -- by inference or responsibility some of the Executive Directors.
LANGDALE: You say at the end of the paragraph: "It was said more than once, often in informal discussions among Non-Exec colleagues, that the Countess had an optimism bias that suppressed problems and exaggerated successes. In a climate of escalating pressures this bias undermined the cohesion of the
board." Optimism bias. Can you give us an example of where you felt something was exaggerated or ...
HIGGINS: I am just -- I -- I struggle to think of an example of where something was exaggerated.
LANGDALE: Well, successes exaggerated is what you said, or alternatively suppressed problems then, either. Can you think of one?
HIGGINS: I think suppression of problems was -- was more -- I think that the organisation was probably more comfortable in -- in celebrating and lauding achievement and good performance than it was in kind of admonishing and doing something about poor performance. So -- and that was kind of part of that sort of general tone, I think, within the organisation because I think right from when I joined the Countess really sort of saw itself as -- as a very sort of, you know, a good place to work, and a good operator.
LANGDALE: When you say "admonishing poor performance" what was it about admonishing that was difficult or you sensed that was less comfortable territory?
HIGGINS: Calling it out. So if -- if there was -- I mean, within the -- within the monthly or the board reporting, the integrated performance report, there were a whole succession of measures across all sorts of things. That quite often was spattered in red, ie it was less than expected or required performance. And I think that the drilling down into why that was happening and actually doing something about it seemed to be quite difficult in a number of areas sometimes for very good reason. But I think there was an element whereby there was sort of a reluctance to do that.
LANGDALE: You were asked whether the management and government processes of the hospital failed to protect the babies on the neonatal unit from the actions of Letby and you identify three contributory factors. The first bullet point, paragraph 31, a lack of focus. Agenda were too long. Can you expand on that for us?
HIGGINS: Yes. I was thinking of QSPEC there in that papers for the meeting could quite often be 200, maybe 300 pages and because of the involvement in clinicians and nurses around the table, then they were held on a Monday and the starting time was 12 o'clock and by 2 o'clock then the clinicians may have clinics or other responsibilities, the nurses needed to get back to things. So it was a strict -- well, I tried to make it strict, but basically we had two hours in which to
transact the business and quite often there was an awful lot to get through. So it meant that to really kind of drill down into things could sometimes be difficult because there just wasn't really sufficient time.
LANGDALE: And how long did you get the papers in advance?
HIGGINS: I think maybe a week. Probably a week. Quite often there would be gaps in the papers because there were things to follow but those would follow subsequently, occasionally on the day, which was not something that I was very keen on.
LANGDALE: Your second point is that it was apparent that divisions did not always deal with similar quality and safety issues in the same way. What do you say about that?
HIGGINS: What I -- what I meant by that was that the governance structure was essentially a pyramid that was -- relied upon the original indication and escalation of points according to a kind of a system. So it was sort of -- sort of a filter. So really in the case of QSPEC we were reliant upon what was fed into the system at the bottom and how well that was filtered and dealt with as it went through divisional management and up to Executive management and then to board subcommittee and we -- we received minutes
of quite a few of the governance, governance committees within the divisions and sometimes it felt like they were -- they were very kind of adept and very focused for obvious reasons on particularly things like the following up of incidents. But in terms of driving a corporate agenda of improvement in either quality measures or safety, principally this was about quality measures, it sometimes felt like the enthusiasm or the urgency from the board downwards didn't somehow got dissipated as it went down the line and therefore they weren't sort of fully aligned and fully sort of focused on exactly the same things.
LANGDALE: And your final point over the page in your statement: "A failure effectively to engage with all frontline staff, many processes were nurse led and didn't always involve the level of clinician engagement that they seemed to merit." Can you expand on that, please?
HIGGINS: Well, I think that that kind of -- sorry, may I just --
LANGDALE: It's at the top of page 14 of your statement, your third bullet point about governance and management?
HIGGINS: Yes, yes. I think that's -- I think that's because the -- as
I said before a lot of the kind of machinery was nurse led and with a pretty clearly defined management structure. I think amongst the clinicians there was a whole sort of series of teams with their own leaders who -- different personalities sort of responded in different ways to these things. So I don't think it had quite the coherence in terms of the structure or the dissemination of, you know, objectives or shared objectives that was apparent in the -- in the nurse management structure and that's what I was thinking of there.
LANGDALE: Well, I suppose you have your Director of Nursing supporting nurses and you have a Medical Director there to support doctors, presumably. So the structure itself of having those people at the top, if you like, should that have provided some sort of equality around that issue or do you think more was needed?
HIGGINS: I think that -- I think that maybe around the clinicians' side it was more challenging because the nursing side you had the -- the top and sort of divisional management but you also had wards which sort of formed the focus or clinical -- clinical areas, clinics that formed the focus of sort of slightly lower level management units. In the case of the clinicians I think it was, it was quite -- more challenging in that they were not necessarily totally associated with a ward in the same way that most nursing staff would be. And I remember discussions about clinicians having to undertake safari rounds, as they called them, which meant that to address, to actually find or to treat their, their entire list of patients for whom they were responsible they had to go from ward to ward to ward because the bed situation meant they could almost be anywhere in the hospital.
MS LANGDALE: Understood. My Lady, I notice the time.
LADY JUSTICE THIRLWALL: So we will take a 15-minute break and we will start again at a quarter to 12.
(11.29 am)
(A short break)
(11.45 am)
LADY JUSTICE THIRLWALL: Yes.
MS LANGDALE: Mr Higgins, questions now about the actual management of the increased neonatal mortality which you address from paragraph 47 in your statement. If I can deal with QSPEC briefly. Where suspicions about a member of staff were
integral to any concerns, would that have prevented it from being discussed openly in QSPEC?
HIGGINS: Yes, excuse me. Yes, I -- I think it did. The membership was drawn from right across the Trust, different levels and it didn't seem appropriate -- an appropriate forum to discuss something so confidential and sensitive.
LANGDALE: The Inquiry has seen the limited references where they are in the QSPEC meetings. But given that was the position, it was difficult to discuss the paediatricians' concerns in such a broad group, wasn't it?
HIGGINS: Yes. Yes, it was.
LANGDALE: You were having informal conversations you tell us with Ms Kelly at the time before QSPEC and of course we know you were part of the briefing around the extraordinary board meeting at 5 July 2016, you deal with at paragraph 53. Is that when you first became aware at the board meeting briefing about suspicions about a nurse or were you aware of it at another stage via Ms Kelly, can you remember now?
HIGGINS: I can remember. I -- I wasn't aware before, before that date or that time.
LANGDALE: 5 July?
HIGGINS: Yes.
LANGDALE: When you became aware, was Letby mentioned by name or not?
HIGGINS: No.
LANGDALE: So what can you remember about being told at that time?
HIGGINS: I think my first reaction was that the -- the absolute priority was around actions to try and stop it happening again and by that I mean to reduce the number of -- the number of deaths. So the stepping down of the -- of the unit was, was one of the primary things.
LANGDALE: Let's take the meetings in time. I just meant the first conversation when you became aware when someone mentioned it. Did you --
LADY JUSTICE THIRLWALL: You were asked what were you told at the time.
MS LANGDALE: What were you told on 5 July in that Non-Executive meeting with Sir Duncan before the extraordinary board meeting, can you remember what you were told?
HIGGINS: I can't remember specifically what we were told at that time. I mean my -- my recollection of slightly more broadly at that point in time, I was aware that -- that a member of staff was a common factor around, around the incidents and the deaths, but that's what I recollect, nothing much beyond that.
LANGDALE: If you have a look at the notes Ms Fallon made, INQ0102040 page 2, does that help with that Non-Executive meeting? So, as you say, reducing the unit to Level 1. Does that prompt your memory in any way?
HIGGINS: No, I was just trying to read the writing.
LADY JUSTICE THIRLWALL: It's not very easy.
HIGGINS: Yes. I mean, well, that seems to me to be an accurate sort of summary of the headlines around the discussion.
MS LANGDALE: We know -- that can come down -- you missed the meeting in January. You were aware of the RCPCH review and you tell us at paragraph 55 you did receive and read a copy of the RCPCH Report before the end of 2016 but you can't remember the precise date.
HIGGINS: No, I cannot.
LANGDALE: Do you remember if you had the full copy with the green text in it?
HIGGINS: I had a copy, I don't know whether it had any green text.
LANGDALE: Did it say anything about a nurse?
HIGGINS: No, it didn't. The copy that -- the copy that I had was in my evidence outline, there was a copy of the -- the copy for dissemination. Curiously mine did not say on the front "for dissemination".
LANGDALE: So yours must have been the confidential copy, was it?
HIGGINS: No, no, no. No. Mine was the same as the one for dissemination, it just didn't have that title on the front. So not being able to remember precisely when I got it but it was exactly the same copy as the one for dissemination.
LANGDALE: So do you remember reading anything about the nurse or HR processes that might be required to investigate allegations about a nurse, anything like that?
HIGGINS: No, I don't, because the first time I saw the 33-page report as opposed to the 31-page report was when it came in my evidence outline bundle. I hadn't seen that before.
LANGDALE: So you are clear about that, are you, Mr Higgins, that when the Inquiry sent you that copy, you hadn't seen that one before?
HIGGINS: Absolutely.
LANGDALE: Reflecting on that, do you understand why that would be the case or not?
HIGGINS: No.
LANGDALE: You were interviewed by the RCPCH on 2 September 2016, if we can go please to INQ0014605,
page 21. See at the bottom: "Andrew Higgins: longest steady member of the board." See the various notes there, have a read before we turn over the page. If we can go to page 22 and you describe here: "View came from doctors, team itself, so needed an external opinion. I know what it was based on took a bit of time then about [question mark] whether to involve the police. Wanted to try to unpick this as best we could. Accept recommendation independent review is the best way to challenge/corroborate. Need to keep shutters down and contain situation. Not sure where to go next. "DM [that is the interviewer}: legal advice from Trust solicitor? Not initially but discussions have now taken place. Lots connected with HR staff." The reference -- is that you saying : "Need to keep shutters down [plus] contain situation. Not sure where to go next"?
HIGGINS: I think what I was referring to was -- and this may just be my -- my perception, but I sort of felt like it felt a bit like the board was caught in a Catch 22 situation whereby the whole issue about reporting to the police, you needed to have evidence or
something concrete on which to base that -- that reporting to the police and yet we didn't have any. So it was a situation that -- that was really difficult to -- to resolve. And in the meantime, well, it rolled on. The thing about keeping the shutters down I think was just the fact that the thing -- the whole situation was clearly not unrecognised across the Trust, I don't think, so in terms of staff morale and everything else, it clearly was an issue.
LANGDALE: Why was there a need to do that? I understand what you have said about the employee's position and not being able to publicly discuss that or not discussing that in a broad meeting such as QSPEC. But "need to keep the shutters down and contain the situation", what needed containing.
HIGGINS: Well, I don't remember using that language.
LANGDALE: All right.
HIGGINS: So ...
LANGDALE: Standing back now, what did you think needed to be done then and what was done?
HIGGINS: Sorry, at which point?
LANGDALE: What did you think needed to be done at that time? You referred earlier that your first thought was for other babies or children and having to, when you knew there were suspicions how did you -- let's use
manage, contain, who knows, whichever word you prefer. But what did you think needed to be done when you were aware of suspicions and concerns about a nurse harming babies?
HIGGINS: What I -- I mistakenly thought was that the scope of the RCPCH review would provide some clarification, shed some light on the question of the involvement of a member of staff. What I realised subsequently was that the review that I saw was a review of the unit and really addressing what would need to -- not exclusively, but how to, what the Trust would need to do to take the unit back from whichever -- I'm sorry, whichever way round it is from Level 1 to 2 or whether it's vice versa.
LANGDALE: Do you think -- going back to what you said originally about your appointment on QSPEC, in terms of the board now, and the Non-Executive Directors, do you think it would have helped to have a clinically qualified member of the team in terms of the RCPCH review, and then reading Dr Hawdon's review potentially and assessing where she had arrived at, do you think it would have been helpful to have somebody medically qualified?
HIGGINS: Absolutely it would have been, yes.
LANGDALE: The RCPCH Report, you read the parts that you read. What did you glean from that at the time?
HIGGINS: It confirmed I think a number of, a number of the issues that had been highlighted or at least raised in internal reviews, principally around levels of staffing and those kind of issues. It also referred to the -- an element of disconnection between the paediatricians and the Executive management and really calling out the -- the difficulties or the issues that that created. So, as I say, it was -- it was about the unit itself. But I think no massive surprises but a good blueprint to try and resolve that. Unfortunately, it offered no resolution of the other issue.
LANGDALE: In terms of the Dr Hawdon Casenote Review that was undertaken next, did you have a clear understanding about what that involved, what was going to be produced?
HIGGINS: Well, clearly that had come out of the RCPCH review and, again, I mistakenly thought that that was going to be a relatively thorough review of some of the cases that again would shed light on the -- the question of the involvement of a member of staff. And again what I was surprised to find was that Dr Hawdon had effectively sort of said: well, I've done a quick desktop and not covered all the cases either. So I misunderstood what, what that was, what that
was going to cover. I thought it would fill the gap that the RCPCH report had left in my eyes.
LANGDALE: Did you ever ask to see the Dr Hawdon report?
HIGGINS: No, I didn't.
LANGDALE: Did you -- I am not suggesting it was only you who would be responsible for this -- think to ask her to come to the board meeting or any other specialist to come to the board meeting to discuss the medicine involved here?
HIGGINS: No, I didn't.
LANGDALE: You tell us at paragraph 62, this is the meeting around February 2017, you say: "I didn't see a copy of Dr Hawdon's review or her letter dated 29 October. At the time I felt that the board was informed about the concerns of the paediatricians but this was always in the context of them being a difficult group to deal with that had exhibited bad behaviour, a characterisation that came predominantly from Tony Chambers, supported by Ian Harvey." And then you follow that with saying you hadn't had the opportunity of hearing about these concerns directly from the Consultants at this point. But for someone who hadn't had that opportunity, what did you make of bad behaviour or what was that
about?
HIGGINS: I think I -- I took it with a pinch of salt in that what was clearly happening was that there were very fraught discussions and exchanges taking -- taking place and I think one the major targets in the Executive Team was probably the Chief Executive himself, so it didn't surprise me that he may have been the one providing the most emphasis around the bad behaviour of the Consultants. But I just kind of took that as sort of something in the heat of the moment that may or may not be a fair characterisation of what was truly going on.
LANGDALE: You tell us at paragraph 63 that in February 2017 you chaired a QSPEC meeting and Mr Harvey gave a high level view of steps taken following the publication of the RCPCH Report and progress on the recommended in-depth Mortality Reviews. You also say: "The minutes record in that meeting it was agreed that from April the committee would be seeking assurance rather than reassurance and be more challenging." Why was that an issue that had arisen or was being commented upon?
HIGGINS: That -- that comment was, it appears in the same set of minutes quite close to the comments about
neonatal reviews. It wasn't -- it wasn't really driven by the -- by the neonatal reviews but it was --
LANGDALE: Understood.
HIGGINS: It was more a kind of frustration at lack of progress on other issues and things repeatedly coming back with no sort of further sign of resolution. And it was something that I was frustrated about. I know Alison Kelly was as well.
LANGDALE: So the actions and follow-up wasn't as tight as you would like it to be?
HIGGINS: Not in every case, no.
LANGDALE: Why do you think that was? I am not asking about the neonatal unit for a moment, but more widely, why was that?
HIGGINS: I think -- I suppose the obvious answer is that -- is that the pressures that the entire Trust were was under and -- and I think the other aspect of it is that different teams had sort of different micro-cultures and some responded better than others to the prompts or requests or demands that were placed on them.
LANGDALE: You were there at the board meeting when Mr Medland QC was there as well, weren't you, in April --
HIGGINS: Yes.
LANGDALE: -- 2017?
HIGGINS: Yes, I was.
LANGDALE: Tell us how you remember that meeting?
HIGGINS: I think I remember -- I remember it principally as a sort of a bit of an extension of the Catch 22 comment I made before about because we were having -- having gone, Mr Medland having gone through it, then he informed us that there was no evidence that a crime had been committed and yet if legitimate or sort of informed concerns remain, then you should go to the police. So I think that that took it beyond the Catch 22 in that really I think it was an invitation to accept legitimate concerns, no matter where they sat.
LANGDALE: We know subsequent to that meeting what happened and there was indeed a referral to the police in May. When that referral was made, did you think it was going in that direction of travel from early January 2017 or earlier, how soon upon you was that referral to the police as far as you were concerned?
HIGGINS: I think it was, I -- I think throughout from the very start of 2017, when there was quite clearly an unanswered question that was hanging over the Trust and the -- and the events at the neonatal unit I think it was probably only in April when Mr Medland came and
addressed us that I really kind of -- it really crystallised in -- into -- into the kind of, you know, sort of refer to the police or, well, I think it was pushing us very clearly in that direction.
LANGDALE: You told Facere Melius and indeed you tell us you were having conversations before QSPEC and informally with Ms Kelly but if we can go to INQ0003058, the very bottom of page 12, the last three lines and then into the top of page 13, this is your interview, Mr Higgins, and you refer to: "... a lot of discussions with Alison Kelly and that would include, you know, informal things and all the rest of it." If we can just put page 13 on because I have read the bottom of page 12. So page 13, top paragraph only, if that can be enlarged, thank you. "... a lot of things that there was apparent and I think this is probably apparent in the initial meetings, was that it was kind of viewed as pretty inconceivable that any individual could have done this ... I know the nurse, the initial reaction of nursing group was to kind of draw in the ranks to support and that maybe, you know, set the tone as to how some of this got reported. But perhaps the level of which that
got reported, because the initial feeling was that if you sort of think: well, how can this possibly be the case, then you want to treat the individual fairly. And recognising that if this were an unfounded acquisition then, you know, something that could absolutely destroy one person's life. If you do that then, you know, you don't want to do that unthinkingly. So the fact that the impact, you know, there was a meeting at which the impact statement got the read out in that context I don't find sort of massively shocking, just surprising really, why do you find it different?" So just first of all dealing with that comment "pretty inconceivable any individual could have done this", is that a conversation that you had with Ms Kelly and more broadly, how difficult it was to think that that could have occurred?
HIGGINS: I think probably the first thing I am doing there is expressing what was in my mind because to be frank, I did find it pretty inconceivable that any -- any individual could have done this. The discussions with -- with Alison Kelly I think were kind of more about kind of where things were up to and from that, I certainly, I certainly got a clear sense of the, the feeling amongst the -- the nursing community that they were kind of being singled out.
LANGDALE: And singled out in what way and for what?
HIGGINS: By -- by the paediatricians. I suppose the implication would be that they were some kind of scapegoat for something that was unexplained. At that point nobody knew for sure what -- what -- what the root of all of this was.
LANGDALE: You do make direct reference there that if this were an unfounded accusation as opposed to a mistaken accusation, "unfounded" you say there. Was that a phrase that anyone used to you that this was an unfounded accusation?
HIGGINS: No, that's my language.
LANGDALE: Right.
HIGGINS: It's more a point of principle than anything else. But no, that's me.
LANGDALE: So in terms of your understanding at the time, did you, as far as you were aware of them, consider the concerns genuine of the paediatricians or not or did you not were you not able to form a view about that because you didn't know enough?
HIGGINS: I couldn't really form a view on that and that's where the -- the fact that I had a -- because of meetings that I had or hadn't attended I sort of had a personal disconnect. Some -- some of the direct interaction I hadn't been part of. I wasn't able to say one way or the other.
LANGDALE: That can come down, thank you. You tell us at paragraph 66 at the extraordinary board meeting on 2 May you were advised by Mr Harvey the next step was to consider a police investigation. We know how that followed. Then at the top of the page, you say: "I personally never felt that there was any implication that the board should avoid bringing in the police to protect the Trust's reputation and I never heard anyone voice such a thought." Can you just set out for us how you see this issue of protecting reputation and whether if at all it impacted around this time and with this decision?
HIGGINS: From my point of view I never thought it was an issue or should be an issue, because in the list of priorities it was right down at the bottom. The priority was to -- was to resolve -- was to get an answer to -- to what had gone on but equally, I know that some of the documentation talks about sort of represent -- protecting reputation or whatever words are used, but I never sensed amongst any of my colleagues certainly round the board table that -- that that was kind of a serious or an overriding consideration. The -- the fact of the reputation was more about
the publicity and the impact that would have upon the families and upon the staff across the Trust and I think those were the key elements of that.
LANGDALE: Indeed you say that was a general consensus that police involvement may be traumatic, it was families and staff, and it was about being certain it was the right thing to do
HIGGINS: Yes, thinking that you had to have been able to have some kind of evidence that -- that you -- on which to base your -- your trip to the police.
LANGDALE: What do you say Mr Cross's contribution was on the issue of a police investigation?
HIGGINS: Well, I think because he was somebody with -- he was the person with the most experience of such things around the board table, so I think that he -- well, certainly I listened to him in terms of the potential impact of the police coming in and the kind of sort of - "disruption" isn't quite the right word but, but really the -- the fact that really it would sort of mean all bets were off in terms of, in terms of what had been going on to date.
LANGDALE: More broadly, did you think, Mr Higgins, that you were adequately briefed by the Executives in respect of the decisions that were being taken for the RCPCH Report, for Dr Hawdon and then when you ultimately
referred to the police?
HIGGINS: There are clearly some things that I misunderstood or got wrong around those -- those reviews. Whether that is because I was misled or because I didn't ask the right questions is difficult to say. But I feel that we all had an opportunity to ask more questions and I didn't.
LANGDALE: Indeed you weren't at that meeting on January 10. If you miss a meeting, do you get notes or minutes or catch up with your colleagues informally? How does that work?
HIGGINS: Well, I can't actually remember when I got the minutes of that meeting, but I did have copies that I had retained and I had a bundle of minutes that came quite some time after as a kind of a set which included those of the 10 January which seemed to indicate that possibly I -- the minutes may not have come out or I may not have got them until some time in maybe 2017.
LANGDALE: You weren't at the meeting on 10 January where the apology offered to Letby was reported to the board and I don't know if you ever read the statement from Letby about her described experience to the board. Did you see that statement or anything from her?
HIGGINS: I have seen it because it was in some of the
evidence bundles.
LANGDALE: So you saw that via the Inquiry?
HIGGINS: Yes, yes.
LANGDALE: At the time, what did you understand was happening in terms of Consultants being required to apologise or mediate with Letby, were you sighted on any of that?
HIGGINS: I think I was sighted after the event mainly because I wasn't at the 10 January meeting and when I kind of was able to re-engage with the situation as it currently stood later that month, or early February, I think it had almost moved on from there because clearly the request or demand for an apology had clearly caused an awful lot of consternation.
LANGDALE: You offer your reflections and one of them early on at paragraph 77: "One of the strongest conclusions I have drawn is that the police should have been involved earlier. For too long the Trust treated investigations into the increase in death too much like those in other Mortality or Serious Incident Reviews." How do you think that situation was arrived at?
HIGGINS: I think -- I think because there were laid down sort of procedures around investigating mortality right across the hospital, then the -- the hospital and the board, the board kind of reverted to some reliance on those things. But in going through all of this, the -- the thing that struck me above all else was that there were no skills or experience to investigate potential crime and there was an element that was missing and that's why I say I think my reflection on this is that had we gone to the police back in July 2016, then the whole thing might have come to some kind of resolution far quicker and in a better way. I think we -- it never struck me at the time but I think that we were -- we were trying to answer questions that we weren't equipped to answer.
LANGDALE: You also say: "I think the basic mistake was that each group tried to come up with definitive answers before escalating further up the line." So you mean -- tell us what you mean?
HIGGINS: Some of this comes back to kind of the pyramid and the filter bit whereby -- because the review is conducted in late 2015 around this and then Thematic Reviews in early 2016, all of which proved inconclusive in terms of getting a definitive answer around what had been happening and I think we kind of repeated that as it went up -- up the -- up the chain. Everybody had a crack at finding what the answer
was but nobody succeeded, nobody could. And really that proved to be I think a big delayer in terms of taking decisive action and resolving things a lot quicker.
LANGDALE: You say at paragraph 78: "I think concerns about the neonatal data should have been raised earlier." You tell us when it was reviewed in QSPEC in January 15, neonatal deaths and stillbirths, it was presented to QSPEC, the increase in deaths being described as perceived. What do you say about that now?
HIGGINS: I think that comment came from the fact that QSPEC really received two principal papers around what had -- the mortality trend in the unit, the first one was the one I am referring to there, the second one came in I think July or August 2016 and showed some of the charts. The charts were -- without any fancy statistical review were stark. And I think they would have been had the data to the end of 2015 been included within that first report and I think at that point I think I said of that first report that no red flags were -- were issued.
LANGDALE: That is Ms Fogarty's report, that review?
HIGGINS: Well, it was the one that was headed up by Dr Brigham, I think.
LANGDALE: Yes, that one.
HIGGINS: Yes.
LANGDALE: Who provided the second report?
HIGGINS: That was the -- it was done through the Risk Department, so it was done through Ruth Millward was the person that, that headed that up at the time. So it was -- and it was I think it was Alison Kelly and Ruth Millward had signed it off, so to speak, it was their names on the report but my understanding was that they were using data and information originated from within the unit itself.
LANGDALE: You say: "A more in-depth and rigorous challenge might have brought issues to the surface quicker." What are you thinking there?
HIGGINS: Well, again, if -- if the -- if the first review had been -- perhaps presented things in a slightly different way, rather than a perceived increase in mortality to produce the actual statistics, as I say, in a chart which was relatively stark, I think as committee members we should have been on more notice that, that, you know, this wasn't -- wasn't a perception. These were actual human lives that --
LANGDALE: You also say at paragraph 79 that: "Once issues started to be considered by the board
in extraordinary private meetings, information about developments was sometimes communicated through informal discussions and briefings rather than formal meetings." Sir Duncan has told us he would meet regularly with Execs. Were you having informal discussions on a regular basis as well?
HIGGINS: I think these were because obviously there were lots of gatherings of different natures so there were lots of discussions going on but it seemed to me or looking back on this, I think that the -- it would have been better had the board recognised if -- if the public meetings were not -- were not the best forum to discuss these things, if QSPEC was not the best forum, then we should have established one more formally that could have exercised oversight and involvement -- oversight of what was going on and progress being made and participating in decision-making. And I -- I kind of feel that as -- either as senior independent director or as chair of QSPEC I should have -- I should have pressed that but again it was something I didn't.
LANGDALE: You say: "I think it's therefore difficult to be sure if all board members always knew the same things at the same time." That can influence a dynamic on a board, can't it, who feels confident to speak up --
HIGGINS: Yes, it can.
LANGDALE: -- and give an opinion if they think they haven't got all the information a colleague has?
HIGGINS: Yes, it's an issue.
LANGDALE: Did you find naturally there were more dominant voices around the board? Sometimes that's the case even when people have the same information. But when there's a disparity of information, that can be applicable?
HIGGINS: Around this subject or in fact around almost any subject, I don't think the dynamic around the board table was like that. It was respectful and it felt like a kind of, you know, a gathering of -- of equals. Voices were not suppressed, certainly not that I could see.
LANGDALE: And you say: "I think it is also apparent that the depiction the paediatric Consultants as a badly behaved bunch of troublemakers was a very one-sided view of what was going on. "Taking all these factors together I think that more regular formal meetings of the board in private from July 2016 onwards would have presented greater
opportunity to understand the neonatal issues more deeply, to challenge more closely progress made on their resolution and to examine more critically the handling of the situation by Executive management."
HIGGINS: Yes.
LANGDALE: You do say at paragraph 87 -- finally from me, Mr Higgins, you say this: "What I do see is a combination of imperfect structures, systems, people and actions that contributed to a series of tragic outcomes. I am very uncomfortable with singling out individuals as prime enablers of Letby's crime. I believe that any of us who were involved in the Countess' handling of events in any way share a collective responsibility for what happened. This responsibility is down to understandable human failings, not malign intent." Would you like to expand on that? Not the last sentence --
HIGGINS: No.
LANGDALE: -- but the broader picture that you are commenting on there?
HIGGINS: Well, I think you have directed me to some of the things that I thought we should have done, some of the things that I personally should have done. And I think there were omissions along the way,
misunderstandings, certainly on my part, and had we formalised that much more, I am not saying it would definitely have avoided them but it might have provided a forum in which those misunderstandings or, you know, misconceptions could have been dispelled.
MS LANGDALE: Thank you, Mr Higgins. There are some more questions, my Lady from Mr Jamieson.
Questions by MR JAMIESON
MR JAMIESON: My Lady, thank you. Mr Higgins, good afternoon.
HIGGINS: Good afternoon.
JAMIESON: My name is Alex Jamieson, I ask you some questions on behalf of the Families in this case. There are three short topics that I would like your assistance with, please.
HIGGINS: Sure.
JAMIESON: For the first one, Mrs Killingback, please can we have on the screen INQ0009246. It's going to be the NHS Foundation Code of Governance from 2014 and I would really like your assistance with the essence of the NED role, please. Can we go to page 13. Although it's the 13th page, it is in fact the first substantive page of this document, all that was in front of it was introduction. Can you see in the fifth paragraph down:
"As part of their role as members of the unitary board, Non-Executive Directors should constructively challenge and help promote and help develop proposals on strategy."
HIGGINS: (Nods)
JAMIESON: This is the first mention of NEDs in this document and this is the distillation of their role and can we see that "constructive challenge" is the first responsibility that is mentioned there.
HIGGINS: (Nods)
JAMIESON: Thank you. Just to drop through and to illustrate what that means, can we next look very briefly at page 17. We simply note that this is the section that is dealing with leadership and what that means and there are then a number of subparagraphs. If we go to 18, over the page, please, can we see that at the third paragraph down: "All Directors, Executives and Non-Executives have a responsibility to constructively challenge during board discussions and help develop proposals on priorities, risk mitigations values and standards." So we are familiar with that, but underneath: A.1.M. The second sentence: "In particular, NEDs should scrutinise the performance of Executives, receive adequate information and monitor the reporting of performance." Then this sentence: "They should satisfy themselves as to the integrity of, amongst other things, clinical information." Is that something that you appreciated at the time that you had a responsibility to satisfy yourself that the clinical information that you were being presented with had integrity?
HIGGINS: Yes, yes, it was.
JAMIESON: Thank you. Then the final aspect of this document, please, to look at is again what that means. If we go to page 31, very briefly, we are on to the sub heading "Information and support" and what that tells us at 5A is that: "The Board of Directors should be supplied in a timely manner with relevant information in a form ... of a quality appropriate to enable them to discharge their functions". Over the page again, the last reference to this document, please, in particular the second paragraph: B.5.2: "The Board of Directors and in particular NEDs may reasonably wish to challenge assurance it has received from Executive Management. They need not seek to appoint a relevant adviser for each and every subject
area, although they should, wherever possible, ensure that they have sufficient information and understanding to enable challenge and to take decisions on an informed basis." The paragraph underneath we will just note in passing, I won't read it but it makes provision for the board to obtain independent advice on a variety of subjects to allow them to do that. So that can come down, thank you, Mrs Killingback. Drawing it all together, is what is required not just constructive challenge but independently informed critical challenge? Not just critical challenge but you yourself have to have the independent information to allow you to perform that function?
HIGGINS: I mean, independently sourced and derived?
JAMIESON: When I say "independent" I mean you yourself have the information that allows you to perform that function wherever you derive it from?
HIGGINS: Yes, I think certainly -- certainly if I can, if as a Non-Executive you think that the board information excludes something which is important to your assessment of performance or -- or anything else, then yes, you should -- you should call that out. So yes.
JAMIESON: Yes. But if a subject area being discussed is
one in which you yourself hold no information or understanding, beyond what the Executive is providing to you, how will you challenge what they say?
HIGGINS: I think through discussion and drilling down into the -- into the subject that you are -- you are looking at. I'm not -- I am not quite sure whether this is a question about how an accountant can question medical matters or something else.
JAMIESON: That is the context but really I am dealing with the generality and if I can borrow a phrase that you have used in this context. If you rely on an individual in this case, I think you have said Alison Kelly --
HIGGINS: Yes.
JAMIESON: -- to be your eyes and ears, on a particular subject matter, all of the information that you receive from that individual will come with their views, with their biases, whether conscious or unconscious?
HIGGINS: I see, I see.
JAMIESON: How do you challenge that?
HIGGINS: Well, I think one way you do it is that if there is something that you feel unsure about or maybe is so important then -- then you corroborate it through different sources.
JAMIESON: Yes.
HIGGINS: So you seek to validate it by reference to other people. So when I talked about the Director of Nursing in that way, I didn't mean to suggest that she was the sole and only source of information. In fact, far from it.
JAMIESON: Thank you. May I move to the second topic, please, and it's the culture and the tone of the Countess of Chester?
HIGGINS: Yes.
JAMIESON: You have been asked a number of questions about this, I won't repeat them but I did just want to see if there was a line that could be drawn between two sets of observations that you have made. So you have it, it's page 11 and page 12 of your statement, paragraph 29, you have given us some short pen portraits of the senior Executives and my learned friend Ms Langdale King's Counsel has taken you through that. May I just pick out a couple of phrases that you have used in relation to Tony Chambers, his keenness to "manage the message" and your observation that he had a reluctance to identify managerial failure as a cause of poor performance. Then secondly in relation to Stephen Cross, you observe that he managed his relationships with the Non-Executives and prevented hares running and would dilute demands for action. Could I draw those together as a common theme, as a preoccupation with presentation over the substance of an issue, would that be a fair summary?
HIGGINS: I'm not sure I would characterise it in -- in that way. I think the comments about the Chief Executive were really more about avoiding the questions that didn't have any ready or full answers.
JAMIESON: Sorry, I missed the second half of that. Avoiding the questions that ...
HIGGINS: That didn't have any ready or full answers, so knowing that it was not a complete answer to the question that was put.
JAMIESON: Yes.
HIGGINS: I think in the question of Mr Cross, that comes back to -- I mean, as I said before that a lot of that was my experience on the Audit Committee about not wanting to impose a whole raft of further actions on top of those that were already sort of in the hands of the Executive or the people who were working for them.
JAMIESON: Focusing for a moment just on what you said about Tony Chambers and avoiding the part of the question to which there is no answer. I did wonder if there was a line to be drawn between that and the
observation that you have been taken to already, second half of your paragraph 30, if you wouldn't mind just looking at that, and the observation that your NEDs had made or your Non-Executive colleagues had made that the Countess had an optimism bias that suppressed problems and exaggerated successes. That does seem very similar to what you have observed in Mr Chambers; avoiding the problems to which there is no answer and focusing on the solutions that have been achieved, even if to some different issue?
HIGGINS: Yes, I -- I can see exactly why you link the two and I would agree that there is a linkage. I am not -- I don't think it was avoidance of problems, it was inability to solve them which is not quite the same thing but yes, I agree there is a link between the two.
JAMIESON: But in the light of all of your experience and the reflections since, can you see the obvious and present danger in that approach because if there is we are dealing with a hospital where the business is caring for the sick and the saving of lives. If there is a problem which -- and if the approach is to play down concerns that can't be met, and to play up successes, then subsisting dangers could be masked and ignored.
HIGGINS: I see your point. But my experience, my view of -- of all my colleagues around the board table was
that you could make excuses as to why your deficit was bigger than it was planned to be or should have been or whatever, to an extent you could make excuses about why some targets in the board report were not being met. But I never sensed that any of them would say: well, this is a matter of patient safety and, you know, extreme matter of patient safety and therefore I am just going to ignore it. I never sensed that anybody had that attitude towards that.
JAMIESON: But if that's the culture, if that is the rhythm when issues of extreme patient safety such as we are dealing with here, then the muscle memory of the organisation will be to do the same, won't it?
HIGGINS: You may be right. MR JAMIESON: Yes. Thank you very much, my Lady, those are all my questions. I should say there were three topics but I am conscious that I have had my time and that can be dealt with in submissions.
Questions by LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: Thank you very much, Mr Jamieson. I have just one question if I may, Mr Higgins. Can we go to INQ0003058, page 12-13. We have looked at it already. There was just one thing I wanted
to pick up with you, if I have got the right page reference. Yes. So you have been asked a bit about the top of page 13 when you are speaking to Darren Thorne and you are talking in particular about the initial meetings. It was kind of viewed as pretty inconceivable that any individual could have done this and you have acknowledged that was your view. We know, we have heard from Alison Kelly, that it was her view that one of her nurses could have done this. Then when you were giving your evidence earlier you were referring to the nurses generally feeling scapegoated. But in your -- in what you were saying here you refer to a single nurse and I just wondered if it was a slip of the tongue or whether there was not only the initial reaction of the nursing group to drawing the ranks to support but whether they also felt as a group the suggestion being made was one that reflected on all of them?
HIGGINS: No, I -- I think -- I think really what I -- what I meant to convey was the first, that they were sort of drawing in to support.
LADY JUSTICE THIRLWALL: Rallying round.
HIGGINS: Rather than saying this was a slight on the nursing community as a whole.
LADY JUSTICE THIRLWALL: Thank you, that is clear. Then you say this as sort of an observation: "... that maybe ... set the tone as to how some of this got reported." I just wanted to explore that. Are you saying there that because people, and here the nurses, were supporting the individual that would have affected the way information was being passed on, or the way it was being reported; in other words, this can't be true? Is that what you are getting at?
HIGGINS: I think it certainly influenced a view that this -- this can't be true because there was a body of people who were saying "this can't be true". So I think that and the whole grievance process gave voice to that view and sort of muted the Consultants, I think.
LADY JUSTICE THIRLWALL: Yes. Well, thank you. Anybody want to ask anything else? No. Well, thank you very much indeed, Mr Higgins, for coming to give your evidence and you are now free to go.
HIGGINS: Thank you.
MS LANGDALE: My Lady, Mr Oliver is next and I think he is ready to give evidence.
LADY JUSTICE THIRLWALL: Very good, we will just let Mr Higgins disappear from the scene and then we will take Mr Oliver.
MR GEORGE EDWIN OLIVER (sworn)
Questions by MS BROWN
MS BROWN: Could you please give your name?
OLIVER: My full name is George Edwin Oliver.
BROWN: You have provided a witness statement to the Inquiry dated 5 June 2024 and I think there is a correction you wish to make at paragraph 102 regarding the cite of the Terms of Reference and the RCPCH Report cite which I will ask you about when we get to that stage in the evidence. But save from that paragraph, is that statement true, to the best of your knowledge and belief?
OLIVER: That's correct.
BROWN: In terms of your background, Mr Oliver, you have a BSc in electrical engineering, your career has been predominantly in retail including as regional manager for Marks & Spencer Merseyside, between 1995 and 2016 you were involved and for periods chair of the Ronald McDonald house at Alder Hey Children's Hospital which provided accommodation for families and children being treated there and I believe from 2006 you were appointed as a Non-Executive Director at Alder Hey?
OLIVER: That's correct.
BROWN: You left that post in 2013?
OLIVER: Yes.
BROWN: In 2013 you were appointed as a Non-Executive Director at the Countess of Chester. So by that stage you had already had seven years' experience as a Non-Executive Director and also that experience being in a Hospital Trust?
OLIVER: That's correct.
BROWN: As well as a board member, you chaired the People and Operational Development Committee, you were chairman of the Charitable Funds Committee and you were a member of the Audit Committee?
OLIVER: Correct.
BROWN: In terms of the time commitment, is it correct that your time commitment as a Non-Executive Director was three days a month?
OLIVER: Yes.
BROWN: And did you consider that was adequate to fulfil not only your membership of the board but those other committee commitments?
OLIVER: Yes.
BROWN: When did you cease to be a Non-Executive Director at the Countess of Chester?
OLIVER: In August 2019.
BROWN: Just dealing with your role as chair of the Charitable Fund Committee, you were involved I think at
time with the Babygrow Appeal?
OLIVER: Yes.
BROWN: Were you aware at the time that Lucy Letby was the face of the campaign and her face appeared on some of the posters, I believe?
OLIVER: I was not aware that she was labelled as the face of the Babygrow Appeal. I was aware that there were photographs, certainly in the charity office, of Nurse Letby holding a very small babygrow?
BROWN: And --
OLIVER: But there was no name label to that particular photograph.
BROWN: Were you aware of that when you were, as a board member, dealing with the issues and did that cause any consternation, was it the subject of any comment?
OLIVER: No, I was aware and no.
BROWN: So it wasn't until after -- after these matters that you became aware of that?
OLIVER: Yes.
BROWN: It had no bearing on how you dealt with these matters?
OLIVER: No.
BROWN: Thank you. Just dealing with training, Mr Oliver. You deal with this in paragraph 26 of your statement and you recall being trained in safeguarding and in speaking up at Alder Hey. Did you receive any training to this effect when you were at the Countess of Chester?
OLIVER: I think wherever -- excuse me, I didn't receive any outside of the hospital training, no induction training at the Countess. I had had an awful lot of experience of training in the past, not only with Alder Hey but in my time with McDonald's and even Chamber of Commerce and Liverpool City Council. And so at the time in the Countess, I think we built in -- a formal board training session was billed for, according to the code, I think it was about every three years.
BROWN: So when you arrived at the Countess of Chester to commence your role as the NED there, was there an initiation programme or a programme of training that you would have gone through or was the fact that you had already received this training at Alder Hey meant that you didn't go through it?
OLIVER: I think I had already received an awful lot of training before and I don't recollect going to any official training when I got to the Countess.
BROWN: Is that -- just to be clear -- because it wasn't offered to you or because you didn't see the need
to attend it?
OLIVER: I wouldn't have, if it had been there I wouldn't have turned it down. But I am not clear as to whether it was offered or possibly whether I felt having just come from Alder Hey, a specialised children's hospital and the McDonald house with all the things that you are trained there via McDonald's, you know, I didn't feel that I was -- I was missing out.
BROWN: In terms of the policies, the Countess of Chester had policies, their own policies regarding safeguarding and Speak Up. Were you aware they had policies, these policies?
OLIVER: Yes, they would have come through the people in OD committee.
BROWN: Were you familiar with their contents at the time?
OLIVER: Yes.
BROWN: In terms of the role of NED you deal with this at paragraph 50 of your statement, and you recall an induction meeting about the role of NED. Is that induction meeting you are referring to one that happened at the Countess of Chester or is that a previous occasion?
OLIVER: It was actually the very first one, 13 years, right at the very beginning.
BROWN: Sorry, right at the beginning of the time when you started at the Countess of Chester?
OLIVER: No, when I joined the board at Alder Hey.
BROWN: Alder Hey, so 2006?
OLIVER: Yes, it was in Leeds, I remember it vividly.
BROWN: In terms of your understanding when you got to the Countess of Chester about your role and the role you played as a Non-Executive Director, what was your understanding of the role during your period at the Countess of Chester?
OLIVER: My role is -- was same as what we have been doing for over -- over the years. It was working very closely with the Executive Team. The word "challenge" yet again came up and I think I tended to look at -- by "challenge" it can imply conflict, it can imply different things. At the first induction course I went to it was vividly put over -- the word "challenge" was aggressively put to the gathered group that were there of inductees to the role of Non-Exec Director and I tended to ensure that I think that I had a good working relationship with the Executive Teams that I have worked with, both at Alder Hey and the Countess and my view has always been in my management style is that the challenge needs to be constructive and without being too confrontational.
BROWN: In relation to the NHS Foundation Trust Code Governance, were you aware of that and aware of the fact that that meant you as a board member were responsible for ensuring the quality and safety of the healthcare services?
OLIVER: Yes.
BROWN: That policy also speaks about constructively challenging and scrutinising the performance of the Executive. Were you aware that that was your role?
OLIVER: Yes.
BROWN: If we can turn now to the events from July 2016. On 5 July 2016 there was a public board meeting that you attended and prior to this, there was a private NEDs meeting. We know that from a note that one of your fellow NEDs Ross Fallon kept. Is that a meeting that you can recall?
OLIVER: The content, no. But I can remember that there was the format of these pre-board or the board meetings was that where possible the Non-Execs would meet with the chair, ideally about an hour before, not necessarily with a pre-arranged agenda, but with a case I had brought some of that format from my time at Alder Hey, where for example the Chair would call an unofficial meeting before a board meeting and sometimes would lead with the: right, now you have got the opportunity, what's keeping you awake at night?
BROWN: On --
OLIVER: I am just saying -- I am not saying Sir Duncan said that but it was the previous chair at Alder Hey that used to introduce that and I looked and I mentioned it to Sir Duncan is that maybe we should have these meetings as they weren't always able to be had because of time restraints.
BROWN: The meeting on 5 July, that was an occasion on which it appears from the note that certainly the neonatal unit was discussed and there was mention of unexplained and unexpected deaths, that there was to be an external review and significantly that the unit was to be downgraded. Do you remember being informed of that?
OLIVER: Yes.
BROWN: So you can't recall the meeting itself but you do recall that at some point you became aware of that?
OLIVER: Yes.
BROWN: At that time, when you became aware of those issues, were you also made aware of the fact that there was a concern about a nurse being involved?
OLIVER: I am not really sure as to when the subject actually came round to a particular nurse was involved and so on. I think we -- we were informed at that time
and again I don't recollect really when fully that we were actually told a nurse, it is suspected a nurse could be involved.
BROWN: The public board meeting that you did attend on 5 July, there was no reference in that to the downgrading of the unit or of neonatal mortality but following that meeting, there was an extraordinary board meeting that was set up and was held on 14 July and that I think was a board meeting that you weren't able to attend?
OLIVER: Correct.
BROWN: Do you recall receiving the minutes of this meeting and just really particularly as to whether it was by receipt of the minutes that that informed you either of the downgrading of the unit or of the issue with the nurse or do you think you were informed of those matters orally?
OLIVER: I think I was informed orally.
BROWN: Do you recall ever receiving the minutes of this meeting?
OLIVER: No.
BROWN: If we can move on, then, to 10 January. In the intervening period, between July and January, can you recall at any point being given an update as to the review that was being -- going on by the RCPCH?
OLIVER: No.
BROWN: At that meeting, on 10 January, the RCPCH report was discussed. You had not been at the meeting of 14 July and I think your evidence is that you hadn't seen the draft of the Terms of Reference or indeed the final Terms of Reference of the RCPCH?
OLIVER: That is correct.
BROWN: Did you nevertheless have an understanding what have the RCPCH were reviewing?
OLIVER: In -- in broad terms, yes. I suppose it's -- it's looking at it, I could possibly have expected it to be looking at a bit more detail and trying to move things on to a different level of understanding as to what -- what had happened and the next, and with a view to the next way forward. It's only afterwards when I have seen the Terms of Reference is that the report basically does what the Terms of Reference asked for and it does nothing more.
BROWN: So from that, do I understand that -- did you understand that the RCPCH was going to give an answer as to whether the nurse was or was not responsible for the deaths? Was that your understanding?
OLIVER: I'm not sure whether I expected them to do that. But once I had seen the Terms of Reference it didn't actually ask for that, it --
BROWN: When do you think you did see the Terms of Reference?
OLIVER: Just recently.
BROWN: In relation to the report itself, the report of the RCPCH was being discussed at the January meeting. Do you recall at what point or whether you received the RCPCH report?
OLIVER: In time for the meeting and then we were not allowed to keep a copy of it because of HR restraints.
BROWN: So we will hear from her but my understanding is Ms Fallon's evidence is that you were given a copy of the report at this meeting, allowed to read it at the meeting and then not take it away. Is that your recollection as well?
OLIVER: I think so, yes. I -- I do not remember coming out of the meeting, I don't recollect that with a copy of that report.
BROWN: Do you recollect whether it was the copy of a report that mentioned the nurse in it or whether it was the slightly shorter version that didn't have that passage in, or can you not now recall?
OLIVER: I'm afraid I can't remember that, sorry.
BROWN: Just looking at that meeting, Mr Harvey outlined that the report had been received from the RCPCH and then if we could put up INQ0003237, these are the minutes of that meeting and if we can go to page 2. At the top there, what Mr Harvey is setting out is the RCPCH have reported and they have suggested that there is a further review done of the individual cases and that was commissioned by -- from Dr Hawdon and that review had been completed and we see there three lines down: review not yet circulated. We have seen and we have gone through the point that you understood your position was to challenge as a NED. Were you in a position to challenge having not seen that review?
OLIVER: Probably not to the in-depth amount that it -- it required. Maybe this was a time that like at these meetings is that when the challenge could have been more explicit than it may have been. But again I just looked at the report and I wasn't sure how it actually moved us as a board to the next stage.
BROWN: We will just see at the bottom of that paragraph it says, this is Mr Harvey speaking: "The case reviews very much reinforce what is in the review when it comes to issues of leadership, escalation, timely intervention and does not highlight any single individual." Did you accept that summary at the time?
OLIVER: Yes.
BROWN: Mr Chambers then we see goes on to say that: "Once we have the final four reviews from Alder Hey we can draw a line under this first part of the review itself." Again, did you understand, Mr Oliver, that at this stage the investigations were still incomplete?
OLIVER: Yes. As I said, I wasn't clear at that time as to how on reflection how that moved us as a board on to the next stage.
BROWN: Given that those investigations were still incomplete and that you hadn't seen Jane Hawdon's report, did that mean that you were concerned that what was being proposed at the time was for the nurse to be returned to the ward?
OLIVER: I don't think I was -- I was concerned about the discussion or the conversations that were coming about the nurse going back to the ward and so on. What I thought the report hadn't shown was how would that be actually achieved and I wasn't clear with all that had gone on before that and so on, and the report didn't tackle it because it wasn't asked to in the Terms of Reference. My main thing is as an output as a thing to achieve I wasn't clear as to how that actually was going to be achieved.
BROWN: Because the situation at this stage is that
you have seen, as I understand it, the RCPCH, you have read that in the meeting. You haven't seen the report of Dr Hawdon, you are aware that the investigation is incomplete?
OLIVER: Yes.
BROWN: And you are aware at this stage of the allegations that have been made by the Consultants or the concerns the Consultants have that Letby may be involved in deliberately harming patients?
OLIVER: Yes.
BROWN: Really it's understanding why on that information you felt able to support the proposition that the nurse should return to the ward at that stage. You know of course she didn't in fact return but that was the decision of the board at this stage.
OLIVER: I didn't feel that that was the -- the decision of the board at that stage that there was a -- it was clear-cut and certain that Letby would return to the neonatal unit. And again my, my personal thoughts and at the time were with all that had gone on and the comments that had been made and the relationship breakdowns between the Consultants and some of the nurses, and senior team, I just, at that time, was thinking to myself: how can this actually be achieved?
BROWN: In relation to the Consultants' action, we will see if we can go to page 4 of that, the minutes, that Mr Chambers referred to the claim: "The unsubstantiated claim the issue was down to one individual's actions and behaviours. We did explore supervised practice of the individual. This was not supported by clinical colleagues. The individual submitted a grievance." And then there's the reading out of a statement from the nurse and discussion of the grievance. Were you concerned, given your knowledge of the Speak Up policy that at this stage it appeared that the Consultants who had raised the concerns were in fact being asked to apologise and then mediate in a way that was contrary to the Speak Up policy?
OLIVER: Again it's, it's -- I'm afraid, it's the same reply, is that I read the part that the Consultants were being asked to apologise and mediate the return to the unit. And, again, and I hadn't progressed that in my own mind or talked to anybody else about it, is that I did think with all that had gone on and been said, I wouldn't -- I was not aware of the plan of action to do those two things: to get the apology and to get the nurse back on to the unit.
BROWN: If we can just look at now document INQ0003518. So this document that's going to come up now, Mr Oliver, this is the report, the very short report that Mr Harvey put before the board on 10 January and it set out that there had been a report by the RCPCH. It doesn't make clear that there were concerns or an inability to get to the bottom of the unexpected and unexplained deaths and therefore Jane Hawdon was instructed. But it does, if we go over the page to page 2, ask the Board to make a number of recommendations. The first question is do you consider that you were being given the correct information at this stage to make the decisions that we're going to look about in relation to returning the staff member to work?
OLIVER: No.
BROWN: If we look down there at point c, what the board is asked to do is to support the Executive in assisting the staff member's return to work on the neonatal unit. In relation to that, the investigations were not complete and you hadn't seen Dr Hawdon's report and only briefly seen the RCPCH report. Why at that point, Mr Oliver, were the board not challenging such a significant decision -- putting a nurse that the Consultants were concerned about back
on the ward -- in the absence of really having all the information before you to test that?
OLIVER: I can only say it -- it's something that we look back on and it should have been challenged more than it was and because it was a clear point at that time, that as I said the -- the view of saying she should return or she should go back to the unit and so on, but it was how that was going to be achieved and that was not challenged openly at the time.
BROWN: I think at the meeting, we don't need to go back to it, I can read you the section, at that meeting on 10 January, you are quoted as saying: "We are where we are. We took the decision for the right reasons. The next stage is critical not just for the reputation of the Trust but also for the unit and the individual." Can you just explain what you meant by that if you're able to recall?
OLIVER: I have said in my statement, excuse me, that I couldn't actually remember saying it. If I did say it --
BROWN: It's INQ0003237, page 5, if it would be helpful to have it in front of you. Sorry to interrupt.
OLIVER: If I did say it, it could well have been out of a small amount of frustration that we weren't moving
the whole process of where we were trying to get to with this event.
BROWN: Do you recall the decision you are referring to? Is that the decision to take Letby off the ward, that we took that decision?
OLIVER: Yes.
BROWN: Is that what you are referring to?
OLIVER: Yes.
BROWN: When you say: "The next stage is critical, not just for the reputation of the Trust but also for the unit and the individual." What do you think your concerns were about the next stage?
OLIVER: Well, the next stage would be contacting the police.
BROWN: But at that meeting, was it your understanding that the reports had said that there wasn't --
OLIVER: Yes.
BROWN: -- there it does not highlight any single individual, that it was an unsubstantiated explanation that there was a causal link to the individual, that that was what Mr Harvey and Mr Chambers were saying to you. Were you accepting that was the position at that stage?
OLIVER: Yes, and at every review it did keep coming back to the board irrespective of the fact that the paediatricians continued to make the same statements and so on. So at some stage, the board had made decisions on the information that it had at that time. I personally believe that they were the right decisions. Whether, on reflection, things could have been done slightly differently, in a different way, I'm not really sure. But it was -- you know, the decisions were taken. So it was a case of whether it was a off-the-cuff comment that was made in the room that, "we are where we are and we've made these decisions for the right reasons we think." When --
BROWN: So perhaps if I could summarise, Mr Oliver. You felt that the decision to take Letby off the ward had been the right one?
OLIVER: Yes.
BROWN: But at that meeting, 10 January, what you understood you were being told by the Executive was that there was no further concern about Letby, is that correct?
OLIVER: I'm not saying it is -- it's as obviously placed as that at all. What I'm saying is they kept coming back to the fact that there was no evidence or no factual evidence that there was a concern about Letby and going back on to the ward. And, again, it was thought of: well, if we're planning -- if we are planning to do this, just how on earth are we going to do it? And at the time it's a private thought and maybe I should have been more blunt and factual about it and said it. But I couldn't see with where we were in the situation how that could be achieved.
MS BROWN: If we could go then to a meeting on 13 April. This was a meeting that was attended --
LADY JUSTICE THIRLWALL: Sorry, Ms Brown. It's a quarter past 1.
MS BROWN: It is. There is only one more meeting I'm going to. I don't know if it would be convenient just to finish that.
LADY JUSTICE THIRLWALL: Yes, of course.
MS BROWN: Yes. Mr Oliver, there was then a meeting on 13 April. If we could put this up. This is the last document that I will need to put up, INQ0003236. This was the meeting that was attended by the barrister Mr Medland. Can you just give your impression of what happened at this meeting, what you recall from this meeting?
OLIVER: Medland, Mr Medland was called in from his
position as a legal expert, a QC as he was at the time, and he came in and examined all of the -- the evidence and the reviews that we'd done as a board and so on and he said certain things at certain times. I remember him saying "There is no evidence of a crime", but then he countered that by saying, "If there are still genuine concerns, in well-minded people, you should go to the police."
BROWN: And I think just to --
OLIVER: I think he was --
BROWN: Just to finish the picture. On 2 May there was a further extraordinary board meeting and on that occasion that next step was taken and the board were informed that there was an intention to go to the police?
OLIVER: Yes. I think Medland was actually guiding us in the direction of that.
BROWN: Looking back now, Mr Oliver, do you have any reflections on what you were informed by the Executive and where challenges could have been made by the Non-Executives, such as yourself, to have either gone to the police earlier or have ensured that no decisions or a firm decision was made at an earlier stage to remove Letby from the ward?
OLIVER: I think I state in my I think it's reflections
or recommendations is that in situations like this there will always be close scrutiny of the timetables that are kept for these, these procedures to follow. And there were, I think, a number of times when it's possible, yes, that the programme events could have been pulled tighter and could have been done sooner. I then think if, if that is the case, I mean there were times when things could have been brought forward. But then if that had been the case, would we have not done other reviews? Would we have tried to short-circuit that? It was an attempt by the Board to cover every eventuality hopefully and make sure that we looked at every way forward to do that and I'm afraid it, it does take some time, times can slip. But I'm sure if you actually look at the timetable and narrow it all down again, things could have been done sooner; yes.
MS BROWN: Thank you. I have got no further questions. The Chair may have some.
Questions by LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: Just one really, picking up on your last observation. You were listening I think to the evidence of your predecessor, witness Mr Higgins.
OLIVER: Yes.
LADY JUSTICE THIRLWALL: And he made the observation that he felt really that the Board and the
Executive as well obviously were trying to carry out an investigation for which you simply didn't have the expertise. Is that an observation that you agree with or not?
OLIVER: Yes. I think the thing that there could have been more clinical presence around the procedures and the protocols and so on is something that I would agree with. I think at the time is that they were also, you know, working, working at the Trust three days a week -- three days a month, sorry. You, I suspect, do tend to miss out on an awful lot of operational day-to-day issues which I know at the induction, when you become a Non-Exec, you are warned very much about becoming too involved in and we may have missed things that would have been helpful. But nothing springs out that I think we were not kept as appraised as we should have been during this time. Nothing jumps out to say I really think this, this was wrong or this shouldn't have happened. I was happy with the information we were given.
LADY JUSTICE THIRLWALL: Thank you. Does anybody want to ask anything?
MS BROWN: There are no other questions.
LADY JUSTICE THIRLWALL: Thank you very much indeed. You are free to go. We will take the break now and start again at 20 past 2.
(1.21 pm)
(The luncheon adjournment)
(2.19 pm)
LADY JUSTICE THIRLWALL: Would you like to come forward, I think you were given about three different messages, please come forward.
OLIVER: Sorry.
LADY JUSTICE THIRLWALL: You don't need to be sorry, we do. There's three of us.
MS RACHEL HOPWOOD (affirmed)
LADY JUSTICE THIRLWALL: Do sit down.
HOPWOOD: Thank you.
Questions by MS BROWN
LADY JUSTICE THIRLWALL: Ms Brown.
MS BROWN: Could you please give your full name?
HOPWOOD: Rachel Hopwood.
BROWN: You provided a statement to the Inquiry dated 24 May 2024 and is that true to the best of your knowledge and belief?
HOPWOOD: That's correct.
BROWN: Just dealing with your experience, you are a chartered accountant?
HOPWOOD: I am.
BROWN: In October 2010 you were appointed as a Non-Executive Director of the Western Cheshire Primary Care Trust and in April 2011 as a Non-Executive Director of the Community Care Western Cheshire?
HOPWOOD: I was a Non-Executive Adviser first at the PCT and then a Non-Executive Director of both the board and also of the Western Cheshire Primary Care.
BROWN: Then in December 2011 you were appointed as a Non-Executive Director at the Countess of Chester?
HOPWOOD: That's correct.
BROWN: Did you hold those -- is it three Non-Executive Director positions concurrently?
HOPWOOD: So I was concurrent in terms of the community care and the PCT but then I resigned from the PCT and community care to joint the Countess of Chester board.
BROWN: So whilst you were the Non-Executive Director at the Countess of Chester, that was the only Non-Executive Director position you held?
HOPWOOD: Correct.
BROWN: In terms of your roles in addition to sitting on the board, you understandably as an accountant chaired the Audit Committee, you were also a member of QSPEC and I think from July 2016 you acted as deputy chair to Sir Duncan Nichol?
HOPWOOD: That is correct. I was initially on the
Audit Committee but then I assumed the chair after I think about 15 months or so.
BROWN: In relation as we said the audit, your experience of that is obvious. In relation to QSPEC, you clearly didn't have any clinical training, how did you view the role you played on QSPEC and whether you were able appropriately to contribute to that committee?
HOPWOOD: So I think at the time where QSPEC was dealing with safety, care and patient experience, clearly I -- as you say I didn't have any clinical background so I very much relied on the reports and the -- the verbal assurances that I got at QSPEC. QSPEC as I recall was very well attended. There were both the clinical leads for urgent care and for Planned Care as well as nursing leads for the -- for the divisions. There were also other clinicians around the table from therapy services, pharmacy et cetera so I felt it was -- it had a wide membership from a clinical perspective but clearly as an accountant I -- I was very reliant on the data I was being given through the clinical lens. I did feel that as a patient myself, my family and wider family were within the community of the Countess of Chester, so I did feel from a patient experience perspective I could have a lens in terms of that
experience but not from obviously a safety.
BROWN: In a sense there's two aspects, isn't there, because one aspect is what you were contributing to the committee but there was also the fact that sitting on that committee informed your knowledge in order for you to be an effective board member and did you think that was a helpful aspect of it?
HOPWOOD: Certainly at the time I did. I know the -- I know that it could be perceived as, you know, some conflicts between the committees but I found it very helpful to sit on that committee at the time because, as you say, I think that there were -- there were not any clinical NEDs until Mrs Fallon joined in 2016 and I certainly found it helpful to understand more about the inner workings of those agendas.
BROWN: At paragraph 2, you set out your understanding of the role of a Non-Executive Director and you refer to the Code of Conduct of accountability which is the predecessor document of the Code of Governance and you say there that you understood it was a part of your role to scrutinise the performance of management. Can you just expand on that a little in terms of what you saw your role as being?
HOPWOOD: So I certainly saw my role as being one of constructive challenge. Clearly with a finance background I felt, you know, I had very much been recruited -- when the job was advertised it was for expressions of interest from people with accounting and finance backgrounds. So the hospital at the time there were multiple cost improvement plans, it was a time of financial pressure. So, you know, very much I felt that it was there to look at the evidence look at the assurances that were being given and ask challenging questions and I feel that, you know, as a Non-Executive, you know, it was certainly there were some challenging questions that were asked.
BROWN: As you say your focus, the reason you were recruited was because of your accountancy experience but you understood, did you, that the board had collective responsibility for patient safety?
HOPWOOD: Absolutely. I understood the concept of a unitary board but, you know, clearly collective responsibility as opposed to sole responsibility and there would -- I would, you know, expect any board to be made up of different constituents of skillsets to get the most out of a well working board.
BROWN: Sorry to interrupt. In terms of training, you deal with this, I am going on in your statement and you talk about attending training that brought to your
attention the need to hold Executives to account and you also refer to safeguarding training and guidance on whistleblowing?
HOPWOOD: (Nods)
BROWN: Just very briefly, when and where were you receiving that training?
HOPWOOD: So I would have seen policies in committee, the policies you are specifically referring I believe I saw in Audit Committee and QSPEC as well as main board. I also remember safeguarding training that was delivered in person that was out of the training centre at the Countess. I actually specifically -- I know I received children's safeguarding training. I specifically actually remember the adult safeguarding children, you know, particularly around keeping people with disabilities and cognitive issues safe. So we were receiving training.
BROWN: So for someone coming in as a NED with no clinical background, did you feel the training you were given as a NED coming in was appropriate and brought you up to the skill level you needed to be effective?
HOPWOOD: I think -- I mean obviously we have talked about some very specific trainings. I felt well supported by the trainings that were offered by that
were offered by MIAA and our external auditor KPMG, they tended to bring together either chairs of audit or Non-Executives in group settings and then would be talking about some of the wider strategic issues that NEDs were facing in performing their responsibilities and also in terms of specific issues at the time. So I did feel that holistically there was good support and I also personally found it extremely helpful the guidance and support I received from Sir Duncan who obviously had a very experienced NHS background and I felt was very generous with his time in terms of helping me.
BROWN: Turning to that on that topic that you were at a point the deputy chair. What did that role involve?
HOPWOOD: So at the time that role didn't seem to involve anything other than I had existingly been doing potentially just stepping in for the chair at meetings that he wasn't able to attend, I had no, you know, additional responsibilities in the job spec. I wasn't given more remuneration, there was nothing about it. I had seen the -- the form, there had been a previous Chief Executive, Sir Duncan was very active in the Trust so I didn't feel I would be stepping-- I would be required to actually do much more than I was, I was existingly doing in terms of meeting attendance
and I think as it happened, I only went I think to two things on behalf of the chair, one, the meeting with the Consultants at the end of January 2016, which I am sure you are going to get to, and also I think I went to an award ceremony on behalf of the chair.
BROWN: In terms of the time commitment, you have touched on that briefly?
HOPWOOD: Yes.
BROWN: But you say in your statement that three days per month advertised was unrealistic?
HOPWOOD: Yes.
BROWN: Can you just explain that a little?
HOPWOOD: I think -- you know, I think reflection and hindsight to a wonderful thing. At the time I felt incredibly busy, I felt, you know, the size and scale of the papers, you know, the number of committees I was sitting on, it was a lot. You know, there was, there was -- I had obviously had experience at the Primary Care Trust, it was at a different level in terms of volume, size and scale. And I certainly think that, you know, if you look at how small a relative group of NEDs we were covering the district general hospital, I think on reflection, we -- it would have been helpful to be bigger.
BROWN: Just in terms of the tone of the board meetings, you say in paragraph 9: "I never felt unable to debate and constructively challenge in meetings." What was the dynamic at board meetings in terms of the participation of Non-Execs?
HOPWOOD: Well, I felt it was good. I felt that we covered a broad range of topics. I felt that, you know, when I heard my colleagues ask questions I thought they had purpose, I didn't think they were leading questions or questions to -- for the sake of asking a question. I thought they had purpose, I thought they were looking for assurance so I thought the challenge was good, it was taken -- you know, and sometimes the challenge was robust but it was taken in good part as part of us all gaining assurances and I never personally felt, you know, unnecessary tension.
BROWN: Despite the fact that you didn't have clinical experience you always felt in a position where you could contribute and your voice would be listened to; is that fair?
HOPWOOD: Yes, I think -- you know, I found Mrs Kelly very, very patient and, you know, was very happy to answer questions. I -- I certainly, you know, never felt in any way, you know, up until the end -- up until 2017 I never felt in any way dismissed or discarded or
treated anything other than hugely professionally.
BROWN: We will come to that at the end of your evidence in 2017. In terms of now turning to the specifics of the period of 2016/2017 there was a board meeting on 5 July, a public board meeting that you attended and at that board meeting the neonatal unit wasn't raised but helpfully you kept a note of a private NED meeting that was held before and if we just could have that on screen INQ0102040 and it's 002. This is your note. Can you recall -- first of all, can you recall who else attended and then the nature of the discussion?
HOPWOOD: I think -- I think the note you are referring to is actually Mrs Fallon's note.
BROWN: Oh, I'm sorry.
HOPWOOD: It is not my note.
BROWN: Yes, but in terms of that note --
HOPWOOD: Obviously I have been -- I have been provided with the note as part of this Inquiry. I can't say I can recall in detail the briefing before or who was in the room. But, you know, I do recall that we were told that it was going to be -- the unit was going to be downgraded.
BROWN: Did you feel that that was something that
should have been discussed with you in advance, it was presented to you as what was happening.
HOPWOOD: I -- I don't know if -- if I thought that or not. I -- I think on reflection obviously it's a long time ago, but things seemed to be moving quickly and, you know, sometimes just with the logistics of getting the board together, because obviously we weren't in the hospital on a daily basis, I'm not sure I would have had a thought on that specific topic that, you know, because I don't think we were presented with anything, I think we were just informed.
BROWN: In relation to that, was there any discussion as far as you can recall about a concern about a nurse being connected with it?
HOPWOOD: I -- I really can't recall but I think I would have done because I'm definitely clear that that was when we were shown the -- the chart at the subsequent meeting that I -- that was around one individual but I can't remember if that individual was named.
BROWN: We know that it wasn't discussed at the board meeting. Was that a pattern that some of these, we know the matters with Letby weren't discussed at public board meetings. But the downgrading of the unit, did it surprise you that that wasn't a matter that was discussed at the
public board meeting, given that a few days later a public announcement was made about that?
HOPWOOD: I don't -- at the time, I think this meeting was immediately before a board so I'm not sure I would have had the time to reflect and think about should it then be on the -- the agenda of a board. It wasn't -- in answer to your question it certainly wasn't common practice as far as I can recall for things not to be -- to go through boards. There was the odd occasion when maybe something was commercially sensitive, that I recall us taking items out of board.
BROWN: But you felt the public board meetings were an effective forum for discussing the issues?
HOPWOOD: Yes, I did, I did.
BROWN: If we can turn then now to the meeting of 14 July. That is INQ0003238. Were you aware -- well, when it comes up, were you aware prior to this meeting I think you said it was at this meeting that you learnt about Letby for the first time?
HOPWOOD: Yes.
BROWN: Were you given any advance warning of what was going to be discussed at this meeting or were you --
HOPWOOD: Not as -- not as far as I'm aware and I don't recall being, you know, on extraordinary boards being given pre -- pre-notice of, you know, apart from the topic we are going to discuss X, but certainly not giving -- given notes or briefings.
BROWN: So you are aware it was going to concern the downgrading of the unit but in terms of the responses you made to the issue of the nurse the responses you gave were --
HOPWOOD: Yes.
BROWN: -- in the moment so to speak?
HOPWOOD: Yes.
BROWN: If we could just turn to page 6 of the notes of that meeting -- sorry, it is number 004, it's internal. Thank you. We see there in the middle of the pages clearly the downgrade of the unit had been discussed and Dr Brearey and Dr Jayaram attended this meeting and it says there Dr Jayaram stated that what he would say next was confidential. Can you just give a flavour of what you recall Dr Jayaram and Dr Brearey set out at that meeting in terms of the level of their concern and what they were saying to you?
HOPWOOD: I recall being shown a -- a chart of shift patterns I think it was to -- to death, but I don't recall any other specifics that they were saying.
BROWN: That chart, did that highlight Lucy Letby's name on it?
HOPWOOD: I can't honestly recall. I was aware it was one -- it was one individual but it was a pattern they had done that was for one individual but I -- I can't honestly if Letby's name came on or --
BROWN: What did you understand in essence was the concern of Dr Jayaram and Dr Brearey; what were they bringing to the board? So there is a concern, there was a -- was that you understood it to be a nurse?
HOPWOOD: Yes, I mean, I certainly understood that it was linked to a rise in deaths in the death rate and I definitely understood that they were, they were pointing to concerns about an individual and I think I am correct in saying I understood that that individual had been moved to non-clinical duties.
BROWN: Well, we will come to that in a moment. Because at that stage, in a very literal way you had two Consultants who were in fact literally speaking up to you -- unusual at a board to have two Consultants present speaking up -- and they were voicing concerns and those concerns went to patient safety and the possibility that harm was being done to a child and the future possibility of harm. Why, given the training you have had, you spoke about you have been trained in safeguarding and on Speak Out and were familiar with the policies, why do you
think that it wasn't raised at that meeting, that -- the policy of Speak Out which would have meant of course referral to the LADO?
HOPWOOD: Yes.
BROWN: You acknowledge that in your statement looking back with hindsight, but why at the time was that not recognised by the board?
HOPWOOD: I have reflected on that a lot, as you can imagine, because there was a whole board of, you know, of Executives and Non-Executives plus two paediatricians and none of us identified this as a whistleblowing. And I think the only thing that I can conclude is at that point, we, we went -- it was almost like, you know, we went down a rabbit hole of safety and trying to triangulate data which I think was quite common in terms of QSPEC, trying to find reasons. So rather as you rightly point out that initial actually we don't need to prove any data, this is, this is a theory, but it's protect -- it's a disclosure under the Act and therefore all the safeguards to the clinicians themselves under that Act should be -- you know, should be actioned and the LADO should be informed and from that there would have been a conversation that ... Instead, we got into this triangulation of report,
you know, can we find the reasons why this, you know, this is one scenario. But are there any other scenarios? And I think, you know, in the context of reasons for safety reasons and concerns, often being complex, multi-factoral, when actually the -- the reason was frighteningly simple.
BROWN: In terms of what you did deal with at the board, one of the matters was what action needs to be taken in relation to the nurse and if we can go to page 6, 006, you then we see -- well, to put it in context, Mrs Fallon had raised the issue of competency of the nurse and at the bottom of that top paragraph Dr Brearey had responded saying that if there had been a competence issue this would have been flagged up. So certainly Dr Brearey was saying their concern was deliberate harm, not competence. Then you pick up and say how practical it was for the staff member to work under supervision. So at the time there you were clearly concerned or it seems -- well, you say what your concerns were?
HOPWOOD: Well, I was listening clearly in the -- in the moment to what the Consultants were saying. I would have clearly also looked to Mr Harvey as the clinical lead for guidance from a board perspective because that's where I would typically get my -- my highest levels of clinical assurance from. You know and I guess as we have said I have no clinical background but even I could see that supervision would be challenging. You know, how would you do it? And there in the minutes then followed a discussion and, you know, obviously the nurse wasn't put under clinical supervision.
BROWN: Well, just picking up on that because Mr Wilkie picked up -- he had the same concerns as you and there is multiple references to Mr Wilkie expressing his concerns about whether Letby should be supervised on the ward and whether that eliminated the risk that being concerned about given the gravity of the risk that was concerned. As you say, in a sense that's not something you need clinical experience for. But in fact the decision that the board went away with was that Letby was going to be supervised and Mr Wilkie has given evidence that he had a sleepless night and went and spoke to Alison Kelly about it the next day. Were you not concerned at that point that the board was going away with a view that Letby could be supervised, you have clearly raised the issue?
HOPWOOD: Yes.
BROWN: But it doesn't seem to have been followed through at that meeting?
HOPWOOD: Yes, I think that's -- I think that's a fair observation in hindsight. You know, if I look at these, these meeting minutes there are not clear actions with accountable you know -- I think on here, you know, Mr Chambers states he is going to take personal oversight and follow it -- follow it through. But yes, I -- I didn't personally go and then seek further assurances that my colleague did.
BROWN: The meeting then moved to discuss first of all the police and if we can go to page 8 and whilst -- it says Mr Cross outlined his understanding of what action the police would take if they were called to investigate the matter. Just briefly, what was your understanding about what was being discussed in terms of calling the police and whether there was concern about calling the police at that time?
HOPWOOD: I'm not sure, clearly I can see from the minutes --
BROWN: Yes.
HOPWOOD: -- we had a discussion but I'm not sure I can remember the specifics of that discussion.
BROWN: The next point coming on to discussing was the Terms of Reference for the RCPCH. Again prior to dealing with this on the spot, as it were, had you been
circulated or seen the draft Terms of Reference?
HOPWOOD: No.
BROWN: What did you understand to be or did you understand, have a clear understanding of what the RCPCH was being asked to do in your mind?
HOPWOOD: I -- I think at the time I thought the review would go some way to triangulate the data. Clearly in hindsight, I did not have a clear view and understanding of what had been commissioned.
BROWN: Isn't it the case that in fact given the significance of the issue those Terms of Reference should have been considered very seriously at the board and if you didn't have the opportunity to do so there, if it had just been presented to you, that time should have been taken to scrutinise those?
HOPWOOD: I think for certain the Terms of Reference needed -- need great scrutiny. I'm not sure as a non-clinician, whether even in the broad context I would have been the right person to -- to scrutinise and provide full assurance. I think I would have had to have relied on other clinical colleagues but I think clearly multiple number of clinicians reviewing the Terms of Reference would have been appropriate.
BROWN: Just at the very end of that meeting we can see your concern if we go to page 9 because you say:
"Mrs Hopwood stated she felt this was fine but that another board meeting be held post review as a minimum unless there is a need to get together sooner."
HOPWOOD: Yes.
BROWN: In fact, we know that there wasn't a board meeting, a full board meeting, to discuss this until January. Do you think in retrospect you should have followed that up or did you in fact try to follow that up and find out what was happening?
HOPWOOD: I -- I mean, clearly in retrospect I can see the report was published in October from the pack. So clearly in hindsight, we should have had a board meeting before January to review the report. I mean, I absolutely wish I had followed up but I also think, you know, that the board actions were primarily the responsibility of the Executive and in this case Mr Chambers, because he was taking lead to make sure that we were acting, but I totally accept I should have followed it up as well.
BROWN: We see in fact that these minutes, they are not as is sometimes the case -- they are not listed by a table of actions?
HOPWOOD: Yes. I think I made reference to that.
BROWN: If we can then go to 19 September, this was the QSPEC meeting 0003178. This was a meeting where you sat on a QSPEC meeting where Mr Harvey just gave a verbal report, if we can go to page 2, of the review, of the RCPCH review and he says there that the College -- in the middle of the paragraph: "The College have recommended the Trust commission a forensic review carried out by two independent paediatricians." That was the view then, in fact of course we know it was Dr Hawdon, a sole paediatrician, who carried it out. At that point, was it -- and indeed should it have started to ring any alarm bells for you at this point, the RCPCH hadn't -- I think you use the term triangulated, but they hadn't and that at this stage the police needed to be reconsidered as an option as the people who could investigate the RCPCH, not having been able to?
HOPWOOD: I mean clearly in hindsight, you know, as you suggest I wish that had been the action taken. I think at the time I was -- I didn't necessarily have an expectation of reviews, obviously reviews being thorough but reviews weren't necessarily quick, so it perhaps wouldn't have surprised me if things took time.
BROWN: If we can then go to the board meeting that did then discuss the RCPCH report, so this is the
meeting of 10 January and the reference is INQ0003237. Now, one of the issues is what information the board had available to them. What is your recollection of when you saw and indeed what version you saw of the RCPCH report?
HOPWOOD: So I definitely have recollection of a meeting where Mr Harvey came in -- there were two -- two doors in the boardroom that we used to meet in and Mr Harvey's office was off the room that we didn't commonly go into and I remember Mr Harvey bringing reports into the room at the start of the meeting and then those reports going back. I can't honestly say can I remember whether it was the -- I have obviously seen both in the pack, which version I saw, but I do recall having very little time, it's obviously a complex report to read, you know, before somebody, which I think it's not unreasonable to assume was Mr Harvey, started talking about what it was I was reading.
BROWN: Why did you understand you weren't allowed to take the report away with you?
HOPWOOD: I -- I really can't remember. I definitely didn't challenge it.
BROWN: Did it strike you at the time or any of your colleagues as unusual that this very important report
that was looking into an issue of the utmost importance was something that you weren't being given time to properly consider?
HOPWOOD: I think the take-away not necessarily because of the confidentiality of some of the data that was in there. But I absolutely think we should have had -- I think you can obviously keep -- keep documents, you know, in close quarters, ie not just have documents, you know, unsupervised but you can give someone a lot of time to read it. So I think we could have had longer to read and digest, maybe then go away and then have a meeting.
BROWN: Looking at that meeting, we see that Mr Harvey sets out the review of the RCPCH so it seems likely that that was -- that recollection of reading the report would have been at this meeting, but you can't assist?
HOPWOOD: Sorry, can you --
BROWN: It seems likely that your recollection of reading the RCPCH would have been on 10 January?
HOPWOOD: I think it would be likely.
BROWN: So the report that you have had a chance to read briefly and you say you can't recall whether it was the redacted or unredacted version, ie the version that had Letby referred to or not, but Mr Harvey then goes on if we can go to page 2, to explain that one of the
recommendations of the report was for there to be a further review and that was the Jane Hawdon review but that report hadn't been circulated. Then if we see further down, first of all, Mr Harvey gives a summary and he says the case reviews very much reinforce what is in the reviews. So he is summarising Jane Hawdon saying case reviews reinforce what is in the RCPCH review, it comes down to issues of leadership, escalation, timely intervention and does not highlight any single individual. Then Mr Chambers says: "There are some outstanding matters, one final, four reviews from Alder Hey, once we have that we can draw a line under this first part." So did you looking back understand that there was still an incomplete aspect to the investigation?
HOPWOOD: Well, I think by the nature they were -- they were talking about more -- I think just remind me, can I just go back to page 1 of this?
BROWN: Yes, of course.
HOPWOOD: Sorry, then to 2, please. So I -- I think by saying they -- they needed to commission the in-depth and there was still some postmortem results I would have understood there was still some more work to do, that this wasn't drawing the line. But I would absolutely, you know, of -- of relied on Mr Harvey's clinical interpretation of what the report was saying.
BROWN: Yes, and that's the issue, isn't it?
HOPWOOD: Yes.
BROWN: Because as someone who is challenged there as a Non-Executive to challenge, these very important reports, one of which you accepted you hadn't really had time to absorb and one you hadn't seen, was this a situation where that challenge should have been no, we need to -- we need more time to consider this certainly because what you were being asked to do and I am going to take you to the moment when you were being asked to consider putting the nurse back on the unit?
HOPWOOD: I think on reflection we needed the two paediatricians in the room who had been in the room in July.
BROWN: If we can just go to page -- I am going to have to flick, I'm afraid, between documents but if we can just go to INQ0003518, this is -- it is going to come up -- the very brief report that Mr Harvey presented to the board on 10 January setting out the fact that the RCPCH had reported that noting there had been a grievance and then what had gone on following that.
Over the page, we see what the board is being asked to do and we will see at (c) there you are being asked to support the Executive in assisting the staff member's return to work and implementing the recommendations of the grievance. It's the case, isn't it, that really you were being asked to support the Executive on such a key decision given the risk, if it was an incorrect decision, on inadequate information; would you say that's fair?
HOPWOOD: I mean obviously I have read the -- read the papers as part of the review. I can't say I can recall this meeting. So I can see I was there.
BROWN: Yes. So you can't -- you can't assist on whether you felt or how you felt about supporting the Executive in the return of Letby to the ward?
HOPWOOD: Because this particular meeting I really don't have a recollection of?
BROWN: But it is the case, isn't it, looking back over the minutes that you were being asked to support her return having not seen --
HOPWOOD: Yes, I mean clearly.
BROWN: -- the documents?
HOPWOOD: Reading the minutes you -- you couldn't -- no one reasonable could reach any other conclusion.
LADY JUSTICE THIRLWALL: I'm sorry to interrupt, Ms Brown, but can we just be clear. This document was produced when, when was it given to the --
MS BROWN: At the meeting.
LADY JUSTICE THIRLWALL: At the extraordinary board meeting?
MS BROWN: Yes, so if we go back to INQ0003237. That's the meeting when Mr Harvey gives an overview and our understanding is that that's the overview that this document, the document we have just seen, relates to, Mr Harvey's overview.
LADY JUSTICE THIRLWALL: Thank you.
MS BROWN: There is just one other matter in relation to that meeting, if we could go to on to page 6 of the document we have got up there. Did you have a concern at the time about the leaking of the RCPCH report to the press?
HOPWOOD: So I remember feeling very strongly and I think if you look at various minutes as been shared with me, I often ask questions about candid feedback and patients being -- being informed. I felt very strongly at the time that we needed to make sure that we were communicating in the appropriate and timely way and a supported way with the families. I'm afraid that I didn't have a very, very strong
view on responsible reporting of maybe some, some aspects of the media and I felt there would be nothing worse than waking up to some sensational story for clickbait, when we -- you know, if the hospital hadn't -- hadn't communicated in the appropriate way.
BROWN: Was your concern about any group speaking to the press, any particular group of people reporting that?
HOPWOOD: No and I think, I think the handwritten minutes, I -- we had a conversation about various constituents of stakeholders and it was just any stakeholder.
BROWN: Yes, I just need to correct this. I think this has been referred to before, so it's on page 6 where it says: "Mrs Hopwood asked that the assurances that the report will not be leaked to the press by Consultants ..." The handwritten note of the meeting that you are referring to, if we can just turn to that, INQ0003332, page 23, it's a minor point but it just needs to be made clear what's on the minutes don't seem to reflect what's on the handwritten more contemporaneous note. So INQ0003332 and page 23. We see there Mrs Hopwood asked that these assurances the report will not be leaked to the press but there's no reference there to that being by Consultants. It then goes on: "Mr Chambers replied that this would part of the conversation with clinicians who will be very clear about the expectations." But the note doesn't appear to be that your concern was about the Consultants?
HOPWOOD: Yes, it was more general.
LADY JUSTICE THIRLWALL: Yes, it looks as though the two things have been taken together --
MS BROWN: Yes, it seems there has been a --
HOPWOOD: I think there is a couple of instances of that.
LADY JUSTICE THIRLWALL: Do you remember this part of the meeting, or again do you not have any memory?
HOPWOOD: Sorry?
LADY JUSTICE THIRLWALL: Do you recall this part of the meeting?
HOPWOOD: I -- I definitely recall being very concerned for the parents.
LADY JUSTICE THIRLWALL: Yes.
HOPWOOD: I don't recall in any way being focused on one group who were somehow, you know, the agents who were going to leak. It was, you know, because we were
talking about this report obviously being shared with a number of stakeholders because, you know, clearly it wasn't -- it would be circulated.
MS BROWN: I think it's in reviewing these notes for this hearing that you have picked up that didn't ring true and checked the handwritten notes.
HOPWOOD: Yes, yes.
BROWN: If we can then go to the meeting of 26 January. This is the meeting that you attended on Sir Duncan Nichol's behalf. It's INQ0003523, so this is a meeting that was attended by all the Consultants and Mr Harvey, Mrs Kelly, Mr Chambers, and you were there on behalf of Sir Duncan Nichol. At this meeting, just to put it in context, Mr Harvey is discussing the RCPCH review with the Consultants here and if we can go over to page 2 and just highlight a few of the things that were said at that meeting. At the top, Mr Chambers is talking about the grievance had indicated there had been victimisation of the nurse. Further down, there is a need to draw a line under the Lucy issue. Further down, the board had noted that an apology would be requested from the Consultants. We see at the bottom of the page it appears that Mr Harvey stated the report would be released to
everyone at the same time, some issue about who had seen the report. Is this a meeting that you recall and, if so, what were your impression of this meeting?
HOPWOOD: I -- I can recall this meeting because it was so unusual that I was asked to step in for Sir Duncan and it was with very little notice. I -- I think my impressions of it at the time were it was -- it was a more tense meeting -- I mean, I hadn't attended Executive clinician meetings, I had obviously attended boards and committees but I hadn't attended what I would describe as an operational meeting. So I thought it was a little more tense than I would experience at a board or a subcommittee. It seemed -- it seemed cordial. I wouldn't have described it as very aggressive or, you know, unreasonable. I think if I had, I would have gone back to Sir Duncan and said, you know: the tone of that was totally inappropriate and either on the clinician's behalf or Mr Chambers' behalf, I think body language was -- was tense. I think I picked up on the body language. But I wasn't sighted at that point on anything that had happened in the grievance process and now obviously as part of this Inquiry I have been given the grievance documentation. So now my reading of the meeting, having
seen some of the interviews that were conducted I think particularly Mr Brearey's interview I was particularly taken aback by the tone of that, I perhaps now have a slightly different view of the meeting and I can see how it might have appeared more confrontational than at the time I was -- I was aware of.
BROWN: Because even setting aside what you know subsequently there were a few things there that might have caused alarm or concern sitting on the meeting they are talking about -- you had heard Dr Brearey and Dr Jayaram speaking about their concerns back in July and there's reference to then victimisation of a nurse and an apology needed from the Consultants it wasn't just on the face of it that striking you as completely contrary to the Speak Up policy?
HOPWOOD: Again I think I had -- I would refer you to -- I mean, I absolutely accept your point in hindsight. We were --
BROWN: Not even in hindsight. At the time you are sitting there. You have in person heard Dr Jayaram and Dr Brearey express their concerns and I presume in the 14 July maybe you can tell, you assumed their concerns were genuine?
HOPWOOD: Yes, for certain, for certain.
BROWN: You are now being told in fact the Speak Out Safely process has even been highlighted by being referred to and it's being referred to there's been victimisation and needing an apology from the Consultants when you are aware they had raised what you at the time thought were valid concerns?
HOPWOOD: Yes.
BROWN: Regardless of what had gone on, why was that not causing you concern from a Speak Out perspective?
HOPWOOD: I think the -- the -- that failure in July to -- to recognise the safeguarding which would then of put the grievance on halt because the grievance would not have gone across, the grievance was sort of spanning to a different place. I was aware that, you know, and I think it states some of the statements that had been made, so it allowed Letby to create a -- an alternative narrative around victimisation and grievance when everything should have been focused on safety and obviously taking the steps to report to LADO and safeguarding. So I'm -- I totally accept your point.
BROWN: Yes.
HOPWOOD: But -- but it wasn't something that registered with me at the time.
BROWN: If we can just then turn to what happened subsequently. There was a meeting on 13 April when
Mr Medland spoke to the board and spoke about the possibility of going to CDOP, the Child Death Overview Panel then, and if we could just turn to INQ0003236, page 5. At that meeting first of all, what was your understanding of what was being said in terms of contact the police at this point?
HOPWOOD: So, sorry, I'll just ...
BROWN: In terms of -- maybe we should go back to page 4 in terms of -- well, let's stay on page 5 because there is another point I am going to come to. Just your view, first of all, before we come to the notes about what you were being told about involvement of the police?
HOPWOOD: So I think there still seemed to be -- I mean certainly in my mind from the minutes -- a confusion about how many cases we were looking at, you know I can see I asked would it be four cases, eight cases? So there was still a lack of clarity in messaging certainly in my mind about what it was I was -- I was asking for that clarity. But I certainly understood -- I think I felt that Mr Medland had said we had gone through steps and then the next step was the police. I didn't take it as the first step was if -- you know, if you have reasonable
doubt, you go to the police. I think the way he did the chronology certainly maybe misled me into thinking you did this triangulation of data, and then if that still was not ...
BROWN: So he was suggesting at that point, did you understand, that you would go to CDOP and then potentially go to the police?
HOPWOOD: Yes.
BROWN: Just on the page we have got up now, just really in terms of communication with the parents, because you raised this on a number of occasions we see Mrs Hopwood asked if there was a plan to communicate this to the Families and then a need to have some pre-emptive lines to the Families and then further down asked if the report had been shared with the Families. It seems that you were raising a concern about communication with the Families and --
HOPWOOD: We are --
BROWN: And that follows through just -- we won't turn to the next meeting but the following meeting that was in May, when at that stage the police were contacted, you returned to that and you ask about communication and a single point of contact.
HOPWOOD: Yes.
BROWN: So just your thoughts on how the board handled
communication with the parents?
HOPWOOD: Well, as you say, I think I also referred to it in the January meeting and, you know, I got assurances there were plans and draft plans and very much from a communication to parent perspective, I saw that as being first and foremost operational, you know typically, clinicians, nursing staff would communicate obviously in this case given the seriousness of the situation, I would have expected that communication to be with the Medical Director and indeed Mr Chambers who had said in July that he was taking personal responsibility for the role, I can see in hindsight I wish I had asked foresight of the written plan because I took reassurance from being told there was a plan that the communications were happening. But I never saw the communications or asked to see the communications.
BROWN: Thank you. If you can just -- if I could just ask you to return to your statement, that can go down. Return to your statement where you have some reflections at the end of your statement. You talk about, with hindsight, views about Letby being suspended earlier and the recognition that there was whistleblowing going on, which we have covered. But you deal at paragraph 83 with you felt access on the board to more detailed metrics including number of deaths, that's something that you felt would have been helpful, do you think that would have alerted you to the problem at an earlier stage?
HOPWOOD: I -- I definitely think that the timeliness of metrics around mortality was and, and certainly independent assurances, so if I think back to December 2015 and QSPEC, when that was -- I think the first time I was aware that there was a concern of a raise in deaths in the neonatal units, I gained assurance with a reference to the MBRRACE, MBRRACE data showing that the Trust was still 10% under national average. So we were still reporting below average even -- and I understood it in the context of even with those five extra deaths we were still 10% under, obviously with a non-clinical background. Obviously by going back through the notes and, you know, I think in the report at the time it was referred to, you know, the most recent MBRRACE data shows it turned out that data was actually I think related to 2014 and the period before. So actually it didn't relate to the period it was being compared against at all.
BROWN: So what would have been helpful to you on the
board was up to date current data --
HOPWOOD: Yes, absolutely.
BROWN: I think at paragraph 89 you talk about general disbelief across the Executive Team and a blind spot. Very, very briefly, how do you think that affected the approach of the Executive throughout this period of July?
HOPWOOD: Well, I do think this -- this presumption that there wasn't a frighteningly simple explanation, but instead safety issues are complex, multi-factoral, you know, we -- we kept, you know, receiving updates about, you know, was it the type of -- you know, how many, the numbers that were coming into the unit, was it about the criticality or the -- and, you know, were the babies more sick? You know, we kept looking for lots and lots of different factors but as I say there was a frighteningly simple factor.
BROWN: Then just one final topic. In July 2017, so after the meetings we have been going to, you attended a QSPEC meeting and I think you were then told rather than consulted that you were going to be put in the position of the Children's Champion and if you could just explain what your response was to that and why you had concerns?
HOPWOOD: My response?
BROWN: Yes.
HOPWOOD: I went to a QSPEC meeting and, you know, these are busy meetings, there were probably over 20 people in the room and I was -- and Mr Harvey I am sure it was announced that I was the Children's Champion and no one had mentioned this to me. I went home -- I was, I was absolutely horrified because I had never -- I had no idea what this was. I -- I had never experienced anything like it before in my -- in my time at the Countess where I just found myself announced as something without consultation. I -- I went home and I did something which actually I don't think I did before or since and I actually sent an email the next day to Duncan just expressing the -- well, the first thing I did was I met immediately after with Ian and Alison Kelly and Andrew and, you know, basically expressed how could I be put in this situation and, you know, I think I put in my statement.
BROWN: If we could maybe have up 0003122 because this is the email you sent.
HOPWOOD: Thank you. You know, I was told -- I think -- I think Mr Harvey in a joking way said yes, they were all wondering where you were and I was like: I haven't been told, and the Consultants were wondering why you hadn't been in touch and it's like: I didn't even know.
BROWN: Had you been informed at all?
HOPWOOD: No.
BROWN: Were you subsequently informed about what the Children's Champion was?
HOPWOOD: No, it was then incredibly vague. I had I think two meetings with Mr Harvey. I think there was reference to the RCPCH report which I hadn't got a copy of and I hadn't seen since January. I note that actually in that report it was an Executive Director position, not a Non-Executive Director position. I think -- you know, I had -- I think I had been briefed that, you know, they felt that relationships had broken down sufficiently between the Executives and the paediatricians that it wasn't -- this couldn't be an Executive role. I felt they wanted a mediation role between the Executive and the -- and the paediatricians which I was in no way qualified to do. I had no mediation or HR skills, I felt it was an operations role and that if they needed outside support that would be a more appropriate and neither did I have, you know, as I have pointed out any clinician background to be credible to a paediatric unit.
BROWN: We see -- we could see on the screen there that you draw the attention you feel it was you were put into an unacceptably uncomfortable position, awkward --
HOPWOOD: Yes.
BROWN: Professional embarrassment or awkwardness and so on. What did it make you feel or did it cause you to reflect on what that said about Mr Harvey's attitude towards the paediatricians and the seriousness with which he was taking the idea of there being a Children's Champion? Did you think about that aspect of it? So there was the aspect on you but there was also the aspect on how serious this role was being taken?
HOPWOOD: I think at the time it felt very throwaway, almost like we need to be seen to have this -- this role. It didn't feel well thought out. You know, there was -- there was no articulation. As I say, I am sure I had two meetings with Mr Harvey about it and then I had a subsequent meeting with the paediatricians in October which I know was in the pack. Although I don't think I have seen those minutes before, I think it's clear from those minutes neither myself or the paediatricians knew what the role was at that point and I do remember going back to the Trust office and I certainly spoke to Mr Cross and then I think at a later date to Sir Duncan just laying out how what some of the paediatricians' examinations and needs versus my ability that I was in no way suited and neither did
I have a time commitment that would allow me to say attend these weekly meetings which was the support they were looking for.
BROWN: Subsequently that role developed --
HOPWOOD: And subsequently that role was obviously directed I think to a much more suitable NED. But I do regret not following up with the paediatricians after that meeting to say: I cannot -- I cannot be what you need me to be.
MS BROWN: Yes. Thank you very much. I have no further questions. I think there are a few questions.
Questions by MR JAMIESON
MR JAMIESON: Mrs Hopwood, good afternoon. My name is Alex Jamieson, I ask you questions on behalf of some of the Families. My learned friend Ms Brown has in fact asked you about most of the topics that I would have done so. The first topic, communication with the parents, is obviously particularly important to the Families but we have heard your evidence about the reassurance that the Executives gave you and indeed the reflections that you wish you had checked that what you were being told was true and accurate and so I have no questions on that topic. But I do have a couple of questions on that last
topic that you were just covering with Ms Brown, that of the Children's Champion. As I understand the sequence from your statement, you are told that you have been appointed to this role in the July meeting of the QSPEC. From the document that was just put up on the very next morning at 9 o'clock in the morning, you email Sir Duncan Nichol to express your grave misgivings about having been appointed to that role?
HOPWOOD: Yes.
JAMIESON: And the manner in which that has happened and thereafter you have one or perhaps two meetings with Ian Harvey --
HOPWOOD: Yes.
JAMIESON: -- in which you discuss your suitability for the role and how it was that you were appointed for a role that no consultation had been undertaken with you. There is just one, and so when we get to the end of that sequence, Mr Harvey can have been in no doubt that you did not put yourself forward for that role?
HOPWOOD: That is correct.
JAMIESON: With that, please may we just look at a meeting minute and just, Mrs Killingback, before I give you this reference, when it comes up on the
screen, it's really important that only the top half of the document comes up on the screen. The INQ is INQ0004449, it is the minute of your meeting with the Consultants and the reason I have just given that direction is because I know you shared some really quite personal information with the Consultants --
HOPWOOD: I did.
JAMIESON: -- which is not relevant to my question so doesn't need to come up on the screen?
HOPWOOD: Thank you.
JAMIESON: But it's really the first interaction so just the top half, please, not at all that bottom half of the page, just the Ian Harvey paragraph. That is absolutely perfect. So we can see this is the meeting, this is your first meeting with the Consultants that comes after that sequence that we have established and we can see a number of names very familiar to the Inquiry in the attendees. You are there along with Mr Ian Harvey. The first thing that he is minuted as having said is this introduction: "Not all of you may be aware that one of the requirements of the College Review was that we should have a Children's Champion. Rachel has put herself forward ... " That was not accurate?
HOPWOOD: No.
JAMIESON: That was not true?
HOPWOOD: Clearly I didn't even know that I was being appointed until the QSPEC in the July.
JAMIESON: No, yes. As we have been through before he was in this meeting saying this: he had had you reacting to his announcement at the QSPEC and at least one, perhaps two, meetings with you before we get to here.
HOPWOOD: Yes.
JAMIESON: Yes. Did you challenge that assertion?
HOPWOOD: I think, I think so in short answer, no. I don't believe I have seen these minutes and the reason I don't believe that is there a number of factual inaccuracy in them about some of the personal data that we have had both on this page and on other pages.
JAMIESON: Okay.
HOPWOOD: And even -- and they are quite long minutes. Even if I had read them over from a -- what was in the table, I absolutely wouldn't of left some of those factual inaccuracies stated if at the time because to me the two most critical ones are actually on the last page.
JAMIESON: Okay.
HOPWOOD: Which is my personal email address and my personal mobile number, both of which are wrong.
JAMIESON: Right, okay. Well, I think then for fairness and for completion --
HOPWOOD: Yes.
JAMIESON: -- I should ask you -- I have read that sentence from --
HOPWOOD: Yes.
JAMIESON: -- the first paragraph as fact?
HOPWOOD: Yes.
JAMIESON: Was that said in the meeting?
HOPWOOD: I --
JAMIESON: "Rachel has put herself forward"?
HOPWOOD: I can't remember if that was said. It might not -- I can't remember if those words were said.
JAMIESON: Well, that's important clarification that you give. Please may that come down. But the impression that you had drawn from the process -- I listened to your words as you were giving evidence before, the impression that Mr Harvey had given you was that we need to be seen to have this role, that it was about appearances rather than substance?
HOPWOOD: I think, I think that that was my view based on the fact that nobody could articulate to me what this role was.
JAMIESON: Yes. No, I am not suggesting anybody said that to you out loud, but that was the clear impression --
HOPWOOD: Yes, because I would expect a well thought out role to have clear terms of reference.
JAMIESON: And it's a powerful title, isn't it, Children's Champion?
HOPWOOD: It is a very powerful title.
JAMIESON: Was it expressed to you whether or not there was an expectation that you would speak to families or to children in the current role?
HOPWOOD: No, it wasn't and I'm not sure that at the time I would have -- I would have seen it through that lens, although obviously I am aware that subsequently particularly out of the Ockenden review that, you know where the role of the Children's Champion was discussed, that -- that was a constituent part of it but that obviously pre-date -- postdates this period. I think it was 2020 or between 2020 and 2022. But I don't think at the time I would have seen an NED role.
JAMIESON: I'm so sorry --
HOPWOOD: Sorry, a Non-Executive Director role as --
JAMIESON: For which your time commitment I think was three days a month --
HOPWOOD: It was, yes.
JAMIESON: And you had a number of other duties to fit into that period of time?
HOPWOOD: No, I just don't think I would have seen a Non-Executive Director role as being the primary communication point with parents.
JAMIESON: No, quite. We agree, if I may say so. Similarly a Non-Executive to be the primary conduit of information from the clinicians?
HOPWOOD: Yes.
JAMIESON: If I may say so you have said a number of times you have drawn attention to the fact that you yourself have no clinical background, so a non-clinician NED to be the main conduit of information and concerns from the clinicians on the NNU to the board, you were never a person who was going to be suitable for that role?
HOPWOOD: Yes, I think -- I think I said that.
JAMIESON: Yes.
HOPWOOD: I didn't have a clinical background so I couldn't see that I was credible to the paediatricians.
LADY JUSTICE THIRLWALL: Yes, you did say that. MR JAMIESON: May I finally just ask you one factual thing to tie up a loose end. You have mentioned in your statement what we have come to know as the Brigham review that was presented to the December 2015 QSPEC and you have drawn some reflections about some of the contents of that document?
HOPWOOD: Yes.
JAMIESON: The Inquiry has received evidence that when that document was presented to QSPEC, it was expressed by Julie Fogarty, the Head of Midwifery. She said out loud that this is a document that only deals with obstetric care, it does not deal with neonatal care although it's fair to say that that is not within the minutes of that meeting. You were in that meeting. Did you come away with that impression that that document dealt only with obstetric care?
HOPWOOD: No, I don't, I don't think -- I don't think I did. And I don't think I would have done with something that was headed up -- I think the NNU.
JAMIESON: Yes, the document has a misleading title?
HOPWOOD: Document headed up and I don't think -- I don't think I would have made the distinction between the two groups. MR JAMIESON: Thank you. My Lady that was the third topic with the other witness and it occurred to me I should probably deal with it here.
Thank you very much, those are all my questions.
Questions by LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: Thank you, Mr Jamieson. No other questions? May I just ask a couple of questions, if I may. Going back to a quite different topic but early on you said that you had been recruited for your financial background and I think one or two others had a similar sort of background and you mentioned that there were multiple cost improvement plans and it was a time of financial pressures. So is a cost improvement plan a cost reduction plan?
HOPWOOD: A cost -- I am trying to think -- it was CIP trying to think what the CIP stood for. It might have been Cost Improvement Plan?
LADY JUSTICE THIRLWALL: What was the effect of it, was it to try and reduce costs?
HOPWOOD: Yes, I mean I think in the context of the hospital that I recall, the Trust, when I first joined the Trust in 2011 it had been a period of surpluses and we went into -- I think very common with the sector -- a period of cost challenges. So that meant a deficit --
LADY JUSTICE THIRLWALL: Yes.
HOPWOOD: -- as opposed to a surplus so there was a lot
of pressure in terms of making -- making the budget balance. There were a lot of winter bed pressures. There was a lot -- the commissioning landscape had changed, I think, 2010 and so there were a lot of -- a lot of changes and focuses in terms of changing across the Commissioners' landscape. There was social care pressures, A&E targets, bed pressures, it was a very, very busy hospital.
LADY JUSTICE THIRLWALL: Yes. Thank you. But the gist of it is that there had been surplus and now there was deficit.
HOPWOOD: Yes.
LADY JUSTICE THIRLWALL: That had to be sorted out by reducing costs, is that how you -- did you have to reduce costs?
HOPWOOD: Well, all of a sudden there was great pressure, it was would either be reducing costs or looking for other income streams.
LADY JUSTICE THIRLWALL: One or the other, perhaps both.
HOPWOOD: Yes.
LADY JUSTICE THIRLWALL: I don't know. Thank you. Then would you just cast your mind -- we will find the document if we need to -- but it was the manuscript note that you had pointed out said something different
from that which was recorded in the printed minutes, do you remember? I think the reference is INQ0003332, page 23 which we looked at earlier. If this is not the right reference, perhaps we will work on memory. Yes. I think we can all hold in our minds what was in the minute and: "Mrs Hopwood asked that there are assurances that the report will not be leaked to the press ... Mr Chambers replied that this would form part of the conversations with clinicians where we will be very clear about the expectations." So his response appears to be directed to telling the clinicians that they mustn't leak it?
HOPWOOD: Yes.
LADY JUSTICE THIRLWALL: Had you said anything to suggest that your concern was that it would be the clinicians who would leak it?
HOPWOOD: No, no, I think -- I think my concern was genuinely -- it was through the lens of receiving it as a parent.
LADY JUSTICE THIRLWALL: How it would feel.
HOPWOOD: Not for who was going to leak it and in fact I believe in a subsequent meeting, you know, we were informed about, you know, where I think it was a solicitor who had leaked a document and that resulted in a great parental stress which had obviously been notified to the Trust. So I don't think I was coming through it from a who is doing it; it was from a receiving --
LADY JUSTICE THIRLWALL: Yes.
HOPWOOD: -- perspective.
LADY JUSTICE THIRLWALL: Thank you. One other thing -- you may not be able to help about this, but we know that in the early period between 2010 and 2015 there was a shift from three divisions to two. Do you remember that?
HOPWOOD: A shift from?
LADY JUSTICE THIRLWALL: Three divisions to two divisions: Urgent Care and Planned Care?
HOPWOOD: I can't say.
LADY JUSTICE THIRLWALL: It may be you don't know anything about it, that's fine. It only just occurred to me you might be able to help. Those are all my questions. Anybody have anything else? No. Good. Thank you very much indeed, Ms Hopwood, you are free to go.
HOPWOOD: Thank you.
LADY JUSTICE THIRLWALL: Is that a convenient moment to take the break.
MS BROWN: Yes, it is.
LADY JUSTICE THIRLWALL: And if we start at 10 to 4, are we likely to finish the witness by 4.30?
MS BROWN: I don't know if it is possible to have a 10-minute break, just to make sure, if that is suitable?
LADY JUSTICE THIRLWALL: We will take 10 minutes, so we will be back in at quarter to 4 please.
(3.34 pm)
(A short break)
(3.45 pm)
LADY JUSTICE THIRLWALL: Have we got Mrs Fallon? Yes, would you like to come forward?
MS ROSALIND FALLON (affirmed)
LADY JUSTICE THIRLWALL: Do sit down.
Questions by MS BROWN
MS BROWN: Could you please give your name?
FALLON: Rosalind Fallon.
BROWN: You provided a witness statement to the Inquiry dated 13 June 2024 and is that true to the best of your knowledge and belief?
FALLON: Yes.
BROWN: In terms of your qualifications, you qualified as a Registered Nurse in 1980 and a midwife in 1982 and worked in clinical roles until 1998. Did any of your clinical roles involve working on a neonatal ward?
FALLON: Not actually working on a neonatal ward but as a midwife, I worked very closely with the neonatal unit.
BROWN: Those were in hospitals other than the Countess of Chester?
FALLON: Yes, yes.
BROWN: Having worked in clinical roles you then moved into non-clinical roles within the NHS. In 2006 you obtained a Master of Science degree in Health Informatics and some of the roles you have held is 2007 to 2013 you worked for NHS Cumbria with roles as Deputy Director and the Director of Performance and Planning?
FALLON: Yes.
BROWN: April 2014 to December 2015 as the Director of Performance and Improvement at Liverpool Community Health NHS Trust?
FALLON: Yes.
BROWN: In terms of your role as a Non-Executive Director, you were appointed to that role at the Countess of Chester on 1 May 2016 and I think remained in that role until 31 January 2024?
FALLON: Yes.
BROWN: And that was your first appointment I think as a Non-Executive Director?
FALLON: Yes.
BROWN: From May 2016 when you were appointed until
after the police were contacted, so the period that this Inquiry is focused upon, you were the only Non-Executive Director with a clinical background or medical leadership experience on the board?
FALLON: Yes.
BROWN: In addition to attending board meetings, you sat on the Quality Safety and Patient Experience Committee, QSPEC, and also on the People and Organisational Development Committee?
FALLON: Yes.
BROWN: The time commitment for your role as a NED at this time was, I believe, three days a month?
FALLON: That's right, yes.
BROWN: Did you consider that period was adequate to fulfil the duties on the board and your committees and other duties you had as a Non-Exec?
FALLON: Well, I frequently did he more than three days a month but I had enough of my own time to be able to make that time up.
BROWN: So it took longer than three days?
FALLON: Yes.
BROWN: But you felt able to complete the work you needed to do it, albeit it took longer?
FALLON: Yes, exactly.
BROWN: In terms of the role of NED, you talk in your statement at paragraph 14 about holding Executive Directors to account the delivery of regulatory requirements. Were you also aware of the obligation under the NHS Trust Foundation Code of Governance that as a Board of Directors as a whole you were responsible for the quality and safety of healthcare services?
FALLON: Yes.
BROWN: That code sets out -- I am not going to go to it but the code sets out the roles of Non-Executive Director and uses phrases of "constructively challenge" and "scrutinising the performance of management"?
FALLON: Yes.
BROWN: Was that your understanding of what your role was?
FALLON: Yes.
BROWN: You say in your statement, and this is paragraph 16, that there was a potential tension between an Executive Director role and a NED role. Can you just expand a little by what you mean about that tension?
FALLON: I think at the time my -- my thoughts were that I had worked as an Executive Director in two organisations previously, so there's always a tendency to get into the operational detail and I recognise that I needed to not get into the operational detail but
actually be able to look at the whole picture and, you know, in order to be able to add value and constructively challenge.
BROWN: So you were clear in your mind of the distinction between the Executive role and the Non-Executive role?
FALLON: I was, yes.
BROWN: In terms of the atmosphere around the board table at the Countess of Chester, within meetings, how did you feel that operated in practice in terms of the communication, in terms of the ability for Non-Execs to participate, what was the atmosphere like within the boardroom?
FALLON: I think the atmosphere was professional. I always felt the opportunity if I needed to raise a question or -- or a challenge that I was allowed to do so. So I didn't see when everybody was round the table that there was an issue.
BROWN: You say, talking about that, this is paragraph 81: "I did not feel my presence on the board played to my strengths as a clinician." What did you mean by that?
FALLON: I think that whilst I was on the -- the Quality -- or the QSPEC as it was called then, I --
I suppose I wasn't consulted, if you like, sort of in terms of -- of clinical issues. Now, that could be my own inexperience as a NED and trying to really start to understand and try to be effective in that role which I recognise was -- could have taken some time. So I felt that once -- later, as I became more involved with other things, when I became the chair of the Quality and Safety Committee, when I became the Children's Champion, I really felt that my clinical background was more valuable then.
BROWN: There is a distinction of course between whether you felt that you were being listened to and respected as a clinician, albeit as a Non-Executive Director or whether you felt able to put forward your views which side of that was it, was it that you felt difficulty in putting forwards your views or that you felt you were putting forward your views and they weren't being listened to?
FALLON: No, I think I could put forward my views and I believe when I did put forward views, they were listened to.
BROWN: Just staying with this issue of relationships within the board and the atmosphere on the board, you say about Ian Harvey you did not find him easy to discuss issues with. Why was that? What was the
difficulty with Ian Harvey that you experienced?
FALLON: It's quite a difficult one to put a finger on, really, and -- but I felt that I didn't, I mean, I could ask questions in the board and I would get my answers in the board. I didn't get -- I didn't feel that I had an opportunity just to have some informal conversations with him that sometimes you get more -- you get a bit more detail than you might not get at the board to understand what the specific issues are.
BROWN: Because of course one problem that can be the discussion is that one side isn't listening to the other side and it's just whether that was your impression, that in fact you weren't being properly listened to in the boards?
FALLON: I wouldn't say I wasn't being properly listened to in the board. I just felt that the relationships particularly with Ian Harvey didn't develop as well as they have done with other medical directors that I have worked with subsequently. Now, some of that could just be my own experience as I have become more experienced as a NED as well as just personality types.
BROWN: What about with Mr Chambers, how was your relationship with him?
FALLON: Again, it was -- it was cordial but I didn't actually spend very much time with him outside, in fact I don't think I had, I had one meeting with him when I first started. That was the only one-to-one meeting I had with him outside the -- outside the board meetings.
BROWN: I think in terms of one-to-one meetings you discuss it in terms of training when you started that you saw -- you met with all the Executives individually and with all the NEDs individually?
FALLON: That's right, yes.
BROWN: But beyond those meetings, there wasn't any -- any formal training when you joined that you can recall?
FALLON: No, no.
BROWN: And --
FALLON: Sorry, I did -- there was a staff induction that they had for everybody that joined the Trust and I did attend the day of the staff induction training. But that was to anybody at the Trust, it wasn't specific to a NED role.
BROWN: Looking back now, do you feel there are training or was training that would have been helpful to you as a first time NED coming in?
FALLON: I think so, definitely.
BROWN: What would that training have been?
FALLON: I think how to constructively challenge more
understanding of the -- the organisation. I felt that I had to go out and find -- find the information for myself which then became more time-consuming, rather than understanding of -- of how the organisation worked. So I eventually understood how the committees worked but it was difficult to understand the -- the processes that actually brought the information to the committees.
BROWN: I think in relation to committees in terms of QSPEC, and this is paragraph 54 of your statement, you say you were unclear at the time of the obligations to attend meetings and maintain engagement with issues relevant to the committees or groups in between meetings, so this seems to be a bit of a lack of understanding about exactly the extent of your role. Clearly you had to attend the meetings of committees you were a member of, but beyond that there was some uncertainty in your mind?
FALLON: Sorry, could you just?
BROWN: Was there some uncertainty in your mind about what was expected of you as a member of QSPEC other than attending the meetings?
FALLON: Exactly. Yes, I didn't receive any induction into -- into QSPEC, I attended the meetings, read the papers and worked it out from there.
BROWN: Your meeting, or your individual meetings you had when you joined with all the members of the Executive Committee, was that something that you initiated or was that something that all board members were asked to -- to meet everybody else?
FALLON: I initiated it.
BROWN: In terms of safeguarding training with your clinical experience I think you say you were up to date with your safeguarding training; is that the case?
FALLON: Yes, I had had some safeguarding training in 2015.
BROWN: Given your safeguarding training and your role, your clinical experience as a nurse and then as a midwife, when the Consultants -- and we are going to go to the meeting but when the Consultants came to speak to you at the 14 July board, why looking back, we know that no one at that meeting did refer to safeguarding, but the Consultants were raising a concern about an adult, in this case a member of staff who they thought was harming babies and indeed was in a position where that could be an ongoing risk. Why is it, do you think, that that didn't immediately make you think in terms of safeguarding?
FALLON: I don't know the answer to that as to why I didn't, but when I've thought about safeguarding since
and realised that I should have considered safeguarding at that point, but unfortunately, I didn't.
BROWN: Related to that is I think you say that you hadn't received formal guidance on whistleblowing or Freedom to Speak Up but you were aware that a policy existed but weren't familiar with the detail. Were you familiar with the basic principles that one shouldn't be penalised or there should be no recrimination for speaking out and that if it -- if you were speaking out about a safeguarding concern, the LADO should be informed; did you have that understanding?
FALLON: I had an understanding around the -- the -- that one shouldn't be penalised for speaking up. I don't recall actually understanding the role of the LADO at the time.
BROWN: Again in terms of that meeting, which we will come to in a bit more detail, but you were faced with a situation where you physically had two Consultants who were in fact speaking to you and in fact talking about their concerns in relation to harm being done to babies. Again really the same question. Why do you think it was that you didn't think in terms of the Speak Up -- this is a Speak Up situation, I need to go and look at the policy to see what it says or raise are we applying the policy?
FALLON: I don't know.
BROWN: In terms then of the events. If we can go first to consider the meeting on 5 July. We know that there was a public board meeting then and we know at that public board meeting the issue of the neonatal unit wasn't raised, but thanks -- I misattributed to your colleague, but in fact it is your note that fortunately you made because that is what alerts us to the fact that there was a private NED meeting on, before I think prior to the board meeting, if we could have that up, it's INQ0102040. Can you in fact now recall that meeting, it will come up on screen but I am sure you are familiar with the note, do you actually have a recollection beyond the note of that meeting?
FALLON: No, I don't actually recall the meeting, it was only when I was doing the preparation work for the Inquiry and looked through my notebooks that I found that -- that note. I thought the first time I heard about the issue was a week later.
BROWN: Of course that note, it does talk about the neonatal unit external review, the reduction of level, the downgrading of the unit. It doesn't mention anything about a nurse.
Do you think if -- if an issue of a nurse potentially being linked to deaths had been raised in that meeting, that would be something you would have remembered?
FALLON: Well, I think for two reasons I would have remembered it anyway. I think I would have written it because whilst they are not detailed notes, they -- they capture the essence of it and I was very clear in my mind that the first time I understood the issue about the nurse was the following week.
BROWN: At the 14 July meeting?
FALLON: It was actually two days before that.
BROWN: Yes. If we can come to that in a moment. Just returning to the meeting on 5 July, can you recall, although you can't recall that meeting being aware -- made aware of the downgrading of the unit before the 14 July meeting?
FALLON: Yes, because we were told at that pre NED meeting.
BROWN: So you don't recall the meeting?
FALLON: Yes.
BROWN: But you are aware that you were told and you do recall you went into the 14 July meeting knowing that the unit had been downgraded?
FALLON: I knew, yes.
BROWN: Turning then to the meeting you are referring to on 12 July, just tell us how you came to be aware of the issue and the concerns about a nurse on the neonatal ward?
FALLON: Well, it was just a chance conversation as I was walking out of a POD meeting with Ed Oliver who was here this morning and Ed asked me, do you know what's going on in neonates? And I didn't, I can't remember the -- the verbatim but he told me he had heard there was an issue with a nurse potentially harming babies. So he asked me did I know anything about it? I had heard nothing at that point which is why I know I hadn't heard anything prior to then.
BROWN: I don't think he had a recollection but you recall I think then going to Sir Duncan Nichol?
FALLON: That's right. We went down straight away to see Sir Duncan and it was a brief meeting, I didn't take any notes of the meeting. But he did confirm basically that what Ed had heard was in fact correct and that he was going to call an extraordinary board meeting that week.
BROWN: At that point when you hear there's a concern about a nurse and a concern about a nurse being connected to deaths on the neonatal unit, did you
respond? For example, did you raise any concern about is the nurse still on the unit? Or can you not recall a discussion of that nature?
FALLON: I don't recall. I did know at some point but I don't know whether it was at that meeting or at the board meeting that she was actually on holiday, so she wasn't at work.
BROWN: Do you think if you had been aware that or felt that she was working that you that would have been an instinctive response you would have given or can you just not assist?
FALLON: I think if I had known she was still working I would have instinctively questioned it.
BROWN: If we can come then to the meeting of 14 July. So this -- you were aware of the issue about the nurse and you are aware at this meeting, did you understand that was going to be discussed or did you understand it was going to be focused on the downgrade or indeed all of it?
FALLON: I expected it to be all of it.
BROWN: We see from the notes of the meeting that Mr Chambers opens the meeting talking about the change in mortality rate. Then if we can go to page 4, so INQ0003238, and page, 4 so just to set it in context, the meeting has already discussed the neonatal unit, the mortality increase and the downgrade of the unit and Dr Brearey and Dr Jayaram are present and we have got a note there that Dr Jayaram stated what he was to say next was confidential and not to be minuted. Can you recall now and just give us an overview of the level of concern that Dr Jayaram and Dr Brearey were expressing and really what they were saying to you as a board?
FALLON: What they were saying was they had seen an increase in both unexplained and unexpected deaths, that they -- they talked about a number of reviews, they-- I think they said something along the lines of they had looked at everything that they could and that they had also looked at shift patterns and -- and found that there was a particular nurse that had been on duty for many of the shifts that babies had died.
BROWN: Then if we go to page 5, we see here that you pick up at the bottom: "Mrs Fallon stated that there is a point in time where a change in data can be seen and asked in terms of that member of staff how long they have been on the unit." Then Mr Brearey comes back and talks about competence. Going over the page:
"The individual has been praised by a transport Consultant during resuscitation ... inconceivable ... where there has been a competence issue". So it seems that the exchange, but please correct me if you can recall it, is that you were raising, was there an issue with the competency of this nurse, was she doing something negligently that could have been causing the death? Dr Brearey is saying no, it's not about competence because he would have expected that to have been flagged up?
FALLON: That's correct.
BROWN: That left presumably in your mind, if there had been doubt before that what Dr Brearey and Dr Jayaram were saying, is that the connection between this nurse is not competence which might be the most obvious and clearly was one of your concerns as a nurse that it might be that. They were saying, no, our concern is that this is deliberate?
FALLON: Yes.
BROWN: You understood that?
FALLON: I understood that.
BROWN: We see then Mrs Hopwood then brings up the issue about how practical it was for the staff member to work under supervision and Mr Wilkie picks up this theme and is concerned about the risk.
We know that actually at the end of that board meeting Mr Wilkie went on to the following day, because he was still concerned about it, to see Mrs Kelly. But at that board meeting it ended with the situation where Lucy Letby was going to be under supervision. In retrospect, was that something you should have challenged more thoroughly?
FALLON: Well, I think we have got a differing recall of the outcome of the meeting.
BROWN: Yes.
FALLON: I appreciate what Mrs Hopwood and Mr Wilkie said. But I clearly understood when we left that meeting that she wasn't going to go back on the unit.
BROWN: In fact, on the 14th we know from other documents that you won't have seen that Letby was being spoken to and at that point it was the intention that she was going back to supervised practice and it was a few days later that there was a change in view. But anyway your understanding at the time was that she was not going back to practise?
FALLON: That was my understanding.
BROWN: If you had understood she was going to practise, back to practise in a supervised nature, what would have been your response?
FALLON: I would have challenged it.
BROWN: On the basis of what? On the basis of practicality of supervision or --
FALLON: No, that if there was a question mark around her practice that until we got to the bottom of it, that she shouldn't work on the unit.
BROWN: So although no one was talking in safeguarding, you recognise that once there was a concern the right response was to take her off the unit?
FALLON: Yes, yes.
BROWN: The meeting then went on to discuss a few other matters. It discussed the police, and we see if we can go to page 8, Mr Cross outlined his understanding of what action the police would take if they were called to investigate the matter. Can you recall that? Can you recall Mr Cross explaining what would happen if the police were called?
FALLON: Well, this has been caricatured a number of times now, so I'm not quite sure whether --
BROWN: Just try and recall and if you don't have a recollection, that's your evidence. But do you recall --
FALLON: I do recall --
BROWN: -- at the time?
FALLON: -- a reference to we'd have tapes around and you wouldn't be able to get in the unit and there would be a huge disruption to, to the unit.
BROWN: Do you recall that at this meeting?
FALLON: Yes, yes.
BROWN: What effect did that have on you or on the board?
FALLON: I don't know what effect it had at that time because if that's what -- if we were as a board were absolutely sure that that was the thing to do, well, we would have had to do it. But I think there was doubt all across the -- not in terms of the, the suspicion but in terms of the evidence. There was doubt all across the room that we just didn't quite have the evidence to -- to do that.
BROWN: So, as I understand it, your recollection is the reason you weren't going to the police was more about lack of evidence in your mind than about disruption?
FALLON: Yes.
BROWN: Did you feel you were being, by Mr Cross setting this out, that you were being persuaded not to go to the police or was this just a factual statement of what he considered would happen?
FALLON: I think it was a factual statement.
BROWN: Then in relation to the RCPCH and their review
and, in fact, this is where all the Non-Execs focus on different issues and this is the issue that you focus on in the meeting and you focus on: what is the review going to look at? Now, obviously key to what the review was going to look at would have been the draft Terms of Reference. As far as you're aware, had you been shown prior to this meeting the draft Terms of Reference to consider?
FALLON: No.
BROWN: Can you recall whether you were in fact shown them? The notes are somewhat unclear about whether you were shown them at this meeting? Do you think you were shown them?
FALLON: No, I didn't see the draft Terms of Reference.
BROWN: You were asking a number of questions and we see there you asked if the external review would look at staffing. Then you ask if there was a direct correlation would they uncover this and then you refer to ask about the individual and how many of those babies involved had the individual been on shift for. Now, obviously there's two aspects of staffing: one might be are there generally enough staff, qualified staff on the unit and the other one might be are the RCPCH going to look at whether this nurse was responsible.
What did you understand the RCPCH report was going to do? Try to remove yourself from the knowledge of what it did, but what did you understand they were going to go in and do?
FALLON: I believe that I understood they were going to look at staffing as a whole. But the question I asked was: would it actually pinpoint if there was an issue with this particular nurse of which I think Mr Harvey said that as part of that process any issues will be outed. So I expected from that to -- if there was a direct correlation that we would get it from that report.
BROWN: I think that your recollection is borne out by: "Mrs Fallon asked if there was a direct correlation, would they uncover this?" And we see what is said in response: "Mr Harvey replied that as part of the process any issues will be outed and we will advise them of the supervision of staff as it will be part of the measures we have undertaken." Did you, regardless of what the note says, did you understand you were being told that yes, if there was a direct correlation they would uncover this?
FALLON: That was my understanding.
BROWN: If we can go then to INQ0003178. Just one matter. I'm not going to go back to the meeting, but that meeting ended with Mrs Hopwood saying that there should be another board meeting to review the situation.
FALLON: Yes.
BROWN: And we know, in fact, it wasn't reviewed at a board meeting until January?
FALLON: (Nods)
BROWN: How do you think that slipped through the net? Did you ask for another one, another board meeting, was that discussed when you were in the hospital at another time?
FALLON: I don't know how it slipped through the net. But I do recall that we had other -- there were some other conversations at some point through, through that autumn. Whether they were just updates on where the reviews had got to, but there ... Well, as you know, there definitely wasn't another board meeting, but I personally didn't go and ask for another board meeting.
BROWN: And you say conversations. You were presumably in the -- because you sat on several committees, you were in the hospital at other times and presumably came across your fellow Non-Execs and some of the board members at other times other than the meetings or would you only really meet at meetings?
FALLON: Well, both. We would meet, we would only meet at meetings in terms of we would only go into meetings. But whilst we were there we would have chance conversations, but I feel sure that -- because we discussed it at the Quality and Safety Committee on 19 September. Now, there would only be three Non-Executives at the Quality and Safety Committee, so I don't know whether the other NEDs that didn't sit on quality -- on QSPEC rather would be -- would have been appraised.
BROWN: And if we could just look at that meeting 19 September. If we go on to page 2, this is the meeting that Mr Harvey gives a verbal update and he explains that the review had recommended that the Trust commission a forensic review of the cases that sparked the external review in the first place, so carried out by two independent paediatricians. So it's clear that in fact, the RCPCH certainly hadn't established whether there was a correlation so your expectation hadn't been realised in that sense and in fact what was being suggested was something further was needed. At that point, did that cause you to rethink the approach and think, well, maybe at this point what we
need is an investigation by the police because the police had been referred to obviously on 14 July --
FALLON: Yes.
BROWN: -- and there is still an investigation. Did that occur to you at that time?
FALLON: It didn't occur to me at that point because I had expected the -- the report to have identified if there was correlation. It didn't. But what it did do was recommend these further detailed forensic reviews of case notes.
BROWN: And in the chronology, what happened next was the meeting of 10 January and if we can just call up INQ0003237. So this is the meeting where the RCPCH report was discussed and can you recall now whether it was at this meeting or prior to this meeting that you saw the RCPCH report, in what circumstances you were shown it and what version it was? There's quite a few questions there in one. But if you just tell us what you know about the RCPCH report?
FALLON: Well, to the best of my recollection, I went into a board meeting and received a paper which was the RCPCH report.
BROWN: Do you have any recollection about whether that report referred to Letby, referred to the nurse, had a section dealing with that?
FALLON: Well, I didn't actually get a chance to read the report because I was given the report when I went in, there was a very detailed discussion, I had to hand the report back when I left. So I -- I, if I'm being really honest, barely read it.
BROWN: Nevertheless, you understood that was the report that was looking at the issue about the neonatal unit and what it had -- potentially going to at least address the issue or the concerns raised about the nurse?
FALLON: Yes.
BROWN: You understood, presumably through the QSPEC, that in fact there was then a further report commissioned by Jane Hawdon and we see -- you may not have known it was by Jane Hawdon -- but a further report had been commissioned?
FALLON: (Nods)
BROWN: We see, if we go on to page 2 there, that that in-depth review in brackets had not yet been circulated. So as a NED, and you've explained that you understood it was your role to challenge, you are being then asked to make decisions, one of which was concerned with the return of the nurse to the unit and one of which concerned how the Consultants would be treated in terms of needing to make an apology and so on.
When you hadn't read the RCPCH report and when you hadn't seen the further review by Dr Hawdon, should you at that point have said, "We need time, we need to look at these documents" in order to be in a position to make, well, a very serious decision.
FALLON: I should have, yes.
BROWN: Just in fairness, Ms Fallon, I want to point out what was being said at this meeting. Mr Harvey, you see at the bottom of that first paragraph, he summarises the report, the Dr Hawdon report, and says: "The case reviews [that's the case reviews by Dr Hawdon] very much reinforce what is in the review [and that presumably is the RCPCH review]. It comes down to issues of leadership, escalation, timely intervention and does not highlight any single individual." Then Mr Chambers goes on to say: "Once we have received final four reviews from Alder Hey we can draw a line under this first part of the review." So we are going on to yet another layer. The RCPCH haven't concluded the issue, it's gone to Dr Hawdon and it's now going on again. So it's incomplete. But what did you think you were being told by Mr Harvey and Mr Chambers then about the involvement of the nurse? Do you recall feeling you were being informed about the concerns about that nurse?
FALLON: Well, I thought we were being told that the reviews had identified no concern around the nurse and that it was deemed she should go back on to the unit.
BROWN: Your acceptance of the decision -- we know of course she didn't go back on the unit -- but your acceptance that that was an appropriate approach for her to go back on unit and for the Consultants to apologise, that was based on your understanding that you were being told that there were no concerns about this nurse now?
FALLON: I was being told that there were no concerns.
BROWN: If we can just look at page 4 of that. This was the meeting as well where Mrs Hodkinson read out the statement from Letby, do you recall that?
FALLON: I do, yes.
BROWN: What effect did that have --
FALLON: Yes.
BROWN: -- or just sort of describe how that unfolded in the meeting?
FALLON: Well, it was clearly quite an emotional impact statement. I think the thing that concerned me more than anything was, well, firstly, that the Consultants had raised an issue and they were -- that was the right thing for them to do. We had made a decision for Letby
not to go back on the unit and that was the right thing to do. What was highlighted during that meeting, I can't remember whether it was during the statement itself or after, that there were references to individuals talking about making inappropriate comments such as "angel of death" in what I understood at the time to be a staff restaurant which I felt that, regardless of what the outcome of any investigation had been, that it's not an appropriate comment.
BROWN: So is it right to say that what you understood you were being told was the nurse wasn't involved. You were then read a letter, which we won't go to but does indeed refer to phrases such as "angel of death", "murderer on the unit" and so on. Is that why, and if we can look on page 5, does that help you to explain or can you explain your comment there: "Mrs Fallon referred to members of staff hearing some comments and that from the Board's perspective this is unacceptable behaviour from the Consultants."
FALLON: That's what I was referring to.
BROWN: So you are not referring to the behaviour about raising a concern. In fact, that was something they should have done if they had concerns?
FALLON: Absolutely. It was about hearing those
comments.
BROWN: Did you consider at this point, we know you didn't on the 14th, but did this cause you to think something's gone awry here because I have heard the Consultants and presumably in the 14 January you believed that -- 14 July you accepted their concerns to be genuine, and now we have ended up in a situation of the Consultants apologising?
FALLON: What I should have challenged at that meeting was why didn't we have the Consultants in the room and I believe if we had had the Consultants in the room at that meeting that it would have -- we would have had a totally different conversation.
BROWN: Then the next meeting was the meeting on 13 April and that was the meeting, I don't think we need to turn to the minutes of that, but that was the meeting where Mr Medland, the barrister, attended. And what did you understand him to be saying to the board at that point?
FALLON: Well, I understood he was invited to the meeting to give an expert opinion on whether we should, we should make a referral to the police. What I was hearing from him was he didn't feel that there was enough evidence. However, I can't remember now whether he had met with the Consultants before the
meeting or after the meeting.
BROWN: He had already met with the Consultants --
FALLON: Yes.
BROWN: -- before.
FALLON: So that was when he said the clinicians still believe that there's an issue and he made the recommendation then to initially approach the CDOP, police representative on CDOP.
BROWN: Yes.
FALLON: That I saw that then as the beginning of the process for -- for police referral.
BROWN: That process with the CDOP and then again, we don't need to turn to it, but we know there was then a meeting in May --
FALLON: Yes.
BROWN: -- when in fact it went from the CDOP and then it was very clearly going to the police?
FALLON: Yes.
BROWN: In the meeting, just staying with the meeting of 13 April, there is a note there in the minutes: "Mrs Fallon asked if we can get a timeline to speak to Dr Hawdon so we are clear when we can speak to her." At that point, why did you feel it was necessary to speak to Dr Hawdon?
FALLON: I don't think I necessarily did. When I looked back over the minutes and tried to think what did I mean at that time, I think I was using the word "we" in the generic sense as the Trust as opposed to ... So I expected the Medical Director along with the, the --
BROWN: I think there was a suggestion that Mr Medland asking her about what she meant by a forensic review and were you thinking that we needed to -- someone needed to speak to her about what she meant by that, or if you can't recall --
FALLON: Yes, I can't remember exactly.
MS BROWN: Yes, thank you very much. I have no further questions. I don't believe there are any other questions unless the Chair and my Lady has some questions for you.
LADY JUSTICE THIRLWALL: No, I have no questions. Thank you very much indeed, Mrs Fallon. I know you have been sitting there for what seems like hours and probably is hours, I don't mean there but over there, in the room. So thank you very much for coming and you are now free to go.
FALLON: Thank you.
LADY JUSTICE THIRLWALL: So we will rise now at 4.29 until 10 o'clock tomorrow morning.
(4.29 pm) (The Inquiry adjourned until 10.00 am, on Wednesday, 5 December 2024)
Witnesses:
Louis Browne KC: Barrister
Mr Alan Moore: Former Deputy / Senior Coroner for Cheshire
Helene Donnelly OBE: Ambassador for Cultural Change
LADY JUSTICE THIRLWALL: Ms Langdale.
MS LANGDALE: My Lady, may I call Mr Browne, King's Counsel.
LADY JUSTICE THIRLWALL: Come forward, Mr Browne.
MR LOUIS BROWNE (sworn)
LADY JUSTICE THIRLWALL: Do sit down.
Questions by MS LANGDALE
MS LANGDALE: Mr Browne, you have prepared a statement for the Inquiry dated 22 November 2024 and could you confirm the contents are true and accurate as far as you are concerned?
BROWNE: I do confirm.
LANGDALE: You tell us your educational background. You hold a first class honours degree in law and the postgraduate degree of Bachelor of Civil Law. You were called to the Bar in November 1988 initially commencing practice at the Chambers of David Harris QC in Harrington Street, Liverpool and then moving to Exchange Chambers, Liverpool, in January 2000 and you have practised from Exchange Chambers since that date. That's correct?
BROWNE: That is correct.
LANGDALE: You took silk in February 2017, and from 2000
until you took silk you were on the list of Treasury Counsel who represented the Government and you remained on that panel for silk work and were appointed as a Recorder in 2004 and sat in Crown and County Courts in that capacity?
BROWNE: That is correct.
LANGDALE: What's -- paragraph 4 and tell us now, please -- your particular areas of specialism in practice?
BROWNE: They fall predominantly into three areas: Personal injury claims of the utmost severity, so those are claims involving serious brain injury or serious spinal injury, Inquests and Public Inquiries.
LANGDALE: You set out at paragraph 5 the chronology of events we are interested in in the Inquiry, which is your instruction for an Inquest hearing for 10 October 2016 in the death of [Child A], a conference on 8 September booked in on 5 September, a further conference for 6 October and an Inquest which took place on 10 October and you say papers were returned on 12 October?
BROWNE: That's correct.
LANGDALE: Very briefly, can you just tell us the hours -- I think it's at paragraph 20, the time taken on those instructions and the work undertaken?
BROWNE: Yes. So it appears that I advised twice in conference. The first occasion was 8 September 2016, the second occasion was 6 October 2016 and then I represented the hospital at the Inquest itself on 10 October 2016 at Warrington Coroner's Court. In terms of the preparation for each of those conferences, I have taken that from the fee note which was sent out shortly after the conferences and that shows that in relation to the first conference it appears that my preparation time was three hours and the conference lasted one and a half hours. The 6 October conference was a telephone conference and it appears my preparation time was one hour 50 minutes and the telephone conference lasted 50 minutes. The Inquest itself, my preparation time was four hours and the Inquest lasted three and a half hours.
LANGDALE: Your professional relationship with the hospital prior to instruction in respect of the Inquest, and particularly with Mr Cross, and you deal with that from paragraph 17 onwards?
BROWNE: Yes.
LANGDALE: Can you tell us what that was, both the professional relationship with the hospital and any relationship with Mr Cross?
BROWNE: Yes. So far as work that I had undertaken on behalf of the hospital when instructed by Mr Cross, it appears that I represented the hospital when instructed by him on five occasions prior to the Inquest into the death of [Child A]. The 14 May 2012, which was a three-day Inquest and it appears that I was instructed for that in April 2012. The 19 June 2013, that was a three-hour Inquest, instructions received on 4 June 2013. The 7 October 2013 a one-day Inquest, instructions received in September 2012. The 11 November 2013, that was a three-day Inquest, I was instructed in May 2013. And on 23 August 2016, I advised by telephone. It also appears that I advised in conference on two occasions in December 2015 and on one occasion by telephone in January 2016 with Mr Cross and Mr Chambers.
LANGDALE: We don't need to ask you details about those matters or the names of those. You then say you have been instructed by Mr Cross in relation to a possible injunction in November 2012?
BROWNE: Yes.
LANGDALE: You say save for the instruction in relation to the Inquest into the death of [Child A], so far as you can recall, none of your instructions related to matters with which the Inquiry is concerned?
BROWNE: (Nods)
LANGDALE: In terms of Mr Cross what was your relationship -- professional relationship with him? Could he phone you directly to discuss case, did he do that regularly, irregularly, or how was it?
BROWNE: I thought I had a good professional relationship with Mr Cross and on occasion he might telephone me directly without my having been instructed to run an issue by me. On other occasions where more formal instructions were received he would contact my then Chambers' senior director, Tom Handley, and instructions would be received via Mr Handley, by which I mean Mr Handley would speak with Mr Cross, would identify the issue that my assistance was being sought in respect of and then the matter would be taken forward, either by Mr Handley making a booking, or by that being delegated to the clerks and instructions being received in writing.
LANGDALE: When you were actually instructed on the dates you have provided for us, in relation to the Inquest for Baby A [Child A], you were a senior junior who took silk in the February, I think, didn't you?
BROWNE: Yes.
LANGDALE: So you were still working as a senior junior
at the Bar?
BROWNE: That is correct.
LANGDALE: Would you have known of the appointment to silk that was happening in the February?
BROWNE: Did I know --
LANGDALE: Did you know, yes, at that time?
BROWNE: I knew the silk appointments would be announced in early January 2017.
LANGDALE: Right. But when you were instructed as a senior junior to do the Inquest, what did you understand you were instructed to do? Before you answer that, Mr Browne, if I make clear you say you have no recollection of the two conferences now but you have attempted with the notes of the conferences to put together what happened in them; is that right?
BROWNE: That -- that is correct.
LANGDALE: You also say you weren't given the notes we are going to go to approve but broadly -- and we can deal with the details when we get there -- are you content that those notes are accurate?
BROWNE: I have no reason to doubt the accuracy of the notes.
LANGDALE: So doing what you could around the notes, and with that caveat you state at paragraph 29, what were you instructed to do as far as you are aware in the
context of Baby A [Child A]'s Inquest?
BROWNE: Without the instructions and relying upon the notes of the conferences and the note of the Inquest, I expected I was instructed to advise at conference with the clinicians as to the purpose of an Inquest, what an Inquest was, what it was not, and to consider with them the records in relation to [Child A] and to consider the evidence with them and then to represent the hospital at the Inquest itself.
LANGDALE: You set out at paragraph 37 what you are sure you were not instructed to do. Would you like to tell us that?
BROWNE: Yes.
LADY JUSTICE THIRLWALL: Just while you are finding your place, I just wonder if I might check that people in the public gallery can hear the evidence? Yes. Sorry, Mr Browne, I'm sorry to interrupt you, I just was slightly concerned.
BROWNE: I will speak up a little bit.
LADY JUSTICE THIRLWALL: It is to do with the position of the microphones, they are obviously working, so that's fine.
BROWNE: Thank you. I'm -- based upon the work particularised in the fee note and the absence of any follow-up after
October 2016 with me, I am sure that I was not instructed to do any of the following: draft proofs of evidence for any witness from the hospital who was to give evidence, and in fact I had been reminded, having seen the statements that were provided to me yesterday from the clinicians, that those statements pre-dated by a substantial degree the -- my instruction. So they were in finalised form when I saw them. I was not advised -- I was not instructed to advise on the terms of any draft of any statement. I was not instructed to advise on any matter that was not directly connected with the death of [Child A]. I was not instructed to advise in relation to any matter concerning the appointment of Dr Jane Hawdon to undertake her review and that includes not being instructed to advise on the Terms of Reference for that review, or the Terms of Reference of any other review or indeed to advise on any other review whether in -- whether relating to reviews that had been undertaken or that remained to be undertaken. I was not advised to -- I was not instructed to advise on other neonatal deaths on the unit and how or why they had occurred, nor was I instructed to advise on any other matter. So -- forgive me, Ms Langdale. So put shortly, my role was solely in relation to advising in respect of the Inquest into the death of [Child A].
LANGDALE: Again, in the context of your instructions, were you told at any time there was any suspicion that [Child A] or any other babies in the neonatal unit had or might have been deliberately harmed by a nurse?
BROWNE: I am sure that I was not told of that.
LANGDALE: Why are you sure of that?
BROWNE: Because had I been told of that, I would have taken action and advised in respect of it.
LANGDALE: What would your advice have been had you been told that?
BROWNE: If I had been told that there was a suspicion that any nurse on -- on the neonatal unit had deliberately harmed babies, then I would have told the Trust in no uncertain terms that they must inform their own safeguarding unit of that and the police should be informed.
LANGDALE: You tell us in your statement at paragraph 41 of the relevant guidance for witnesses provided in the Good Medical Practice for Doctors including Inquests. We know, and we are going to come on to it, you met with some of the doctors. What's your understanding of the applicable guidance that you may or may not have imparted?
BROWNE: Well, I expected that the doctors who were to give evidence would give truthful and complete evidence. Whilst I may not have had in mind the NMC guidance or -- forgive me, the GMC guidance, it should not have needed repeating that witnesses who give evidence in court should tell the truth and the complete truth and so far as clinicians are concerned, they should comply with the duty of candour.
LANGDALE: But you didn't -- I mean, you have for the purposes of our statement, set that out, the relevant paragraphs, but that's not something as a matter of course that you would take doctors to in one of these pre-Inquest meetings when you are supporting clinicians?
BROWNE: No, I wouldn't as a matter of routine take them to the GMC guidance on that.
LANGDALE: What were the sort of general issues that you might state before we go to the specifics, when you are meeting doctors who are due to give evidence in an Inquest?
BROWNE: Well, typically I would explain at the outset that they would be required to give evidence and they would -- they would either take an oath and affirm and that would be a matter for their conscience and they would then be asked questions by the Coroner and then interested persons' representatives could also ask
questions. If there was a jury -- there wasn't at this case, if there was a jury, the jury might have the opportunity to ask questions.
LANGDALE: If we go, please to INQ0108406, page 3, we will see a note from a hospital paralegal at the time, Mr Joshua Swash, of the pre-Inquest meeting on 8 September 2016 --
BROWNE: Yes.
LANGDALE: -- between yourself and Drs Ogden and Wood? My Lady, we have short statements from those doctors too which we will read in at the end of this witness' evidence. So here we have a note, Mr Browne, of the pre-Inquest meeting which you have seen. And we see at the beginning at the top: "Adjustment of the line but as PM suggesting it had an impact"?
BROWNE: Yes.
LANGDALE: So we know Baby A [Child A]'s Inquest spent some time considering a long line insertion, that would appear to refer to that, do you agree, the long line?
BROWNE: Yes.
LANGDALE: Adjustment to the long line. Then this appears: "Was nurse involved in [Child A]'s care?"
BROWNE: Yes.
LANGDALE: "Re wider review where [Child A]'s death fit into the sequence." First of all, wider review. What did you understand was being referred to as a wider review?
BROWNE: At that stage, whilst I had not seen the neo -- the Thematic Review, nor had I seen the Royal College of Paediatrics review, I must have been informed that there had been reviews into neonatal deaths at the hospital but I can't recall precisely which review that references.
LANGDALE: Then we see below: "Sequence Nurse L, if yes disclose, disclosure to family."
BROWNE: Yes.
LANGDALE: And then: "Spike in deaths not just nurse [equals] disclosure." Can you help us with that, please?
BROWNE: Yes. That is advice that I will have given and it will have been based, so far as I am able to answer that -- this now, it will have been based upon information that I had been provided that the wider review had identified a spike in the number of deaths on the unit and that consideration was being given as to nurses who were on duty at the time of those deaths. Without sight of the -- of either the RCP report or the thematic review, at that time I wouldn't have been able to identify an issue regarding any particular nurse but I suspect for -- for the fact that I've referenced nurse or there is a reference to "nurse" probably indicates that I had been told that there was a nurse where there was consistency of -- that nurse being on duty at the time of some of these neonatal deaths. And I will then have advised: well, if that nurse was on duty at the time of [Child A]'s death, then that fact must be disclosed to the Family. And whether or not that nurse was on duty, the fact of a spike of, in deaths should be disclosed to the Family.
LANGDALE: If you go down to the next contribution: "Dr Ogden: short period of time from the birth until the patient died. Louis explaining Inquest thoroughly." Is that reference the hospital pre-Inquest pack?
BROWNE: It does seem to reference that.
LANGDALE: What is the hospital pre-Inquest pack? We have seen guidance offered to doctors. Was that part of this pack or what?
BROWNE: That -- at's all I have seen and I don't know whether that's the complete pack but it looks as though
that was likely part of the pack and that will have been what I have been referencing, I suspect but not having seen it recently, I couldn't, I couldn't confirm that.
LANGDALE: So was it, having advised on other Inquests, something you were familiar with, the hospital pre-Inquest pack?
BROWNE: Yes, I suspect that's --
LANGDALE: What's the messaging in that pack? You had read it presumably and satisfied yourself it was appropriate, had you?
BROWNE: Well, I will have read it at some point. Whether I read it in advance of this consultation I -- I can't recall. Without sight of it, it's difficult for me to say but I -- I expect it would explain what a Coroner's court was, it would explain the role of clinicians at a Coroner's court and nursing staff who were to give evidence. How much further than that it went, I just can't recall.
LANGDALE: It records here: "Coroner thinks issues are relatively discrete." What did you mean by that?
BROWNE: I understood what I meant by that was it was listed for half a day.
LADY JUSTICE THIRLWALL: A half a day, that is the first part of the sentence.
BROWNE: Yes, it was listed for half a day and that I considered was indicative of the range of issues which the Coroner was wanting to explore which suggested to me that they were in a relatively discrete compass.
MS LANGDALE: Did you see at any stage at the Countess the guidance to preparing written statements for doctors, was that part of the Inquest pack or not, was the Inquest pack about giving evidence or preparing witness statements as well?
BROWNE: It may have been, I can't recall.
LANGDALE: Can I ask you to have a look at this, Mr Browne. You may or may not recognise it. We can come back to this document. INQ0108392, page 1.
BROWNE: Yes.
LANGDALE: This is a general letter, do you recognise that letter or would you have seen that at the time or considered it appropriate, not appropriate?
BROWNE: I -- I can't recall either way whether I will have seen this or not.
LANGDALE: The guidance on written statements, INQ0008638, page 1 to 4. You have made it very clear that you weren't asked to advise on written statements but just looking at this guidance is this something you recognise in the context of your work for the Trust, take your time to read page 1.
(Pause)
BROWNE: Yes, I have read that, thank you.
LANGDALE: Page 2, there it's only four pages. (Pause)
BROWNE: Yes, thank you.
LANGDALE: Page 3? (Pause) I am particularly interested in the third bullet point: "Avoid criticism of colleagues other departments."
BROWNE: Yes, I note that this document says: "Your statement should be accurate and complete you must tell the truth and the whole truth."
LANGDALE: At page 4 if we go to the end.
BROWNE: Yes. Yes, thank you, sorry you were highlighting for me --
LADY JUSTICE THIRLWALL: Can we go back to page 3 so that the witness can finish his answer.
BROWNE: Yes.
LADY JUSTICE THIRLWALL: Under "Hints and Tips", is that the highlighted part you are referring to? Did you want to say something about that?
BROWNE: I don't recall seeing this. I wouldn't regard that as being a sound position to take in all cases. I can understand why that might be included but if there were -- if there was a case where a clinician or a nurse was criticising a colleague, or another department, for reasons that were connected with the Inquest I would expect that matter to be addressed.
MS LANGDALE: It does say, if we go back to page 4: "Do not leave out significant information." But as a standalone, the bit that was highlighted doesn't encourage openness, does it: don't avoid criticism of colleagues?
BROWNE: If -- if a clinician or a nurse was reading this document, and landed on that bullet point, then no, it would not necessarily encourage openness and transparency, I agree with that.
LANGDALE: But in any event you don't know if that was in their pre-Inquest pack now but they had -- this is reference to guides for writing statements. But in terms of advice you give in a meeting if we go back to INQ0108406, page 3, what's your general advice around that?
BROWNE: Well, I would -- I would normally begin, as I said, by explaining why all of the clinicians were there in conference with me and I then begin by explaining the purpose of the Inquest and I would expressly say: you will be required to give evidence and that will require you to take an oath or make an
affirmation, that will be a matter for you, and then I would move on to dealing with the sequence of questioning. I -- I would not routinely feel the need to tell a clinician or a nurse you must tell the whole truth. I -- I would expect that that would be a given.
LANGDALE: If we go back to this page 3: "Postmortem, page 9, re long line." Just below halfway down the page. "In summary ..."
BROWNE: Yes.
LANGDALE: "... [Louis] final page, CVL related to death, cannot say unascertained." Then it appears: "As long as we as a team don't contradict these findings, there shouldn't be a problem"?
BROWNE: Yes.
LANGDALE: Do you know who said that "as long as we as a team" or in what context that was said?
BROWNE: I -- I don't know who said that. I don't believe it was me.
LADY JUSTICE THIRLWALL: Ms Langdale, when you were reading that I think you said "Louis" and I can't see that. Or maybe you -- it's: "In summary, PM has failed ... " Then "Very important". Just so that I can understand, is that -- I assume that was an arrow: "Final page, CVL related to death ..."
MS LANGDALE: "... cannot say unascertained."
BROWNE: Yes.
MS LANGDALE: The "L -- final page", so do we think you said --
LADY JUSTICE THIRLWALL: You see that as an "L", thank you, I didn't see that.
MS LANGDALE: Is that L: "... Louis -- final page, CVL related to death, cannot say unascertained." We know that it was -- well, you tell us, you were there?
BROWNE: I don't think that is an "L", I think that's an arrow. Are you referencing what appears on the left-hand side of "final page"?
LANGDALE: Yes.
BROWNE: I think that's an arrow.
LANGDALE: So who's likely to be summarising the postmortem, "postmortem has failed"?
BROWNE: I -- I don't doubt -- there's no reason for me to consider that I wasn't addressing the postmortem findings.
LANGDALE: Right. Yes.
BROWNE: So I am not suggesting that that will not have been something I wouldn't have addressed.
LANGDALE: Yes, might you have said: "... CVL related to death, cannot say unascertained"?
BROWNE: Yes.
LANGDALE: Because that is --
BROWNE: It's likely --
LANGDALE: -- what was the subject of the Inquest hearing, wasn't it?
BROWNE: It was.
LANGDALE: The long line, could that explain the death or was it unascertained?
BROWNE: Yes.
LANGDALE: So whether that L is referring to you or not that would have been, as far as you were concerned, the issue?
BROWNE: Yes.
LANGDALE: You are meeting the doctors to discuss the issue and are you dealing with the long line issue there, or referring to it, can you remember doing that?
BROWNE: I can't recall doing that. But I have no reason to think I wouldn't, because as you say, that was a key part of the conference to consider potential causes of death.
LANGDALE: And you say the bit below, and it's not clear at all: as long as we as a team don't contradict these findings, there shouldn't be a problem?
BROWNE: Yes.
LANGDALE: Whoever said that, "a problem", what's viewed as a problem in terms of an Inquest?
BROWNE: Well, as I say, I don't think I said that. And the reason I don't think I said it, but forgive me, just to explain before dealing with the question, the reason I don't think I said it is because it's not something I would say. Secondly, this is a meeting of clinicians. I was not part of a clinical team, nor would I be giving evidence. So in the circumstances I personally wouldn't be doing anything to contradict the findings. Looking at it, and trying to interpret it now, it -- it might, it might mean that if clinician was seeking to give an explanation as to a cause of death that had not been raised they might be questioned about it and asked why has it not been raised earlier. But beyond that, I couldn't, I couldn't say why that's referenced.
LANGDALE: We see at the bottom of the page:
"Dr Ogden, first check. On first check, nothing to suggest that [Child A] had any problems. Needed a central line for nutrition necessary." We go over to page 4. Continued discussion --
BROWNE: Yes.
LANGDALE: -- of the long line. Then if we can go to page 5, please.
BROWNE: Yes.
LANGDALE: There's discussion there of staffing levels. Can you tell us -- I mean, I can see that and read that, we can perhaps expand that bit. But tell us what the discussion was there, please?
BROWNE: I will have been interested to and I will have wanted to know because the Coroner would have wanted to know whether issues regarding staffing levels had any part to play potential part to play in the death of [Child A]. So that would include issues such as the number of staff on duty and the skill mix of that -- of the members of staff on duty.
LANGDALE: So we see there: "Staffing levels and nursing and care given. No impact on his care."
BROWNE: Yes.
LANGDALE: Do you know who said that?
BROWNE: I -- I -- given that it features -- I think
I am right in saying -- in notes at a point in time when Dr Ogden is recorded as having been speaking, it may have come from Dr Ogden.
LANGDALE: If we see then that -- was it an arrow, was it an L? It looks like here it is an arrow, isn't it: "... potential impact on Dr Harkness, would have to ask him ..." Or would you have said anything, "potential impact on Dr Harkness"?
BROWNE: I can't recall, but I think that would probably reference potential impact on Dr Harkness and his evidence and a need for me to understand from Dr Harkness that doctor's perspective on staffing levels and care and nursing.
LANGDALE: So might that 'L' be "potential impact on Dr Harkness", you saying that; you need to ask him?
BROWNE: Yes.
LANGDALE: It could be Louis saying "potential impact on Dr Harkness, would have to ask him". We then get to the bottom of the page, if we can just highlight "Actions"?
BROWNE: Yes.
LANGDALE: It appears that you at the bottom say: "Would you be kind enough to identify relevant policies for neonates and are you able to send me [if we
go to the last page then, page 7] a copy." Then it says: "Check through medical notes re was nurse involved in care?"
BROWNE: Yes.
LANGDALE: So, first of all, do you remember requesting the policies, relevant policies for neonates?
BROWNE: I -- I did request them but I don't think those notes are notes that were made at the time when the conference was taking place.
LANGDALE: So these actions in a different pen you think have been made subsequently by Mr Swash?
BROWNE: I do. You will see on the first page of that note of conference that there's a reference I think to policies and protocols at the very top.
LANGDALE: On the first page?
BROWNE: I think on the first page.
LANGDALE: So page 3.
BROWNE: Yes. So in the box on the top right-hand corner "policies" underneath "protocols". So I will have asked then for those policies and protocols.
LANGDALE: Right. So if we go back to page 7, and we see then there is in red notes, red pen: "Yes, nursing notes 9 June, 9 June." Where those actions are followed through, it would appear?
BROWNE: Yes.
LANGDALE: Do you remember mentioning was nurse -- or asking "was nurse mentioned in care"? Was that something you would have said in the meeting or not?
BROWNE: Well, I will have wanted to have known that, that's why I was asking that what action plan be to consider; whether the nurse had been on duty I mean, looking at this recently, I note the date is 9 June 2015, I understand [Child A] in fact died on 8 June 2015. So these would be entries from the following day from but it matters not because I was being -- I was asking: was the nurse on duty, I was asking could that be checked and subsequently I was informed that she had been on duty.
LADY JUSTICE THIRLWALL: I think it reads "was nurse involved in care"?
BROWNE: Yes.
MS LANGDALE: If it assists, Josh Swash's statement, my Lady, at paragraph 24: "Regarding the note 'checked through medical notes re was nurse involved in care', I recollect being asked by Stephen Cross to examine the medical records of [Child A] to establish whether Lucy Letby was involved in the care of [Child A]. The red writing stating yes, and
the associated times and dates are referenced in the nursing notes which were attributed to Lucy Letby and therefore confirming her involvement in the care of [Child A]. I would have written the red part of the note on return to the Legal Services office when I will have reviewed the medical records." That can go down and if we can go to some emails now, please, Mr Browne. INQ0052593, page 1. If we look at the bottom email first.
BROWNE: Yes.
LANGDALE: "Dear Louis", this is from Joshua Swash: "Following on from our pre-Inquest meeting on 8 September to discuss the above Inquest, I have attached the policies that were mentioned in the doctors' reports ... infection, antibiotics and newborn life-support. I have also spoken to Dr Harkness who we would like to meet with. He is currently working at Alder Hey A&E and says if he is given dates he should be able to get off in order to have a pre-Inquest meeting." And then over the page, at page 2: "Stephen also asked me to get availability for a pre-Inquest telephone conference with a lunch time most likely to be a suitable time for this. Dr Jayaram and Dr Saladi have given me availability for this week and are available ..."
It gives various dates. "Finally, following on from our conversation prior to the pre-Inquest meeting on 8 September surrounding the nurse's involvement in the care of [Child A], having investigated the records I can confirm she was involved in the care of [Child A]. Stephen has suggested that it would be helpful if we could have a conversation with you regarding this issue this week if possible." So the conversation pre-Inquest meet about a nurse's involvement, can you remember anything about that conversation?
BROWNE: I can't and I have, I have not found anything in my diary to suggest I had a -- forgive me -- it refers to a conversation prior to the meeting. I can't recall any conversation prior to the first conference.
LANGDALE: Do you remember having one with Mr Cross, he having suggested it would be helpful if he could have a conversation with you regarding this issue?
BROWNE: I don't recall specifically having a conversation with him.
LANGDALE: We then, if we can go back to the previous page, page 1, the other email should be at the top of that page, so INQ0052593, page 1. This is an email that Mr Swash sends to Mr Harvey, on the 27th:
"Dear Mr Harvey, Stephen Cross has asked me to forward this email to you which I have today sent to counsel regarding the above Inquest and you will note that the nurse who has recently been moved out of the neonatal unit was involved in the care of baby [Child A]. You will also note that Stephen is going to speak with counsel about disclosure to the Coroner on this matter." We also -- do you remember at that time, ie after that pre-Inquest meeting, having a conversation about this?
BROWNE: No, I -- I don't recall that.
LANGDALE: About disclosure. We see the note about disclosure in the pre-Inquest meeting, but subsequently?
BROWNE: I -- I don't recall having any conversation with Mr Cross in which he informed me that the nurse had been moved out of the neonatal unit, nor do I recall being told that by anybody else at the hospital. Had I been told that, it would have led me to ask questions about it because it would have been important.
LANGDALE: We then go to the next conference you had, I think it was a telephone conference on 6 October, INQ0108406, page 10. In fact, perhaps we should look first at page 9 because that sets out who's there attending. Mr Cross, Mr Browne, Drs Jayaram, Saladi, Harkness, McCarrick. That seems to be Mr Swash's note on the left. And there's reference there, do you remember this, five lines down, it's underlined in red zigzag: "Louis Browne [plus] usually takes original records but away being examined". I think the first bit may relate to when they are meeting you but can you help with what was being away examined?
BROWNE: I don't read those, I don't read the two lines together. I think the first line is referencing transport arrangements for the doctors on the day and the possibility to meet with me on the day. And then the line below refers to plus usually takes original records but away being examined. I have never taken original --
LANGDALE: No.
BROWNE: -- medical records to any hearing, I wouldn't expect to be in possession of them so I don't -- I don't read those two lines as being related. But I don't recall that, I have to say.
LANGDALE: We know of course there were various reviews?
BROWNE: Yes.
LANGDALE: So it may refer to what the hospital was doing with the records but you have no recollection of being
involved --
BROWNE: I don't.
LANGDALE: -- with records? If we can go to page 10, then. We see at the top: "Listed for half a day. Coroner believes issues are relatively discrete. Insertion of line, replacement, did it have any impact?" Is this you? It says you explaining at the beginning and again with the assistance of the note, can you tell us what you said at the beginning of the meeting?
BROWNE: Forgive me, can you repeat the question, please?
LANGDALE: Can you, with the assistance of this note, tell us what you said at the beginning of the meeting? It appears to be you explaining the Inquest and the objective. Can you set out what you said here?
BROWNE: Yes, I -- I expect based upon my practice that I would have said the purpose of the Inquest is a fact-finding Inquiry to identify four limited questions, the answers to four limited questions. It isn't a trial, either civil or criminal. You have been asked by the Coroner to come along and give evidence. Before you give your evidence you have to take an oath or you affirm and that is a matter for your conscience
and then you will be asked questions by the Coroner and then possibly questions by the representatives for the other interested persons. It is not recorded, but that would be my normal practice.
LANGDALE: If we go over the page to page 11, we see what Dr Jayaram says, halfway down: "Still to this day Ravi doesn't know why this happened"?
BROWNE: Yes.
LANGDALE: "In 27 years in paediatrics never seen this kind of situation." This was over the telephone, was it --
BROWNE: It was.
LANGDALE: -- for Dr Jayaram? Do you remember him saying that?
BROWNE: I don't specifically recall that. But I have no reason whatsoever --
LANGDALE: So has everybody phoned in, or some of you in person and some phone in?
BROWNE: I will have done this remotely. I anticipate that the clinicians and the legal team will have been in the same room but I can't -- I can't recall.
LANGDALE: What's the advice just below that, attributed to you "Louis", what do you say there?
BROWNE: "If you don't know the answer say, no speculation, we can't say."
LANGDALE: Then "Family questions", what's that? Do you know what that note --
BROWNE: I don't, but to deal with the first point. I would routinely advise witnesses who were giving evidence at a fact-finding hearing, whether it's an Inquiry or a trial, that a court will be interested in the facts, not interested in speculation. So that would be not unusual for me to say that: if you don't know, say you don't know. As to Family questions, I -- I -- I don't -- but I suspect insofar as I can comment upon that that I was identifying that the Family may well ask questions.
LANGDALE: We know, and we don't need to take you to it, Mr Browne, Dr Jayaram did say at the Inquest he has to confirm the events that happened to [Child A] do not make any clinical sense to him at all. Do you remember now --
BROWNE: Well.
LANGDALE: -- him setting out that he didn't know, he didn't have an understanding?
BROWNE: I have no specific recollection of the inquest but it's quite clear from this note and from having re-read the note of the Inquest that Dr Jayaram has gone through a list of considerations that were operating on his mind as to potential reasons for the sudden deterioration. Has there been an acute haemorrhage? Could the line have gone into the heart? What was the reason for lack of response to CPR? And he didn't know why it happened. What he didn't say was that there was a potential sinister cause.
LANGDALE: Well, did you ask him when he said that, did you say: are you suspecting foul play or anything like that?
BROWNE: No, I didn't.
LANGDALE: You didn't ask him either?
BROWNE: I didn't ask him because I had no reason to consider that foul play was a potential cause.
LANGDALE: But he explains that he didn't know and he said in the Inquest he didn't have the cause of death, he couldn't clinically explain it. Dr Saladi, if we go to page 12, he says records here if the Coroner asks "how did it inform future practice?" Dr Saladi has given evidence, if the Coroner asks that kind of question and he referred to the Royal College of Paediatrics review. He says: "Pattern of deaths appear unusual, further enquiry required, forensic review."
Did you know this information before Dr Saladi gave it you here?
BROWNE: I will have known that the Royal College of Paediatrics had carried out a review. I -- I had not seen that review. And indeed until the disclosure yesterday of the final report which I understand was sent to the Coroner in January 2017, I had not seen that review but I will have been informed that the Royal College had considered that there was a pattern of deaths that appeared unusual and I likely will have known that at the 8 September even though I may not have known that the source was the Royal College. And that because of the view of the Royal College, a further review was required.
LANGDALE: We see here: "If review is outside of the remit of your knowledge, then say so. Don't say anything unless you know. Review is ongoing." So were you aware that the review was ongoing or some review was ongoing, but there were no conclusions from it yet?
BROWNE: I suspect I was aware of that. And -- and by this date, by 6 October, while I can't precisely remember the timeline, on that same day Mr Cross sent to me the letter of instruction to Dr Hawdon.
LANGDALE: Yes, we can go to that next, unless there is anything else you want to refer to there --
BROWNE: No, thank you.
LANGDALE: -- Mr Browne, I think we have gone to the references I sought to. If we go to INQ0053069, page 1, you see the email makes more sense actually to look at the bottom one first. This is an email first of all at the bottom from Mr Cross to Mr Rheinberg, where he says: "You will recall that in your absence I advised your deputy that the Countess was undertaking a review of neonatal deaths by the Royal College of Paediatrics and Child Health which was undertaken at the beginning of September and the Trust is awaiting their report. "The Review Team have indicated that they were entirely satisfied with the care within the neonatal unit and raised no concerns. However, they recommended that a detailed forensic Casenote Review of each of the deaths from July 2015 should be undertaken so consequently this is still work in progress." Over the page, please, page 2: "I have instructed Louis Browne of counsel in this matter and he is fully aware of the review and Dr Ravi Jayaram as the lead Consultant is also fully aware of
this matter. He is called to give evidence at this Inquest and will be able to answer any questions regarding the review." If we go back to page 1, Mr Cross sends on the same date to you: "Dear Louis, thank you for the case conference which was most helpful. "Further to our conversation regarding disclosure to the Coroner regarding the current review being undertaken at the Countess, please see email below. "I attach for your information our letter of instruction regarding the continuation of the review. I have not sent a copy to the Coroner but rather explained it in the email below and I copied Ravi into the email for his information." So you see the email that's been sent to Mr Rheinberg describing the RCPCH review as entirely satisfied with the care but requesting a detailed forensic Casenote Review. Attached to this for you at INQ0003101, page 1, I think is that letter of instruction; is that right?
BROWNE: Yes.
LANGDALE: Did you read that at the time?
BROWNE: Forgive me, did I read it at the time?
LANGDALE: Yes, did you read it?
BROWNE: Yes, I will have done.
LANGDALE: We see it says at paragraph 2: "The Review Team agreed that the pattern of recent deaths and the mode of deterioration prior to death in some of them appeared unusual and needed further inquiry to try to explain the cluster of deaths." Further down at D: "Details of all staff with access to the unit from four hours before death of each infant is one of the matters that were included that required investigation, although that is not something Dr Hawdon was able to do." When you looked at that letter, did you have any concern that there was suspicion around a nurse or some --
BROWNE: A suspicion that a nurse was deliberately harming babies?
LANGDALE: Yes.
BROWNE: Absolutely not. No. I will have read subparagraph D in the context of the Thematic Review that I had been provided with by that date and from recollection I think one of the recommendations of the Thematic Review was that there should be a consideration of precisely that issue.
LANGDALE: Did you get the Thematic Review with the copy
of a table, perhaps we can go to that email, which is also 27th of the 9th, so INQ0052602, page 1. So this is also the 27th: "Please find attached the documents we have disclosed to the Coroner regarding the ... Inquest." So the Mortality Review for [Child A], obstetric secondary review and a Thematic Review of neonatal Mortality 2015 to January 2016, which we take to be Dr Brearey's Thematic Review. Is that right?
BROWNE: Yes.
LANGDALE: Then a perinatal Mortality Morbidity Review. So you saw that on 27 September?
BROWNE: Yes.
LANGDALE: When you were sent the Mortality Review, did you have an appendix to it with names on and who was present at different --
BROWNE: I can't recall but I suspect I will have done.
LANGDALE: So you may have seen that table of names and who was on duty?
BROWNE: Yes.
LANGDALE: Was it a version with Lucy Letby's name in red or not? Can you remember?
BROWNE: Well, I -- I can't recall.
LANGDALE: Did you pick up on her name?
BROWNE: No, I can't recall ever having been given the name of a specific nurse at any time while I was instructed.
LANGDALE: When did you read of her arrest, when did you first know she had been arrested?
BROWNE: Again I can't recall precisely but I suspect it was at the time that became public.
LANGDALE: 2018?
BROWNE: Some time in 2018.
LANGDALE: Did you make a link in your mind at that time between this Inquest and that or not?
BROWNE: I didn't. Because there had been -- firstly, I suspect it was a very short -- it was a very short Inquest and meaning absolutely no disrespect whatsoever, in the context of Inquests that I was being instructed in, at the time it carried no additional significance to me because there was no indication whatsoever from anybody at the hospital that there was a suspicion that [Child A] had been murdered.
LANGDALE: When you saw the --
BROWNE: Forgive me, or -- or may have been deliberately harmed that led to his death.
LANGDALE: Did you regard the reference to a detailed forensic Casenote Review in Dr Hawdon's letter of instruction, the reference to a forensic Casenote
Review, did you -- did that raise any alerts for you?
BROWNE: It didn't. I would have interpreted forensic in the context of a letter of instruction as meaning a thorough review, having regard to the records within the scope of what she was being asked to do as the expert. But again, this was not a matter that I was being asked to consider expressly. It was part of the wider picture as to what the Trust were doing to deal with the findings as I understood them to be of the Royal College of Paediatrics.
LANGDALE: You say clearly in your statement at the end: "If at any time when I was instructed a member of hospital staff had told me of any concerns/suspicions they had that [Child A]'s death may have been caused by the deliberate actions of a nurse ..." You would have given the advice you suggested earlier. From the information that was given to you, were you able at the time to piece it together, that there were concerns that [Child A]'s death may -- the nurse may have been relevant to [Child A]'s death?
BROWNE: Forgive me, the nurse may?
LANGDALE: May have been relevant to the child's death in the consideration of the cause for the death?
BROWNE: No, there was nothing known to me that suggested the nurse was in any way responsible for that child's death. I -- having read the Thematic Review, I will have seen that in relation to cluster of deaths a number of them occurred in the early hours of the morning between 12 and 4 am, I think. [Child A] had an unexpected collapse at about 8.30 pm from recollection from the records. And there was simply nothing known to me, at the time, to suggest that any nurse had had acted in a way that might have caused or contributed to [Child A]'s death. I wanted to know about staffing levels. I wanted to know about what, what the skill mix was because one of the issues that the Coroner would need to explore was precisely that. If -- if there was culpable behaviour, not, not criminal behaviour but if, for example, there was substandard nursing care, it would be important for me it know that and it would be important for the Coroner to know that because I would have explored that with the witnesses and they -- a potential might have been to have asked the Coroner to consider obtaining evidence from that nurse or from colleagues. But that was never known to me and there was nothing available to me that would put me on notice.
MS LANGDALE: Thank you, those are my questions, my Lady. Mr Skelton and then Mr Baker have some questions.
LADY JUSTICE THIRLWALL: Thank you, Ms Langdale. Mr Skelton.
Questions by MR SKELTON
BROWNE: Good morning.
SKELTON: Mr Browne. I ask questions on behalf of one of the groups of Families, including of course Family A. Can I ask you just first of all -- and I don't want to go over ground Ms Langdale has thoroughly covered -- but you had done five Inquests, I think, for the hospital?
BROWNE: Yes.
SKELTON: Were those all direct instructions or were they via sort of NHSLA instructions?
BROWNE: From recollection, they were all direct instructions.
SKELTON: Why were the hospital directly instructing you as opposed to going via the conventional channel?
BROWNE: I don't know the answer to that, but I think as time went on, Mr Cross and I had what I regarded as a good professional working relationship. He would be able to instruct me directly because he was a lawyer himself working in the legal department of a hospital. But other than that, I -- I can't say.
SKELTON: In your chronology, paragraph 17, you mention
giving advice on the telephone on 23 August?
BROWNE: Yes.
SKELTON: Was that to do with [Child A]'s Inquest?
BROWNE: No.
SKELTON: It was a separate matter?
BROWNE: Yes.
SKELTON: So prior to getting your instructions, had you not had any contact with the hospital about the nature of the case that you were accepting?
BROWNE: No, I hadn't.
SKELTON: Was that standard practice again, that something would simply go in your diary and you would be told you are off to do a conference for an Inquest in a few weeks' time?
BROWNE: Yes.
SKELTON: As I understood your answers to Ms Langdale, you can't remember anything about the instructions at all; is that correct?
BROWNE: I can't. I have not seen them, they have not been provided to me and the evidence I have given both in my statements and this morning is based upon a -- my recollection from the notes.
SKELTON: How would those instructions have been received, via email to your clerks or directly to you?
BROWNE: I think they will have been received hard copy
because the return of them, the chronology I think references an earlier -- references the return of them on 12 October which suggested they were received in hard copy form and then they were sent back by one of my clerks.
SKELTON: So the standard procedure would be a folder?
BROWNE: Yes.
SKELTON: Or a number of folders plus a covering form of instructions?
BROWNE: Yes.
SKELTON: You and your clerks have been unable to locate those instructions because they would have been sent back?
BROWNE: Yes.
SKELTON: Can I ask you a bit more about the conversation you had with Joshua Swash on 8 September and can we go back, please, to the document INQ0108406. While that's coming up, Mr Browne, it is common practice, isn't it, to have a pre-meet conversation with those instructing you?
BROWNE: Yes.
SKELTON: In this case it's Mr Swash, he is the sort of instructing solicitor for these, for the purpose of that day's conference; that is correct?
BROWNE: Yes.
SKELTON: So before the con you have a meeting with him alone, do you remember doing that?
BROWNE: I -- I don't. I -- I don't remember Mr Swash, forgive me, I don't remember what he looked like. I don't know whether Mr Cross was present at that 8 September conference. I can't recall. I -- I don't think it identifies who from the Trust was present.
SKELTON: So you can't remember Mr Swash and you can't remember where it was?
BROWNE: I can't. I suspect it will have been at the hospital, I don't -- I don't recall it being in my Chambers.
SKELTON: Okay. And it's Mr Swash who I think mentioned the nurse and it's that conversation I think which is quite critical and you really must rack your brains as to what he said about it, if you can. But on page 3 you can see, just so we have it on screen, and we can try and anchor this again. "Was nurse involved in [Child A]'s care?" So why is a single nurse being mentioned in the context of [Child A]?
BROWNE: I suspect that I will have been informed that there had been a review -- reviews and that there was an investigation into a cluster of unexpected deaths and
one of the matters that the hospital were considering was who was on duty at the time of those deaths and in that context, I suspect that it was said that a nurse -- a nurse -- appeared to have been on duty at the time of some of these deaths.
SKELTON: So there's obviously some implicit concern there that she might have done something or failed to do something in respect of [Child A] and potentially the other children?
BROWNE: Yes, I was interested in that.
SKELTON: Where in the meeting do you pursue that interest --
BROWNE: Well, at that --
SKELTON: -- with Mr Swash or with anyone else?
BROWNE: At that stage I had no reason to because I knew no more than what I had been told about the reviews and of the concern. I was then told by Dr Ogden expressly that issues relating to nursing and care were not relevant to the care received by [Child A]. They were not, they were not causative.
SKELTON: I understand that point but there's a difference between staffing levels and overall care and a particular focus on a particular nurse who may be connected to [Child A] and the sequence of deaths. Is it your evidence that you pursued your interest in that by
asking questions of Mr Swash or Stephen Cross or anyone else about Nurse A's involvement -- this nurse's involvement in [Child A]'s care?
BROWNE: I will have wanted to have known whether that nurse was involved in the care and, if so, why that was relevant.
SKELTON: You do set in motion that question. You can see that written down. "If yes, disclosure to family", which I will come on to. The answer you get back at some point -- we will come to that as well -- was yes, the nurse was involved. But what about that second question that you have just put?
BROWNE: Where [Child A]'s death fit into the sequence?
SKELTON: No, the nurse's involvement with [Child A]'s death?
BROWNE: Yes.
SKELTON: What specific questions did you ask about that and of whom?
BROWNE: At that stage I didn't ask any questions because I was waiting for further information as to whether it was or was not relevant. I was told subsequently by Dr Ogden at that meeting that her involvement, if she had involvement, would not have been implicated because I was being told that the staffing levels and the nursing and the care delivered were not
impactful.
SKELTON: I will come back to that, if I may, when we get to the meeting, but for these purposes you were asking about a nurse but you weren't, there is no record of you saying what did the nurse actually do and there's no record of what you were told about what the nurse is alleged to have done?
BROWNE: No.
SKELTON: You can't remember either of those things?
BROWNE: Well, I can -- I can recall, what I can say with absolutely certainty is if anybody had said to me there was -- that it was suggested that any nurse had behaved in a way whereby they were deliberately harming babies, that would have been the first time in my professional career that that would have been said --
SKELTON: I understand that, and you say that repeatedly in your statement, and you have said it today?
BROWNE: But it is very important, Mr Skelton.
SKELTON: It is important but I am not asking you about that just yet. What I am asking you about really is: isn't the very fact that there is a nurse who is potentially involved in all of the sequence of deaths, isn't that fact itself significant and warrants your attention and potentially disclosure?
BROWNE: Well, I didn't know that she was involved in all of the cluster of deaths at that stage. I didn't know she was involved in any of the cluster of deaths from any evidence base. I was told that there was consideration being given to that by the hospital. I didn't know that. I didn't have any evidence available to me to establish that.
SKELTON: Why -- why were you saying that this issue to do with the nurse needed to be disclosed to the Family? What was triggering the disclosure, if there was nothing to it?
BROWNE: Because it -- well, it, it would potentially be relevant if there was --
SKELTON: How?
BROWNE: Well, if there was a nurse on duty at the time of [Child A]'s death and there was a suspicion, if there was a suspicion, that her care had not been adequate then the Family would need to know about that and the Coroner would need to know about that. But I didn't know at that stage whether that nurse had been involved in providing care.
SKELTON: I may as well ask this question now: it is the reality that the Family were never given any disclosure about the nurse at all?
BROWNE: Well, they should have been.
SKELTON: But as far as I can see this advice that you give on the first conference is not repeated later on and I wonder if you can answer why that might be the case?
BROWNE: I -- having worked with Mr Cross on a number of occasions, there had not been an occasion to my memory where he had failed to follow my advice.
SKELTON: So you were communicating this to Mr Swash and the expectation was Mr Swash would communicate this to Mr Cross or action it himself?
BROWNE: Yes.
SKELTON: Likewise, the spike in deaths, presumably you were very aware that a Family would want to know that they are part of a cluster of untoward deaths and they could therefore ask the appropriate questions at the Inquest about that?
BROWNE: Absolutely.
SKELTON: That needed to be disclosed as well?
BROWNE: Yes, it should have been.
SKELTON: Were you aware about the Coroner's request for a Serious Untoward Incident report?
BROWNE: I can't recall that I was.
SKELTON: I won't take you to it, because it will take far too long, but there is a series of emails and there is also a phone call to Mr Swash on 27 September in
which the Coroner is chasing or asking for a report to be produced and chasing it?
BROWNE: Yes.
SKELTON: There's also private correspondence he has with prior solicitors, who at that point represented the Family, about his frustration. Is it your recollection that you were unaware of the Coroner's request for a Serious Untoward Incident report into this child's death?
BROWNE: I was unaware of that and I saw that correspondence for the first time when I read the Coroner's papers yesterday.
SKELTON: Sorry, but at the time you were unaware?
BROWNE: I was unaware of it.
SKELTON: Because it's something again you would have advised on --
BROWNE: Absolutely.
SKELTON: -- and sought to ensure that it would have been disclosed?
BROWNE: Yes.
SKELTON: So far as the substantive meeting is concerned, Ms Langdale has asked you about this. You talk about the issues being relatively discrete and I think at that point the main concern was the long line insertion; is that correct?
BROWNE: Yes.
SKELTON: Why didn't you ask any of the doctors present about the nurse you had been told about by Mr Swash just before the meeting started?
BROWNE: Well, I clearly did ask about nursing care because it's referenced by Dr Ogden.
SKELTON: That's quite a different question though. If you ask them an open question: "is there anything wrong with the nursing care that you can recollect or was there anything about the nursing staffing levels?", that is a general question. But why didn't you ask the specific question of there is a particular nurse who is said to have been connected to these deaths, can you tell me anything about her?
BROWNE: Well, there are two reasons for that. Firstly, I was not instructed to consider issues more widely and with the benefit of hindsight of course the pieces of the jigsaw fit together that Letby was deliberately harming children. But that was not a matter that I was aware of or had ever been told. So the first reason is there was no basis for me to ask the clinicians about particular care given by a particular nurse because of a suspicion of -- of that nurse deliberately harming. But the second reason is in the context of this Inquest I had no evidence available to me to suggest that that nurse's conduct, whether viewed from a perspective of competence or from any other perspective, was called into question. I wanted to know whether that nurse had been on duty and I will have wanted to have known that so I could explore if it became relevant.
SKELTON: Why didn't you just ask the doctors?
BROWNE: Well, I -- because at that, at that stage I was being told that there was no issue with care. So clearly I did ask the doctors about the level of care being delivered by the nurses because it's specifically referenced by Dr Ogden.
SKELTON: Did you not think, though, that that very fact itself is quite significant. So you are told about a nurse's connection with the deaths, the sequence of deaths and in particular [Child A]. You ask about whether there is any question about the nursing care and you are told no. The next question is: well, what is it about this nurse that you are concerned about?
BROWNE: Well, at that stage, nothing other than the fact that the hospital had expressed to me that there was a consideration as to the involvement of a nurse in a number -- in -- in looking after a number of babies
who had died suddenly and unexpectedly and I was --
SKELTON: Was it?
BROWNE: Forgive me. I was probing to say: well, please let me know, was she involved? Where does it fit into the wider review?
SKELTON: Just before I move on from that meeting, was it apparent from Mr Swash's contact with you before the main meeting started, either implicitly or explicitly, that the issue to do with the nurse was not something to be dealt with in the open meeting?
BROWNE: No and I wouldn't entertain that. It's not how -- it's not how I have ever practiced and it will not be how I ever practice. I -- I don't -- I wouldn't tolerate private conversations where I'm asked to keep matters to myself and not share them. It's not how I work; it is not part of my professional duty.
SKELTON: Ms Langdale led you through the evidence about Letby being found or the nurse being found as having had contact with [Child A]. There's then a conversation -- or, sorry, contact with Mr Harvey who you will know is the Medical Director who indicates that you needed to be told this. So a decision by the Medical Director to tell you that the answer is yes, the nurse was involved.
Mr Swash sends two emails to you on 27 September, and I will quote it -- unless you would like me to bring it up again, but: "Finally, following on from our conversation prior to the pre-Inquest meeting on the 8th surrounding the nurse's involvement in the care of [Child A], having investigated the records I confirm she was involved in the care of [Child A]. Stephen has suggested that it would be helpful if he could have a conversation with you regarding this issue this week if possible." So you set in motion a request. You get the answer. At that point, the disclosure obligation that you have already indicated or advised on should have triggered shouldn't it?
BROWNE: Yes.
SKELTON: But instead they are saying: can Stephen Cross have a chat with you?
BROWNE: Yes.
SKELTON: Why did you think that was?
BROWNE: I don't recall -- I don't recall ever having had a conversation with Mr Cross because if we had a conversation about the issue of disclosure I would have reminded him what I had already said that both the Family and the Coroner should be informed. Not because it is potentially causative but because it seemed to be
a matter that they would, if I can put it this way, be interested in.
SKELTON: The same day you are sent the documents you have been asked about, the Mortality Review --
BROWNE: Yes.
SKELTON: -- the obstetric secondary review, the Thematic Review. As you are aware in this Inquiry there are unfortunately a number of different versions of the Thematic Review. Can I just ask you: you read it, as I understand it, as you would have done with all the attachments?
BROWNE: Yes.
SKELTON: The one dated 8 February 2016 or one of the versions dated 8 February has themes in it. Can I just put those themes in front of you.
BROWNE: Of course.
SKELTON: Thank you, INQ0003217 at page 7. So you can see there that there's a number of issues which are to do with clinical care that needed to be looked at. But the final bit is the timing of arrests: six babies had arrests between that time and then there is an action to: "Review all cases focusing on nursing observations in the four hours before. "Aim to identify if unwell babies could have been identified earlier. "Identify any medical or nursing staff association with these cases". So do you remember if you saw the version with that paragraph? I appreciate this is very difficult.
BROWNE: I can't, but I will have read carefully whatever version it was I received.
SKELTON: Well, within -- attached to this version is the appendix which does have the staff and in that [Child A], if we come on to page 9, please, so two pages on, you can see on the far -- the penultimate right-hand column care handed to Lucy Letby as being the nurse on duty. As you know, her name reappears in a number of the children's cases in the rest of this?
BROWNE: Yes.
SKELTON: Would you have picked that up, did you pick that up?
BROWNE: Well, I -- I don't recall ever having heard the name Lucy Letby until news of her arrest was made, I don't recall her being named as the nurse.
SKELTON: But the reason I ask is that Mr Swash had put you on notice that a nurse was potentially connected with [Child A] and the other deaths?
BROWNE: Yes.
SKELTON: You by this stage had asked for checks to be made to see if the nurse was involved?
BROWNE: Yes.
SKELTON: The answer had come back: yes. You are being given a table in which it's obvious which nurse is being talked about and [Child A] of course Letby's name is the very first one mentioned?
BROWNE: Well, with respect, it is not obvious because I didn't know that the name of the nurse was Letby. And it's also the case that there are five other nurses on duty, according to that roster.
SKELTON: There are, but if you go through this you will see that her name comes up far more than anyone else's?
BROWNE: But it is important I think to put into context what I was instructed to do. I was not instructed to enquire whether any one or other of these nurses was deliberately harming babies. Had I been told that there was any suspicion of that, my approach to advising and representing the hospital would have been fundamentally different. What I will have taken in part from this Thematic Review, that there's no suggestion of criminality on the part of any person in the review. It specifically says as I recall that there was no unifying theme to explain the spikes in deaths. So I will have read all of that.
I won't have focused on appendix 1 and looked at that name and thought: well, there may well be some issue there. I was being reassured that there was not an issue about the level of care provided by this nurse or any nurse and nobody indicated that there was a suspicion that that named nurse was deliberately harming babies. Had that been even remotely suggested, events --
SKELTON: But Mr Swash in the email I have quoted from is saying to you: the nurse that we talked about a few weeks ago --
BROWNE: Yes.
SKELTON: -- was in fact involved in her care?
BROWNE: Yes.
SKELTON: He is providing you a table in a review in which the nursing staff are set out. I just wonder why you are not trying to put together or understand why you are talking about the nurse. She's being raised with you repeatedly, but you don't seem to know why?
BROWNE: Well, I have asked the question: is there an issue about skill mix and the level of care delivered? I have asked the question that would, based upon what I knew at the time, be directly relevant to the Coroner's Inquest.
SKELTON: But it's still coming back, the issue is still
coming back. Despite your con that you have had previously, you now have data that shows there was a particular nurse and Mr Swash has checked the records. There is still questions about why you are being told this information and I am struggling to understand what you were told about the nurse and why they were interested in her?
BROWNE: I was told no more than I have set out. I understood that there was going to be a further investigation as to the events on the neonatal unit which went to the issue of the spike in the number of deaths.
SKELTON: As I understand it, you can't remember any conversations with Mr Cross at all?
BROWNE: No, I can't. And -- and if he had explained to me that there was a -- if I can put it this way, a suspicion of whatever nature about that particular nurse or any other nurse, I would have asked questions about that and I would have asked questions about it because it would have been directly relevant to the matters I was considering for the purpose of the Inquest.
SKELTON: He was present on the telephone conference. Was there no -- was there no pre-meet from that conference on the phone?
BROWNE: Not that I can recall.
SKELTON: You have checked your diary and so on to see if there's any phone call that you have had?
BROWNE: I have and there isn't.
SKELTON: As you know, and Ms Langdale led you through this, the two senior Consultants were there, Dr Saladi and Dr Jayaram are at that meeting and they -- Dr Saladi in particular raises the Royal College Review and also that a further review is going to go on, the forensic review which was Dr Hawdon.
BROWNE: (Nods)
SKELTON: Did you ask then them is there anything about the nursing care that was provided to this child that you are concerned about?
BROWNE: I can't recall asking that expressly. But by virtue of the fact that Dr Jayaram had gone through, if I might put it this way, a checklist of potential causes of a sudden unexpected deterioration, and hadn't highlighted any issue about any other matter on the unit, I wouldn't have felt it necessary to explore with him whether felt that a failure of one or more nurses might have been contributory to [Child A]'s death. I mean, I would also point out that -- that again at no stage did Dr Jayaram explain any concerns or suspicions.
But also he -- there was other material that he didn't tell me that I have now found out that might have been a matter that I would have wished to have explored. So, for example, issues of discolouration of the child's body. I would have wanted to have known if that had been if that was information I had been given. Well, does that help at all in understanding why there is a sudden deterioration? But I wasn't -- but I wasn't informed of that either.
SKELTON: It's fair to you, Mr Browne, I think, isn't it, that you would have wanted to know that the consultants were in fact concerned that Lucy Letby had killed [Child A]?
BROWNE: Forgive me, I didn't hear?
SKELTON: You would have wanted to know that the Consultants were concerned Lucy Letby had in fact killed [Child A]?
BROWNE: Yes.
SKELTON: Which had been raised explicitly in a number of meetings prior to this date?
BROWNE: Yes, and frankly I don't understand why I wasn't told it.
SKELTON: You could have been told that directly by Mr Swash, by Mr Cross or anybody?
BROWNE: I am absolutely sure that I was not told that
by anybody.
SKELTON: You were sent an email by Mr Cross directly, which included Jane Hawdon's instructions?
BROWNE: Yes.
SKELTON: Can I just ask you about that. I know you have touched on this already to some extent but you were, if we look at INQ0012066, just that second paragraph first of all. So they have -- it follows the Royal College Review and then it says: "The Review Team agree that the pattern of recent deaths and the mode of deterioration prior to death in some of them appeared unusual and needed further inquiry to explain the cluster of deaths." So there is something unusual about the pattern that needs investigation because you haven't they haven't got to the bottom of the causes of the children's deaths. It doesn't say anything about criminal suspicion?
BROWNE: No.
SKELTON: Although we know of course that that was in fact behind this, to some extent at least. Then in paragraph C underneath that: "Examination with the relevant paediatric pathologist at the postmortem findings and any additional information available on their files which
might identify cause of death including rare conditions such as air embolism and severe metabolic derangement", so they were looking for the unusual?
BROWNE: Yes.
SKELTON: You were aware of this, I think, by the time you had your meetings, weren't you, or certainly by the time of the Inquest?
BROWNE: I was aware that Dr Hawdon had been instructed to carry out that review.
SKELTON: If you just look at that information there, just in terms of the way that the review advice is summarised, that is information the Coroner needs to know, isn't it?
BROWNE: What, sub-paragraph (c)?
SKELTON: Well, the second paragraph in its totality contains information including that first bit I read out about the pattern of deaths, the mode of deterioration, and the unusual nature of them; that's something the Coroner needs to know, isn't it?
BROWNE: Well, my understanding is that the Coroner did know that there was going to be a further review to investigate the spike in deaths.
SKELTON: He did. But if we look at the email from Mr Cross, INQ0053069, so your email is at the top attaching -- there is something odd about the timing of this, which I know you have picked up in your statement but it does appear the Coroner was told something first and you were told afterwards?
BROWNE: Yes.
SKELTON: But I don't think it is a material difference. You are given the letter of instruction, which I have just taken you to, which contains that information I have focused on. Then you look down at Mr Rheinberg -- the email to Mr Rheinberg from Mr Cross. So he describes the review in paragraph 1, then he says: "The Review Team have indicated that they were entirely satisfied with the care within the neonatal unit and raised no concerns. However, they recommended that a detail forensic Casenote Review of each of the deaths from July should be undertaken, so consequently this is a work in progress". So he isn't being given the letter of instruction, Mr Rheinberg, and he isn't being given the reasons for the recommendation. And what I am putting to you is that those reasons are actually quite significant, do you recognise that? We have -- children are dying for reasons we can't determine and there's a pattern to it and a cluster. That is significant information for the Coroner?
BROWNE: In relation to the death of [Child A]?
SKELTON: Yes, because, I mean, you are being given this in the context of [Child A]'s Inquest, aren't you, there's no question of that?
BROWNE: Well, the wider context is the -- is the wider review. What I knew at that date was that Dr Hawdon had been instructed as per the letter of instruction.
SKELTON: That is not my question. My question is you are being sent by Mr Cross in the context of [Child A]'s Inquest the letter of instruction to Dr Hawdon and you are being told what the Coroner has been told but the Coroner hasn't been told the full story because Dr Hawdon's instructions contain more information that you are in possession of that he isn't?
BROWNE: Well, I am not sure that it would have affected the outcome but insofar as the obligation it provide the letter of instruction is concerned, if there was an obligation it would fall on the Trust, it wouldn't fall on me. I wasn't looking at this email correspondence and asking myself: should the Coroner have been informed? Should the Coroner have received a letter of instruction?
SKELTON: I am not putting that to you. I am just putting to you that there is a significant difference between the two pieces of information. You are being
told what the Royal College actually thought justified the forensic review, the Coroner is not?
BROWNE: I think the Coroner knew that there was a review because there was a pattern of unexplained deaths in the neonatal unit.
SKELTON: We will come on to the Inquest then itself. Dr Jayaram at the Inquest describes [Child A]'s care in detail, I won't take you through that, you are very familiar with it and you have seen the note from Pryers which I think is the fuller and more accurate account. The child had been stable, nothing to explain the sudden deterioration, timely resuscitation didn't work, which was unusual. There had been similar cases of other neonates dying and he mentions cryptically the potential issue with staffing but doesn't describe any concerns about anyone in particular and also mentions the independent review but there is no mention of the Royal College explicitly. What both he and Dr Saladi don't mention was the concern about a specific nurse; correct?
BROWNE: (Nods)
SKELTON: A in particular they definitely don't say that there was a concern, a suspicion that the nurse may have deliberately harmed [Child A], or the mechanism of how that might have occurred, air embolism, or the fact that
she may have harmed other children. None of those things were mentioned?
BROWNE: I absolutely agree, Mr Skelton, nor is there any mention that potential substandard care was implicated. So there is no reference to the quality of care being delivered by nursing as being causally connected with [Child A]'s death.
SKELTON: You don't ask any questions of Dr Jayaram --
BROWNE: No.
SKELTON: -- or Dr Saladi?
BROWNE: No.
SKELTON: You don't ask either of them to explain the nature of the Royal College Review?
BROWNE: No, I hadn't seen the Royal College Review. I -- I knew only that there was a review which was going to be undertaken by Jane Hawdon, and I knew why she was being instructed. That was as much as I knew about the Royal College.
SKELTON: You don't lead into evidence the Jane Hawdon review either in terms of what you knew about it. You knew her instructions and the reason she had been asked to review and you knew I think implicitly from Mr Cross's email that he was in fact going to look at [Child A].
BROWNE: There was no suggestion -- there was no evidence known to me or any indication that [Child A]'s death was caused or might have been caused by failures of medical and/or nursing staff or might/was caused by a deliberate act. And so in the circumstances, that -- that there is a wider context of the Trust asking Dr Hawdon to carry out a review into these cluster of deaths, I -- I -- I am not a clinician. I was there to represent the Trust at that Inquest and my focus was on the material available to me that was available to the Coroner, to understand how [Child A] might have come by his death. That was the focus of my --
SKELTON: I understand that.
BROWNE: -- my -- my role and my instructions. It was not to go beyond that --
SKELTON: But why -- when Mr Cross sent you Dr Hawdon's instructions, why didn't you ask him: is she looking at [Child A]'s death as being one of these unusual deteriorations that can't be explained?
BROWNE: I don't know.
SKELTON: Why didn't you ask him?
BROWNE: Well, I had no reason to ask that question.
SKELTON: Well, you were sent it in the context of [Child A]'s Inquest --
BROWNE: Yes.
SKELTON: -- by Mr Cross so the obvious question is: is there investigation, a forensic Casenote Review of this child going on now?
BROWNE: Even had I asked that question and even if the answer was yes that is one of the deaths that's being investigated, at that point in time, where would that have led me? I had no information to suggest that there was going to -- that there was anything about any nurse on the unit or any clinician on the unit doing something that materially affected [Child A] and led to his death.
SKELTON: No, but what you could have said to the Coroner in front of the Family was: this child's death is now being included as part of a detailed forensic Casenote Review by a senior neonatologist and we await the answers to that. And that is information they would have wanted to know, both the Coroner and the Family?
BROWNE: Well, the Coroner knew there was to be this review. It would have been open to the Coroner, if he had wished to have done so, to have adjourned the Inquest until the review had been received. In fact, as I understand it, he had been invited to adjourn the Inquest by the solicitors then representing the Family of [Child A] a few days before and had refused to do so considering he had sufficient information available to him to answer the statutory questions.
Now, with the benefit of hindsight, should [Child A]'s Family have known about the Hawdon Review? Yes, they should. But I think the obligation to provide that information didn't come from me, it was very clear from what I said on 8 September that I wanted the Family to have disclosure of the detail, of the potential relevance of a nurse and of the spike in deaths. If I had considered there was other material that I thought they should have known, then I would have advised on that.
SKELTON: But you got to the Inquest, the evidence proceeds, you have no basis for concluding that the Family know anything about the concerns relating to a nurse and they certainly don't know anything about the instruction of Dr Hawdon which might relate to their own child?
BROWNE: Well, they should have done.
SKELTON: Those are both things that you could have and should have advised them?
BROWNE: The obligation to do that fell on the Trust. The Trust set up the review, I didn't set up the review. The Trust define the Terms of Reference for the review, chose the expert, drafted the letter of instruction to the expert and was paying the expert. The obligation to tell the Family was an obligation on the Trust, not on
me.
SKELTON: Well, the difficulty with that suggestion, Mr Browne, if I may say so, is that this is the only Inquest, this is the Inquest which takes place and once it's over, it's over, as you know: it can only be re-opened with order of the High Court. The Coroner is struggling to find out how this child died; that is what the whole Inquest was about. But you know that Dr Hawdon, an expert neonatologist, is about to undertake a review of that child's death which may or may not find out how that child died, including possibly by air embolism. As it turned out, that was the mechanism of death. The Coroner isn't fully aware of that. The Coroner and the Family do not know that investigations are still going on and those are obviously going to be relevant to the cause of death, aren't they, I mean, unquestionably?
BROWNE: Well, Dr Jayaram knew that the review was going on.
SKELTON: No, I am talking about your obligation?
BROWNE: Yes, well, I don't consider I had an obligation at that stage to advise. In retrospect, do I wish that the Family had been informed? Of course I do. But as matters stood at the time that I was representing the Trust, what -- what I knew was what I was being told by the clinicians and what I knew from the postmortem and at that stage there was no suggestion that there was a sinister cause for [Child A]'s deterioration and death.
SKELTON: I understand that, but the obvious risk was that Jane Hawdon can finish her investigation and find a cause of death which would mean that the Inquest had proceeded on a wrongly informed basis and that risk was a risk that you needed to address?
BROWNE: I don't accept that. I don't accept that was a risk I needed to address. I didn't know precisely what the parameters were that were going to be considered by Dr Hawdon and so --
SKELTON: Well, you did from her instruction, it was exactly what was set out. I have just read it out to you?
BROWNE: She is not being asked to investigate the potential for suspicious activity.
SKELTON: She is being asked to find the cause of death --
BROWNE: Yes.
SKELTON: -- which includes rate conditions such as air embolism?
BROWNE: To try to find a cause of death and as matters
transpired, she couldn't find one, as I understand it.
SKELTON: No.
BROWNE: So even had I -- even had I suggested that the Inquest be adjourned pending Jane Hawdon's review, it wouldn't have assisted because that review didn't tell us anything more about [Child A]'s death than we knew at the time of the Inquest.
SKELTON: But you must also have been aware that they knew nothing about the nurse because it never gets raised at the Inquest?
BROWNE: I didn't know that they didn't know nothing about the nurse. I had given advice, clear advice that that was to be disclosed. I had a relationship with Mr Cross, whereby I expected that he would act on my advice. I had that expectation because he had not -- he -- he hadn't failed to do so before. So I assumed that he would have informed the Family of that. It's not something that was necessarily needed to be raised at the Inquest but I would have assumed he would have acted on my advice.
SKELTON: Mr Browne, just stepping back and considering, you represent families, I know, at Inquests?
BROWNE: (Nods)
SKELTON: They are going in trying to find out why this child died and they are suspicious about it because they
have already intimated a civil claim. So they think something untoward has happened, they obviously think it's inadvertent harm as opposed to deliberate harm at that point. But there is an awful asymmetry between the knowledge that you have and your clients had and what they have. The knowledge that you have is that there is something going on with a nurse that is causing concern, that's being looked at, there is a connection with between her and the sequence of death, which includes [Child A], you have been told that explicitly and there is further investigation on forensically of [Child A]'s case which they don't know about. That asymmetry of knowledge needed correcting by you at the Inquest and you should have done it?
BROWNE: No, Mr Skelton, if there is asymmetry of knowledge, the asymmetry of knowledge is between the clinicians and the Trust on the one hand and the Coroner, the Family of [Child A] and me on the other. The Trust knew of the suspicions of the clinicians that a nurse was deliberately harming those children. Neither the Coroner, nor the Family of [Child A], nor I knew of those concerns. That's where there is an asymmetry.
MR SKELTON: Thank you, my Lady.
LADY JUSTICE THIRLWALL: Thank you, Mr Skelton. We will take a 15-minute break now and we will start again at 5 to 12.
(11.40 am)
(A short break)
(11.55 am)
Questions by MR BAKER
LADY JUSTICE THIRLWALL: Mr Baker.
MR BAKER: Mr Browne, I ask questions on behalf of the other Family groups. You mentioned that you didn't hear or don't recall hearing the name Lucy Letby at all during the time when you were instructed in respect of [Child A]. Could I just ask for INQ0108406 to be brought on screen, please, and page 8. Sorry, page 9. Sorry, page 7. Forgive me. Sorry. Yes. This is part of a note made by Josh Swash of a pre-Inquest review meeting and it contains an action plan at the end, which makes a specific reference to Lucy Letby by name. Does that help refresh your memory as to whether her name was mentioned at any point?
BROWNE: No, it doesn't. It doesn't, Mr Baker, and these notes were not taken, as I recall, during the course of the conference. My understanding from the evidence is that Mr Swash went back to the office, checked the notes and on checking the notes, made that entry. So I have no recollection of knowing the name Lucy Letby before her name came to prominence in the press.
BAKER: In a different way, then, you had been provided with the Thematic Review, you had been provided with other documentation and there was mention of a single nurse being involved. In order to navigate your way around those documents and to understand them, would it not have been natural to ask: what is the name of this nurse?
BROWNE: The -- the name, there were many other names referenced on appendix 1 of the Thematic Review in connection with those other children who were within the cluster of sudden and unexpected deaths. The name Letby didn't stand out to me in the same way that none of the other --
BAKER: I understood that to be your evidence, but the notes are clear that there was a discussion around a single nurse being involved, so notes of the conferences taken by Mr Swash, by Mr Cross, again clear that you were aware that there was an issue in relation to a single nurse being involved. Now, to make sense of the Thematic Review and the
other documentation, would it not have been natural to ask: what is that nurse's name so that I can cross-reference it myself?
BROWNE: Well, when I went through the appendix, as I will have done, I will have noticed that Letby's name was mentioned in relation to a number of the children, but I will also have noticed in relation to other children she wasn't referenced and bear in mind at this stage, I repeat -- forgive me for doing so, but I repeat, the other names referenced in appendix 1 are children who tragically died, meant only to me at that stage that they were part of a cluster of Sudden and Unexpected Deaths. It had no wider significance for me either in the context of the review overall or in the context of the death of [Child A].
BAKER: If you were told that there was concern or some relevance in the commonality between a single nurse and a number of cases or indeed all of the cases that were considered to be part of the spike, what explanation could you have thought of as to the relevance of that involvement, other than that there may be some questions of competence surrounding that nurse or the more extreme end of the scale: some suggestion of deliberate harm?
BROWNE: I don't recall ever being told that there was
a concern over a nurse in any respect. Insofar as I have a recollection, my recollection is that the hospital had identified that there was a nurse who had been on duty at the time of a number of these neonates' deaths. And in the context of that information, at the first pre-Inquest conference, I wanted to know whether that nurse was on duty at the time of the death of [Child A] because at that stage I had not seen the Thematic Review and I wanted to know where that fell in the spike of deaths.
BAKER: Well, I -- I won't go over the documents and the emails again but the action plan we have on screen involves Joshua Swash going off and investigating whether the single nurse was involved in this case, ie the one who had been associated with the deaths that were being investigated. And he has written "Lucy Letby", it may be because he wrote that afterwards or because her name was mentioned. But that was followed up in an email that we were taken to -- the Inquiry was taken to, where you were informed that that is the nurse who is involved in this case as well?
BROWNE: That a nurse -- a nurse -- had been on duty at the time of [Child A]'s death.
BAKER: Well, it's obviously the relevant nurse. It's a relevant nurse, it is not just a general nurse. It is a relevant nurse who is common to the other cases, that is the obvious implication from the notes?
BROWNE: As I recall, what appendix 1 actually says was that the care was handed over to her at 2000 hours and the child had a sudden unexpected collapse shortly thereafter.
BAKER: Yes.
BROWNE: That is what I knew, but there were other nurses on duty and, at that stage -- by "that stage" I mean when I had the Thematic Review -- I already had my first conference and I was shortly thereafter to go into the second conference. But I had been reassured at that first conference that there was no issue about nursing care, et cetera, that was involved in the death, was implicated in the death of [Child A]. That is what I knew on 8 September. Having re-read -- having read the Thematic Review when I received it later that month, there was nothing further in that Thematic Review that led me to probe that any further so I was not being told by any nurse that there was an issue, not being told by the clinicians that there was an issue. So the evidence I had at that stage was that Dr Ogden, in response to questioning from me, I suspect, had provided reassurance that there was no concern over the level of nursing care -- nursing or care or staff mix or levels that were involved in [Child A]'s death.
BAKER: This is, however, based upon your piecing together what's written down in the notes; you have no direct memory of this discussion?
BROWNE: I don't. But piecing together what's in the notes and based on my -- what my normal practice would be in the context of a death in hospital I will have wanted to have known whether there was any act or omission on part of the nursing or clinical staff that potentially in the context of a wider Coronial investigation, that potentially could be implicated in this child's death or that adult's death.
BAKER: And --
BROWNE: Forgive me, that is the context in which I will have been asking those questions. And whilst I have no direct recollection that is based upon my experience of having done a number of these deaths in hospital beforehand. That is what I will have been interested in.
BAKER: And again, sorry to go back to my earlier question, but in general terms, if there is a common link between a nurse and unexpected, unexplained deaths
can you think of another concern it would have caused you other than the possibility of incompetence or at the more extreme end, deliberate harm by that nurse?
BROWNE: Under no circumstances would it have entered my head at that stage to think that Letby or any other nurse was responsible for deliberately harming [Child A] or any other children. It simply was not on my radar.
BAKER: But to ask the question again: is there another explanation for that being a relevant issue that might be discussed other than concern about that nurse's competence or at the more extreme end of the scale, deliberate harm?
BROWNE: What might that be? If it's not -- if it doesn't go to the level of care delivered and go to their competence, and is not at the other end of the extreme scale deliberate harm --
BAKER: Yes.
BROWNE: -- I don't know what other issue that might go to.
BAKER: No, so the answer is there couldn't be any relevance in discussions surrounding that other than concerns regarding competence or?
BROWNE: I -- at that stage, I was -- I -- I did not consider for a moment based upon the information available to me.
BAKER: I understand your evidence around that.
BROWNE: Thank you.
BAKER: Your witness statement says you had no involvement at all after October 2016 in any of the cases relating to Lucy Letby?
BROWNE: Sorry, can you repeat that?
BAKER: You had no involvement beyond October 2016 in [Child A]'s case or indeed in any other issues relating to Lucy Letby?
BROWNE: That is correct, to my recollection.
BAKER: Could we go please to INQ0106817, please, and particularly to page 31. These are notes slightly less clear on this screen than they are on my page but on the right-hand page towards the bottom, there is an entry that is dated 6 February 2017. You will have to take my word on the date it is clearer on my version than it is here and it is a meeting between or involving Helene and Josh and it is at 11 am and it is a discussion regarding the legal position. This first entry is to contextualise the discussions that are occurring in the week of 6 February 2017. There is a reference here to a letter of claim regarding [Child D], there is a reference to Inquests, and it says "[Child A] done, cause unascertained". 10 October 2016. Then:
"Inquests for [Child D] and [Child O]. No Inquest for ..." That's a non-indictment baby. So there is a reference at the bottom: "Actions: Josh to prepare a schedule of Inquest claims, potential claims, SAR requests for neonatal report." If we go on to the following page, again, this note is less clear on this screen than it is on mine but there's a further note at the top it says: "Monday, 6 February 2017 continued." There is a reference to Sian Williams speaking to the Families, [Child A], [Child D] and a number of non-indictment babies. Then at 4.45, the next part down, there is a meeting with Tony Chambers and it's a neonates update meeting. If we go on then to page 34. There's a further meeting here which begins on Thursday -- sorry, Wednesday 28 February, reference at the right-hand page, it's about the third line down, begins: "Wednesday, 8 February 2017, meeting with Coroner". Can you see that?
BROWNE: Yes.
BAKER: Then the next meeting begins: "Thursday", halfway down the page: "Countess of Chester Hospital. Present Stephen Cross, SHL" and others. Then there's a reference just below I&S, it says: "Inquest update: SHL." And to the right of that: "Claire to speak with Rachel Exchange." Can you see that?
BROWNE: No.
BAKER: No, you can't, it's not clear on your screen?
BROWNE: Not at the moment.
BAKER: Just below the letters "I&"S, you will have to take my word for it, it says: "Claire to speak to Rachel Exchange."
BROWNE: Yes.
BAKER: Is Rachel at Exchange somebody you will be familiar with?
BROWNE: She was one of the clerks.
BAKER: So she was one of the clerks. There's reference again "Inquest update SHL". There's "Hill Dicks neonates". Above that, it says "C-2 email to Ian Benton re Coroner" and then "Countess brief to NEDs and governors" and to the right of that circled it says "Ring Louis", can you see that?
BROWNE: Yes.
BAKER: So it appears to be a note regarding over the course of several days discussions relating to Inquests including the Inquest into the death of [Child D] which was ongoing at the time and then later in the week, a further reference to Inquests and a reference to "ring Louis". Given that there is a reference to your clerk and Louis is a relatively uncommon name I'm assuming that must be a reference to ringing you?
BROWNE: I assume so.
BAKER: On the following page, again less clear on this screen than on mine, Friday, 10 February 2017, it says, first two words are "Rachel Exchange", they are clear on my page and then it says "MT", which I assume is meeting, and then it says "with Louis Browne". The next line is "Capito contract novation" and then it says "Neonates Hill Dicks (Richard NHSLA) and then it says "[something] for Sian" at the bottom of that, next to "I&S". So it would appear, wouldn't it, in the context of discussions regarding Inquests and neonates, during the course of this week, there is a reference to ringing Louis and then there is a meeting with you in February 2017. Would you agree that that's likely to be what occurred?
BROWNE: No, I have checked my diary for the entire period. I -- I saw this yesterday and I checked my diary for 2017. There is no record of my having had a meeting with Mr Cross or anyone else from Hill Dickinson about other neonatal deaths. In fact, I looked again at Mr Rheinberg's statement to remind myself of what he said about [Child D] to see if that jogged my memory and there is nothing in that statement concerning [Child D] -- [Child D]'s death and the progress of any investigations thereafter.
BAKER: When you talk --
BROWNE: Sorry, forgive me.
BAKER: When you talk about your diary, can you just say what you mean by your diary?
BROWNE: I mean, I have looked through the LEX system to identify if there is any meeting around that date with Mr Cross and the Trust and there isn't. There are --
LADY JUSTICE THIRLWALL: The LEX system is the software in your Chambers, is it?
BROWNE: It is.
LADY JUSTICE THIRLWALL: The electronic diary?
BROWNE: It is, my Lady. And furthermore I have no documentation at all evidencing the desire to have a conversation with me so I have never -- I have never
instructed there are no emails on the system that we have been able to find. As I have explained in the statement that show that I had that meeting, I have no recollection of it and based upon what I have looked at, I just -- I have no recollection of it taking place. But my -- insofar as I am able to say so, I do not believe that I was instructed to advise in any way in relation to any other neonatal deaths after [Child A].
MR BAKER: So if a solicitor or legal representative from a client telephoned you directly rather than speaking with your clerks, and said: can we have a conversation, a meeting by telephone, regarding a case, and you were to say: that's fine, I have a space in my diary tomorrow and we could have a conversation, it entirely bypassed the clerking system, would it be uncommon for that not to be recorded then in the LEX diary?
BROWNE: It would be uncommon for me not to bill for it if I had had a conversation of this nature and there is no record of my having billed for it. There is no record on the system of my having been instructed. If it's a conversation on a matter, so a solicitor rings me and wants to have a chat about they have a case in which whatever the issue, can we just have five minutes, then that probably wouldn't be diarised. But in circumstances where Rachel has been expressly mentioned as a contact, if this took place I would have expected that contact would have been made via her and a date would have been placed in my diary for that conversation to take place and there wasn't any date recorded.
BAKER: If advice or discussions were occurring on an informal basis as a potential prelude to being instructed in a case, would you always bill for those conversations?
BROWNE: Not necessarily, no.
BAKER: So the absence of billing in relation to it, the absence of a diary entry and indeed the absence of emails, because it appears to have been done by telephone, wouldn't necessarily exclude the possibility that a conversation had taken place, would it?
BROWNE: By itself it would not. However, as I say I have no recollection of that and there is nothing at all to indicate to me that a conversation about other neonates in February 2017 took place.
BAKER: You would, however, have been a counsel who the Countess of Chester knew, through your involvement in the case of [Child A], had knowledge of the broader issues, the RCPCH report, the Jane Hawdon report and so
would have been aware of you as being somebody who they might contact about this, hence perhaps "ring Louis"?
BROWNE: Well, there is a logic to that. But the fact remains that I have no recollection of it and there's nothing to indicate that that call was made other than this. Certainly no information was provided to me that I have been able to identify or locate to suggest that that conversation took place.
BAKER: Finally, paragraph 13 and 14 of your statement you describe meeting with Stephen Cross in the autumn of 2018 regarding a criminal matter which was hanging over the Countess of Chester Hospital.
BROWNE: Yes. I don't recall that meeting but the notes suggest that that meeting took place, yes.
BAKER: Yes, so there is a clerking note saying that it is being arranged and that the meeting took place?
BROWNE: Yes.
BAKER: Yes. You didn't bill for that meeting?
BROWNE: I have not been able to find any billing for it, no, and that would have been -- I am -- I am assuming -- I have no direct recollection of it, that that would have been a meeting in which Mr Cross might have told me of concerns he had. In the light of events that happened because by then of course Letby had been arrested this was three months after she had been
arrested.
BAKER: Yes, so she was arrested in July 2018 and you are not a criminal barrister?
BROWNE: I'm not.
BAKER: No, so you would not take offence at me saying you wouldn't be the first port of call for a hospital Trust in relation to a criminal issue?
BROWNE: I would not.
BAKER: Do you accept that this contact probably relates to Lucy Letby, given its timing?
BROWNE: Well, the reference I think specifically was to a criminal investigation hanging over them.
BAKER: Yes.
BROWNE: So yes.
BAKER: Yes. And that connection must -- contact was likely made because of your prior knowledge of issues or involvement in neonatal issues in the Trust?
BROWNE: I suspect it was because I had represented the Trust at the Inquest into death of [Child A].
BAKER: Does it not feel, though, part of more of a substantial continuum, the reference to "ring Louis" in February 2017, Stephen Cross being in touch with you following the arrest of Lucy Letby? I mean doesn't it feel like more of a part of a continuum than just simply an isolated link back to
an inquest you did, a half day Inquest in October 2016?
BROWNE: No, no, it doesn't. I would have distinctly remembered if there had been further instructions to me from the Countess of Chester Hospital from Hill Dickinson on their behalf in relation to deaths of neonates. Bear in mind the death -- the Inquest into the death of [Child A] was held in October 2016. A few months later, in February 2017, if I was being telephoned to discuss other neonatal deaths at that hospital, I would have remembered.
BAKER: Thank you.
BROWNE: Because I would have said: hang on, what, what's the issue with [Child D]?
BAKER: But your evidence to the Inquiry is that you never made any connection between [Child A] and the arrest of Lucy Letby but if you were having a conversation with Stephen Cross about the criminal charges hanging over the Countess of Chester probably relating to Lucy Letby in September -- sorry, October 2018, and you now piece it together in the way that you do, you must have made a connection?
BROWNE: I -- I didn't make the connection at that time. Or if I did, I have no recollection of it. Bear in mind that Simon Medland from Chambers had been instructed so there was -- there was an issue about his involvement. I don't know when he first became involved or when he ceased to become involved. But there was a connection that went beyond my representing the Trust at the Inquest into [Child A]. But I can assure you that I have no specific recollection of that meeting with Mr Cross in autumn 2018. It was a particularly busy time in my practice and I -- I made no note of it and was supplied with no note of it.
BAKER: Yes. You have had no contact with Stephen Cross since 2019?
BROWNE: No, not -- he telephoned me to let me know he was retiring and I have referenced that in the statement and subsequent to that, I have no recollection of having any contact with him.
MR BAKER: Okay. Thank you, my Lady, I have no more questions.
LADY JUSTICE THIRLWALL: Thank you, Mr Baker.
MS LANGDALE: No further questions from me, my Lady.
LADY JUSTICE THIRLWALL: Thank you very much, and I have no questions for you, Mr Browne. Thank you for coming to give your evidence and you are free to go.
BROWNE: Thank you.
LADY JUSTICE THIRLWALL: I think we are going to move to the next -- no, we are going to have some statements read, thank you. Statements read by MS BROWN
MS BROWN: My Lady, Dr Wood and Dr Ogden were asked to provide additional statements to the Inquiry to deal specifically with their evidence to the Coroner in relation to the Inquest of [Child A] and I will now read extracts from their statements.
Extract from the statement of Dr Christopher Mark Wood, dated 10 November 2024.
"I have been asked to explain my involvement in the Inquest into the death of [Child A]. My understanding of why an Inquest was taking place was that it was to investigate the cause of death which I vaguely recall was unclear.
"This was the first and only Inquest that I have attended. The pre-Inquest meeting and Inquest took place after I had left the Countess of Chester Hospital. "I recall visiting the hospital after I had left which must have been for this pre-Inquest meeting but do not recall any specifics of the meeting itself and have no written notes from this.
"I have been asked to consider the following specific events as recorded in the notebook of Joshua Swash. "I recall having a hard copy of the pre-Inquest bundle which I believe contained all the statements and medical records. I do not have a copy of that pre-Inquest bundle. "Whilst working at the Countess of Chester Hospital I recall being aware that the neonatal unit had a higher than usual mortality rate. At the time, I recall thinking that this might have been due to the types of patients being cared for, but as a junior doctor, would not have been involved in those discussions. I was not aware of any concerns regarding deliberate harm by a member of staff until they were in the media.
"I was not aware of any external investigations being undertaken into the mortality rate until they were mentioned by Dr Jayaram as part of the Inquest process. I do not recall ever having discussions with Stephen Cross, Claire Raggett, Ian Harvey or Louis Browne about this Inquest. I do not believe that I knew at the time who they were, only being aware of their identities now following media coverage.
"I recall that Joshua Swash was probably the Trust's representative from the legal department. I do not recall any discussions with him.
"I do not recall it being suggested by anyone, whether expressly or implicitly, that the Coroner should not be told about the concerns relating to Letby.
"I cannot comment on the attitude of Stephen Cross or Louis Browne in relation to the Coroner being made aware of the concerns relating to Letby.
"My understanding of Dr Jayaram's attitude in relation to the Coroner being made aware of the concerns relating to Letby is based on the evidence he gave at the Inquest. I recall the gist of his evidence focusing on how genuinely interested he was in getting to the bottom of what was going on. My impression was that he did not like being unable to give the parents and Coroner an answer about how Baby A [Child A] had died and he seemed to have a genuine willingness to look at all possibilities. I was not aware that he had any concerns about any specific members of staff, however.
"I am aware of Dr Saladi's name but cannot recall any details about his attitude in relation to the Coroner being made aware of the concerns relating to Letby."
Then he turns to the pre-Inquest meeting of 8 September 2016: "As recorded in Joshua Swash's notebooks, I attended a pre-Inquest meeting on 8 September 2016. I vaguely recall attending this but do not remember any detail. I have a vague recollection of colleagues attending, but do not know who. I believe that the purpose of the meeting was to support us as witnesses through the Inquest. This was the first and only Inquest I have attended. I believe we were told about the process at the Inquest that we would read our statements and then be asked questions about the medical care provided."
I will now read extracts from the witness statement of Dr Sally Rebecca Ogden dated 11 November 2024.
"Inquest into the death of [Child A]. "My understanding of why an Inquest was taking place was due to [Child A]'s death being unexplained. When I was asked to write my statement for the Inquest I believe I was given a copy of the medical notes for [Child A]. I recall receiving a communication inviting me to a meeting to prepare for the Inquest. I cannot now find what I presume was an invitation via email. I recall attending at the Countess of Chester Hospital and sitting in a room with a number of other junior doctors with whom I had worked on the neonatal unit.
"I believe the others that might have been present were Drs Lambie and Wood, but I cannot now remember. I have located a copy of the Inquest preparation pack that I believe I was given. I exhibit this. I have reviewed the handwritten notes of the meeting which I understand was made by Joshua Swash. This does not record those in attendance or the date. I recall someone was present from the Trust's legal team but I do not recall Joshua Swash, Stephen Cross or Louis Browne specifically. I do not recall making my own notes. I do not recall receiving any briefings from the meeting. I do not recall receiving any briefings before the meeting.
"I was not aware of any suspicions or concerns about a particular member of staff at that time. I was aware that there had been a number of deaths that were higher than expected for the unit but I was not aware of any issues beyond that, investigations being undertaken, for example.
"I left the Countess of Chester in September 2015.
"I only recall attending one meeting to prepare for the Inquest. I recall that the purpose was to explain the Inquest process, what would happen on the day and discuss the issues we might be asked about. My main involvement related to the insertion of a UVC.
"I do not recall the detail of any discussions I might have had with Stephen Cross, Claire Raggett, Joshua Swash, Ian Harvey or Louis Browne. I do not believe I knew who they specifically were. I do not recall it being suggested by anyone, whether expressly or implicitly, that the Coroner should not be told about the concerns relating to Letby. I was not aware of them at the time.
"I am unable to comment on the attitude of Stephen Cross, Louis Browne, Dr Jayaram or Dr Saladi's attitude in relation to the Coroner being made aware of the concerns relating to Letby."
Dr Ogden continues: "The focus of my evidence at the Inquest was the UVC insertion. It was mispositioned and I had asked a trainee to replace it. Most of the questions at the Inquest focused on the technicality of this. I have been provided with an email from Sarah Harper-Lea to myself dated 19 May 2016. The email trail begins on 12 April 2016 and asks for clarification on the UVC insertion. I reply with a clarification on 26 April 2016 advising that for the first insertion, both Dr Teresa McCarrick and I scrubbed to insert the line as I was teaching her how to do this and that I would therefore say it was inserted jointly. I clarify that the second was inserted by Dr McCarrick.
"The final email in the trail is from 19 May 2016 which attaches my statement for the Inquest and asks whether I have posted a signed version to the Legal Services Team. This is the only email that I have sight of in relation to [Child A]'s Inquest. At the time I was not aware of any suspicions regarding any member of staff."
Mr Swash, Legal Services Assistant at the Countess of Chester, was also asked to provide a statement to the Inquiry and again I will read extracts.
Extracts from the witness statement of Joshua Anthony Swash dated 12 November 2024: "I have been asked to explain my role as a Band 3 Legal Services Assistant (Inquests) at the Countess of Chester Hospital in July 2016. I started in that role on Monday, 6 June 2016 for induction, joining the legal team on Wednesday, 8 June 2016.
Mr Swash continues: "I was responsible for the day-to-day management of any Inquests that had been notified to the Trust. I was not specifically allocated Baby A [Child A]'s Inquest but would work on all Inquests involving the Trust. I understood that an Inquest was taking place because the cause of Baby A [Child A]'s death was unknown. The Inquest had been opened and notified to the Trust before my employment began.
"I do not recall being given any specific form of briefing about this Inquest. I do not recall ever receiving a briefing ahead of an Inquest but would receive the information and requests sent by the Coroner which we would then action to collate the required evidence and statements.
"I understood that Louis Browne was instructed by Stephen Cross. We normally instructed the Trust solicitors via the then NHSLA's Inquest Funding Scheme, it may have been that because this was a fairly last minute instruction that Stephen Cross decided to instruct Louis Browne. The Trust's approach to legal representation at Inquests was only to do so if the Family had instructed legal representation.
"Once it had been established that the Family of Baby A [Child A] had instructed legal representation as per the email of Denise Millard, the Trust would have then instructed legal representation. This is referenced in the email from Heidi Douglas. Stephen Cross knew Louis Browne personally. I do not know how.
"The first time I became aware of issues about Letby was when Stephen Cross asked me to check a set of medical records to see if she was involved. I cannot now recall the date and I do not know why this request was made.
"I was aware something was going on as it was discussed in the pre-Inquest meetings as described below. I understand that investigations were being undertaken into a rise in mortality rates on the neonatal unit. Having reviewed the available emails, I can see that I emailed Ian Harvey directly about Baby A [Child A] in Stephen Cross's absence. In this email I call him 'Mr Harvey'; I think that this was the first time I contacted him due to the formality of my addressing of him."
Mr Swash goes on: "I do not recall any discussions with Claire Raggett about Letby, the rise in mortality rates or the Inquest into the death of Baby A [Child A]. I would speak to Claire Raggett only as a go-between to speak to Stephen Cross. I wouldn't necessarily have recorded those discussions in writing in my notebooks.
"I have been asked to explain all discussions I had with Ian Harvey about Baby A [Child A]'s Inquest. I do not believe I had made Ian Harvey's acquaintance until 27 September 2016 when I emailed him at the request of Stephen Cross which forwarded an email that had been sent to counsel, Louis Browne, that day.
"The email also advised him that Letby had been involved in the care of Baby A [Child A]. I advised Ian Harvey in this email that Stephen Cross was going to speak with counsel, Louis Browne about disclosure to the Coroner on this matter. I have been unable to find any email response from Ian Harvey.
"I do not recall any discussions with Louis Browne outside of formal pre-meets. I would not have spoken to him directly as part of my role unless to make logistical arrangements. Any communication with him would have been by email. Stephen Cross led all discussions with Louis Browne.
"I do not recall it being suggested by anyone, expressly or implicitly, that the Coroner should not be told about the concerns relating to Letby. I cannot comment on the attitude of Louis Browne, Ian Harvey, Stephen Cross, Dr Saladi or Dr Jayaram towards the Coroner being made aware of the concerns relating to Letby as I do not recall any discussions about that beyond what is written in my notebook.
"I can picture the pre-meetings taking place in my mind but not the detail of any discussions. My role was to deal with logistics such as transport for the Inquest, arrange pre-meets and make a note."
Mr Swash then continues to deal with the pre-Inquest meeting on 6 October 2016: "The pre-Inquest meeting on 6 October 2016 was a telephone conference and those that attended or dialled in were Stephen Cross, Louis Browne, Dr Ravi Jayaram, Dr Murthy Saladi, Dr David Harkness and Dr Teresa McCarrick.
"I have been asked to explain the following entries made at the pre-Inquest meeting to prepare for the Inquest and support witnesses. "'Not anticipating any difficulties', which appears to be attributed to Louis Browne, this will likely have been said by Louis Browne. This was his opinion on whether he expected any difficulties at the Inquest.
"'Listed for a half day. Coroner believes issues are relatively discrete', which appears to be attributed to Louis Browne. Similar to above this will likely have been said by Louis Browne to signify to witnesses that the length of time the Coroner had set aside in his opinion was indicative of the Coroner believing the issues were relatively discrete.
"'Mention of line and replacement, did it have any impact.' This appears to be attributed to Louis Browne. I think this was simply Louis raising the next topic of conversation.
"'Still to this day Ravi doesn't know why this happened in 27 years in paediatrics, never seen this kind of situation.' This is my note-taking of what Dr Ravi Jayaram would have said at the pre-Inquest meeting, namely that he had never seen this kind of situation before in 27 years in paediatrics. My recollection is that he was referencing the circumstances surrounding Baby A [Child A]'s death.
"'If you don't know the answer, say, no speculation, we can't say.' This comment would have been made by either Louis Browne or Stephen Cross. This was not an unusual comment to be made at pre-Inquest meeting during my time in the role. An Inquest is a fact-finding inquiry and therefore witnesses would be advised to stick to the facts. To demonstrate this point, Stephen Cross would regularly give the example of an ICU [Intensive Care Unit] Consultant who is asked a simple 'yes' or 'no' question by the Coroner and was still in the witness box an hour later.
"'Dr Saladi, Coroner asked how did it inform future practice. Review Royal College of Paediatrics pattern of death appear unusual. Further inquiry required, forensic review. Is aware we have had a review but not that we are having further reviews. Review is outside of the remit of your knowledge, then say so. Don't say anything unless you know review is ongoing.' These are my notes in regard to Dr Saladi's question and the subsequent response which would have been made by Louis Browne or Stephen Cross. The advice given to Dr Saladi was that there had been a review. This had identified a pattern of death which was unusual and that further inquiry/forensic review was required.
"I cannot be certain who is aware we had a review but not that we are having further reviews is referencing.
"The Inquest hearing. The Inquest hearing took place on 10 October 2016. I do not recall any discussions before or after the hearing in relation to the concerns about Letby. I do not recall her name being specifically mentioned during preparations for the Inquest. The only time I was made aware of her name was when Stephen Cross asked me to review the set of medical notes referred to above. I do not recall feeling at any time that any answer given by any witness was misleading or was capable of misleading the Coroner connected to the concerns about Letby.
"Had I been concerned I would have raised it with my line managers. I was not aware of all of the information which was being dealt with by Stephen Cross and the Trust's Executives."
That concludes the reading of those extracts.
LADY JUSTICE THIRLWALL: Thank you very much, Ms Brown. Mr De La Poer.
MR DE LA POER: My Lady, thank you the next witness for today is Mr Alan Moore, please.
LADY JUSTICE THIRLWALL: Thank you, is Mr Moore here? Do come forward, Mr Moore.
MR ALAN MOORE (sworn)
LADY JUSTICE THIRLWALL: Do sit down.
MOORE: Thank you, my Lady.
Questions by MR DE LA POER
MR DE LA POER: Please could you give us your full name?
MOORE: Alan Gordon Moore.
DE LA POER: Mr Moore, is it correct that you provided to this Inquiry a witness statement dated 16 May of this year?
MOORE: That's correct.
DE LA POER: Is the content of that witness statement true to the best of your knowledge and belief?
MOORE: It is.
DE LA POER: Dealing with your background first. Did you qualify as a solicitor in 1989?
MOORE: I did, yes.
DE LA POER: Did you then become an officer in the British Army serving in the Army Legal Services branch?
MOORE: I did.
DE LA POER: Did you retire at the rank of colonel after 23 years of service?
MOORE: Correct.
DE LA POER: Were you appointed Assistant Coroner in
Cheshire in 2009?
MOORE: I was.
DE LA POER: And were you one of two Assistant Coroners supporting the Senior Coroner Mr Nicholas Rheinberg?
MOORE: I was one of a number of Assistant Coroners, perhaps five.
DE LA POER: In terms of the role of Assistant Coroner, was that a full-time position?
MOORE: No. I worked on designated days each week.
DE LA POER: Completing your CV, did you become the Senior Coroner for Cheshire on 10 March 2017?
MOORE: That's correct.
DE LA POER: Did you retire from that position in June of 2022?
MOORE: I did.
DE LA POER: Now, just to clear up some of the language that we see used. Do you recognise that on some occasions, people have described you as the Deputy Senior Coroner?
MOORE: That's right.
DE LA POER: That wasn't formally your title, but you recognise that on those occasions it's you who is being referred to?
MOORE: Yes. Mr Rheinberg, the Senior Coroner at the time, nominated me as his deputy but it was a nomination rather than a formal appointment.
DE LA POER: Now, as you are the first of the two Coroners that the Inquiry is going to hear from, I wonder if we can just briefly introduce the Coronial process?
MOORE: Yes.
DE LA POER: We will begin, just if you don't mind, please, by giving us a summary of what a Coroner is and what their function is?
MOORE: Of course. Coroners are independent judicial officers. Their legal powers are derived from statute, they have a statutory duty to investigate certain deaths, namely where the deceased died a violent or unnatural death, where the cause of death is unknown or where the deceased died in custody or otherwise in state detention. There is, I should say, something of a misconception about the role of a Coroner. The public don't often understand the role particularly well. It's worth making clear that a Coroner doesn't investigate criminal offences and has no power to make a determination which would appear to determine an issue of criminal liability on the part of any named individual or to determine an issue of civil liability. So the Coroner's legal duties are quite narrowly defined by statute.
DE LA POER: As part of that duty, where a relevant case and we will come to the procedure as to how it arrives to this point. But where a relevant case is before a Coroner, is the Coroner expected, where possible, to identify the cause of death?
MOORE: Yes.
DE LA POER: Is that cause of death a formal, national recording in relation to that individual, in other words that is the official record of the cause of death?
MOORE: Yes.
DE LA POER: So does it follow from that, and perhaps obvious, that it is extremely important that that is right?
MOORE: Indeed, yes.
DE LA POER: Now, in terms of the procedure as to how a particular individual's death may come before a Coroner, you deal with this at your paragraphs 9 and following, and this is the process specific to Cheshire during the period we are focused on, is that right?
MOORE: That's correct.
DE LA POER: So is the expected beginning of the journey of that individual's case to the Coroner that a doctor will contact the Coroner's office?
MOORE: In the case of a hospital death, it would be a doctor.
DE LA POER: What, at that first stage, is a doctor expected to communicate to the Coroner's office?
MOORE: Well, in the first place the doctor would not contact the Coroner directly. The doctor would contact a Coroner's officer within the Coroner's office and the doctor would report the death to the Coroner's officer and would provide details of the deceased person, in this case the deceased child, that would include the circumstances of the death, the clinical picture, the clinical information from the doctor and the doctor's assessment of the medical cause of death if a doctor were able to give one. And that's not always the case.
DE LA POER: So at that point, once that initial information is provided, is that individual's case then going to be set upon a number of potential pathways depending on the nature of the information?
MOORE: Correct.
DE LA POER: Now, you deal with these different options at your paragraph 11. If the reporting doctor is confident of a naturally occurring death, to what extent would the Coroner be involved?
MOORE: Well, the Coroner's officer would report the death to the Coroner. Following on from what we have just discussed, the Coroner's officer would send a form called, in Cheshire, called an HMC1, which would contain
all of the information that I described to you. So the Coroner would get to see that form. The Coroner's officer would also speak directly to the Coroner about the death that's been reported and if the reporting doctor was able to offer a naturally occurring cause of death and was confident of that, and if the Coroner had made all necessarily -- forgive me -- all necessary preliminary enquiries in relation to that death the Coroner would issue what's called a form 100A and that would end the Coroner's involvement in the case.
DE LA POER: Now, the next potential scenario, and we are again just speaking generally here, would be the circumstances in which a doctor is not able confidently to offer a cause of death. What options are available at that stage?
MOORE: In, in such a case, the Coroner would direct a postmortem examination to take place carried out by a pathologist in order to establish what was the cause of death. In the case of a neonatal death, that postmortem examination would be carried out by a paediatric pathologist.
DE LA POER: In the event that the pathologist is able to offer a cause of death which would be described as natural, what then?
MOORE: Well, again, if the pathologist provided a natural cause of death and, following all preliminary enquiries by the Coroner, the Coroner was happy with that cause of death as being natural, and there were no concerns regarding medical care or treatment then a form 100B would be issued and that would end the Coroner's involvement in the case.
DE LA POER: Now, we have used the phrase "natural death". It's perhaps important to understand what unnatural death might encompass. Plainly, it encompasses deliberately caused death or murder?
MOORE: Absolutely.
DE LA POER: But does it also encompass matters which are perhaps not as serious as that; in other words, occasions where medical care may have been deficient --
MOORE: (Nods)
DE LA POER: -- or other scenarios such as that?
MOORE: Indeed. Clinical mismanagement and matters of that nature, yes.
DE LA POER: So the fact that a death for a Coroner might be described or suspected as being unnatural, it doesn't follow that it is immediately moving to thoughts of that person must have been murdered?
MOORE: Absolutely not. That's correct.
DE LA POER: In the event that the postmortem and the pathologist who's conducted it cannot offer a natural cause of death, what then for the Coroner?
MOORE: Well, excuse me. What would then happen is the Coroner would likely open what's called a Coroner's investigation. And I should say that in, in most cases where the deceased is a baby -- and I have already said the paediatric pathologist would be carrying out the postmortem -- that paediatric postmortem examination and the subsequent report can take many, many weeks, sometimes months because the pathologist will also often carry out other investigations such as microbiology, toxicology, virology and investigations of that nature. So it takes a long time. So the Coroner would open an investigation pending the outcome of that postmortem examination and the cause of death would be described in the interim as "withheld".
DE LA POER: So if, at the end of that postmortem investigation stage, there is no natural cause of death or there is concern that the death may not be natural, what then?
MOORE: If there is a concern that the death may not be natural then the case would proceed to Inquest. An Inquest would be opened.
DE LA POER: So far as Inquest is concerned, is the end point of an Inquest that there will be an oral hearing which the Coroner will preside over and reach a conclusion at the end of it?
MOORE: That's absolutely correct. There is one, if I may, there is one element we may have missed out. It's if the Coroner's investigation leads to a postmortem examination which -- forgive me -- a postmortem examination report which reveals a natural cause of death and there are no concerns regarding care and treatment the Coroner would discontinue the investigation rather than proceeding to the Inquest.
DE LA POER: I understand.
MOORE: Just for completeness.
DE LA POER: So those are the procedures available in any given case.
MOORE: Yes.
DE LA POER: I am going to turn now to look at your involvement in the deaths of the children named on the indictment, which you deal with at paragraphs 14 and following. The first point, just to remind everybody, I am sure that you would agree with this, Mr Moore, is that when you are dealing with these cases, up until 10 March of 2017, you are doing so as an Assistant Coroner
effectively on a part-time basis supporting Mr Rheinberg, is that correct?
MOORE: That's correct, yes.
DE LA POER: So [Child A]., did you open and adjourn an Inquest on 23 December 2015?
MOORE: I did, yes.
DE LA POER: [Child D], did you open a Coroner's investigation on 26 June of 2015?
MOORE: Yes.
DE LA POER: And did you subsequently and immediately adjourn an Inquest on 8 January 2016?
MOORE: That's correct.
DE LA POER: Was Mr Rheinberg the person with overall responsibility for investigation of [Child D]'s death?
MOORE: That's correct. My involvement was the two procedural stages; namely, to open the investigation and then subsequently to open the Inquest.
DE LA POER: The Inquest hearing was scheduled in [Child D]'s case before you as then the Senior Coroner on 25 May of 2017, is that right?
MOORE: That's correct. Mr Rheinberg had prepared the case for Inquest, he had prepared the witness list and dealt with all of the disclosure and he was attempting to hear the Inquest before he retired. Unfortunately, he wasn't able to do that, so he handed me the file and the case had been set down for hearing on the date you just mentioned.
DE LA POER: In fact, that hearing never took place because on 3 May, so some 22 days before it was scheduled to be heard, you were notified of a police investigation, is that right?
MOORE: That's correct.
DE LA POER: Just help everybody to understand this. Is it appropriate for an Inquest to take place in the event the police are investigating a death?
MOORE: No.
DE LA POER: So is the inevitable response to learning that a police investigation is taking place for an Inquest to be suspended or adjourned?
MOORE: That's correct, so as not to prejudice any criminal investigation or subsequent criminal proceedings.
DE LA POER: At the conclusion of a police investigation, are there circumstances in which the case will be re-opened or continued once the outcome of any criminal proceedings are concluded?
MOORE: That's correct, that can be the case, yes.
DE LA POER: So that's [Child D]. In the case of [Child I], was [Child I]'s death reported to you on 23 October of 2016 upon which you
directed that a postmortem take place?
MOORE: I -- I think it was 23 October 2015.
DE LA POER: '15, my mistake. That's an error in my notes. 2015?
MOORE: No problem.
DE LA POER: Finally, in relation to [Child O] and [Child P], did you open an investigation on 30 June of 2016?
MOORE: I did in respect of both children, yes.
DE LA POER: And did the case then proceed under the stewardship of Mr Rheinberg until you became the Senior Coroner on 10 March?
MOORE: That's correct.
DE LA POER: And have you seen -- and we will hear on Friday from Mr Rheinberg -- correspondence to the effect that in the course of the period that Mr Rheinberg was managing the investigations into [Child O] and [Child P]'s deaths, that he had been minded to close those investigations but in fact by the time that you became Senior Coroner they were still live investigations and you took them over?
MOORE: That's correct. He was, he was minded to discontinue the investigation, to use the correct term. But you're absolutely right, yes.
DE LA POER: As with the case of [Child D], upon being informed on 3 May of the police investigation, did you
suspend the Coroner's investigation?
MOORE: I did in both cases for the -- for the same reason that we discussed in relation to the other case, so as not to prejudice the police investigation.
DE LA POER: Turning to your communication with staff from the Countess of Chester Hospital.
MOORE: Yes.
DE LA POER: The first event that I wish to ask you about is a telephone call from Stephen Cross, which I think we can date as some time around the 6, 7 or 8 July?
MOORE: I -- I don't remember the exact date, but I wouldn't dispute that.
DE LA POER: No, we have some notes to that effect.
MOORE: Yes.
DE LA POER: Now, were you the intended recipient of that call?
MOORE: No.
DE LA POER: Who was?
MOORE: Mr Rheinberg.
DE LA POER: But was it the position that Mr Rheinberg wasn't available?
MOORE: That's correct, he wasn't in the office.
DE LA POER: So doing the best you can, just tell us what Mr Cross told you in the course of that telephone call?
MOORE: Sure. The admin staff put the call through to
me and they said, "There's a call for Mr Rheinberg, he is not here. Will you take it?" "Yes", I said. I took the call. Mr Cross introduced himself as the director of Corporate and Legal Services. I didn't know Mr Cross prior to that. He indicated that the Countess of Chester Hospital had experienced a number of neonatal deaths in, in recent times and that the Trust had therefore commissioned an independent review by the Royal College of Paediatrics and Child Health. He said the review would look at the neonatal unit and he said, "We will send a copy of the report once it's available through to Mr Rheinberg."
DE LA POER: Now, we know that a driving factor behind the RCPCH review was the fact that the Consultants raised concerns in a number of meetings that they had suspicion that a member of staff may be responsible for some or all of the deaths. Was that information communicated to you by Mr Cross?
MOORE: No.
DE LA POER: Just to consider that. If, if you had been told that, what, if anything, would have been your reaction?
MOORE: Well, I wouldn't have waited for Mr Rheinberg's return. I would have explored exactly what the concerns were that Mr Cross or the Trust or both had and, if necessary, would have spoken with the police.
MR DE LA POER: Now, there's one further meeting to ask you about, Mr Moore. We will need to take a little more time over it. My Lady, I wonder if this might be a convenient moment.
LADY JUSTICE THIRLWALL: Yes, certainly. So we will take the break now and we will start again at 2 o'clock.
(1.00 pm)
(The luncheon adjournment)
(1.59 pm)
LADY JUSTICE THIRLWALL: Do sit down.
MR DE LA POER: Mr Moore, we are going to move forward in time from early July 2016 to a meeting on 15 February of 2017. Before we come to the detail of that, obviously you had been told about the RCPCH report the previous year. Do you think that by the time you came to that meeting on 15 February you had seen a copy of that report?
MOORE: No, I hadn't.
DE LA POER: Had you before that meeting been given any other information about the Countess of Chester, how
their investigations were progressing, or anything like that?
MOORE: No. The only information I had was that in the summer of 2015, Mr Rheinberg had taken a death report where he had noticed from the text on the death report form that there had been three deaths in a very short period of time and then subsequent to that the information about the report -- forgive me, the review having been commissioned. That's all.
DE LA POER: So to some degree you went into that meeting cold, is that fair to say, in terms of the issues that were about to be discussed?
MOORE: Absolutely, yes.
DE LA POER: Now, we are going to look at firstly an email that you sent about that meeting close to the time. This is to be found at INQ0002048, at page 110. As that will come up on your screen in a moment, but --
MOORE: Yes, I have it.
DE LA POER: As you will understand, what was or was not said at that meeting is a matter of some importance so we will begin by looking at your record of that meeting on 3 May, so about two and a half months later and I will just draw your attention, please, to the second paragraph. You say:
"On 15 February this year Mr Rheinberg met with Dr Harvey, Medical Director at the Countess of Chester Hospital (COCH), and Stephen Cross its Director of Corporate and Legal Services. The meeting, which was held at the coroner's office, had been called by Dr Harvey and Mr Cross. I was asked to join in part way through the meeting. "Briefly, Mr Cross referred to a number of neonatal deaths at the Countess of Chester. Seemingly there had been some form of 'internal' reviews by the COCH. There had also been an external review by the Royal College. "Following these reviews clinicians from the neonatal unit at the COCH had written to the Chief Executive of the COCH, aggrieved regarding some of the findings. They asked whether the Coroner could hold an Inquest in each case. "Mr Rheinberg explained that the Coroner may only hold an inquest where he has jurisdiction to do so, in other words where there are proper legal grounds to hold an inquest. The inquest process, he said, is not a form of governance for the hospital trusts and the like." Then you go on to say what happened following the meeting. Now did you refresh your memory from any notes or records before you wrote this or was this just from your
recollection at that time?
MOORE: I believe it was from my recollection at that time.
DE LA POER: Now, I am sure you will identify with this, one matter that you haven't included in that email is any suggestion made to you and Mr Rheinberg that a member of staff had been identified as being potentially responsible for some or all of the deaths?
MOORE: Yes.
DE LA POER: Do you agree? That's not there in your summary, is it?
MOORE: No, it's not.
DE LA POER: So we will move on from that note and we will come to a note which the Inquiry understands was made by Mr Rheinberg at or very close to the time. This is at page 102 of the same document. [See also page 103]. Is that a document you recognise from your preparation for this Inquiry?
MOORE: Yes, yes.
DE LA POER: Are we right in understanding that "AGM", which we see in the top line, will be a reference to you?
MOORE: That's correct.
DE LA POER: Now, it may not be an important point, but in your email a couple of months later you indicated that you attended the meeting part way through. This record doesn't appear to acknowledge that fact or draw attention to it because it begins with you and Mr Rheinberg attending the meeting. Doing the best you can, do you think you did attend late or that you didn't, or can you just not say now?
MOORE: I have thought about this. My recollection is that I was called into the meeting by Mr Rheinberg in the sense of: oh, I am having a meeting, would you come and join us in that sense. So I can't say how long the meeting had been going on when I joined.
DE LA POER: Does that recollection tend to suggest that it was a spontaneous decision once the meeting had been convened for you to join?
MOORE: That is my recollection, yes.
DE LA POER: Before we come to the detail of this, what was your understanding about why you were invited to join that meeting?
MOORE: To be honest, I don't know. My assumption was afterwards that Mr Rheinberg felt that as he was due to retire quite shortly after this meeting, some weeks after this meeting, he thought it might be prudent for me to attend, but that's just my assumption.
DE LA POER: But at all events were you happy to follow the request made of you by the Senior Coroner and join the
meeting?
MOORE: Yes, I was, yes.
DE LA POER: So let's turn and have a look at some of the details here. At item 1 towards the top: "Letter of 15 February 2017 handed to me with enclosures." Now, "me" will be Mr Rheinberg because this is his note. Do you recall whether there was a copy of those materials for you or not?
MOORE: My recollection is that there wasn't, I don't recall seeing any documentation at that meeting.
DE LA POER: We will have a look at what documentation was handed over because we have a cover letter and that documentation. Do you think at any point after this meeting you saw that documentation or any of it?
MOORE: I have seen the documentation in preparing to give evidence at this Inquiry. Yes.
DE LA POER: But at the time when you were either Assistant Coroner or Senior Coroner, do you think you saw that material?
MOORE: I don't believe so.
DE LA POER: Well, we will have a look at it just to work through it briefly, but it may be that that is the resting position we reach.
So item 2 refers to: "... a bundle of in-depth reviews into the baby deaths in question and towards the end of the bundle is a sheet indicating which reviews relates to which baby. In the case of each review a document will be expanded and written in an easily comprehensible form to be delivered to the parents. We will be given a copy." Now, do you have any recollection of having received a document after this meeting, which is a more easily comprehensible form of the review that is being spoken about?
MOORE: I don't. I can -- I can possibly speculate but I don't want to do that.
DE LA POER: Well, if you don't have a recollection, you don't have a recollection --
MOORE: No.
DE LA POER: -- and that will be where we reach.
MOORE: Very well.
DE LA POER: The note in the unnumbered paragraph then goes on to talk about a letter which had been written to the Chief Executives as -- and that that was one of the enclosures. Do you recall whether the letter was brought out of the bundle and that you went through it or talked about its content or was it the case that the bundle was to one side, and there was just an oral
discussion without reference to documents?
MOORE: My recollection is that when I joined the meeting, Mr Rheinberg had a bundle of hard copy documents which I assumed had been provided to him by either Mr Cross or Mr Harvey.
DE LA POER: Were those documents ever opened up in the course of the meeting to look to any of the particular documents as they are being spoken about, do you recall?
MOORE: I can -- I can recall the letter from the Consultants having been spoken about but I -- I couldn't say whether Mr Rheinberg had it in front of him at the time.
DE LA POER: At all events, you didn't have it in front of you?
MOORE: No.
DE LA POER: The summary given to the meeting presumably by either Mr Harvey or Mr Cross was that they, ie the Consultants, are asking for the Coroner to hold an Inquest in each case which prompts Mr Rheinberg to draw attention to the fact as per the statute that an Inquest can only take place when the Coroner has jurisdiction to do so?
MOORE: (Nods)
DE LA POER: Presumably you would understand that to be a reference to what we talked about this morning, ie, the procedure that allows for the Coroner to take control of and investigate a death?
MOORE: Correct.
DE LA POER: It goes on, and we don't need to read all of that paragraph out, but you will have refreshed your memory from it with Mr Rheinberg providing some further information about the function of a Coroner?
MOORE: (Nods)
DE LA POER: Having read that now, would you agree with that summary of the role of a Coroner as recorded by Mr Rheinberg here?
MOORE: Yes.
DE LA POER: So he then gives a number of examples, perhaps rather like the examples that we discussed this morning but the first is: "Cases in respect of which an inquest has already been held. If that is the case then the Coroner is functus officio." In other words they do not have a jurisdiction any longer?
MOORE: Correct.
DE LA POER: "Deaths, which although reported were dealt with under a Part A with jurisdiction never formally taken. With no body within the jurisdiction, following a funeral, the Coroner could not hold an Inquest without
permission from the Chief Coroner which could only be sought if there were proper grounds for doing so." Would you agree with that as an accurate summary of the position?
MOORE: Yes.
DE LA POER: "Deaths where a natural cause of death was shown following a postmortem/investigation was discontinued. Should new facts emerge indicating an unnatural death then an Inquest will be listed." Again would you agree that is an accurate summary of the law?
MOORE: Yes.
DE LA POER: Of course those deaths already listed for Inquest, which as we know at this time was [Child D], [Child O] and [Child P]?
MOORE: I think [Child O] and [Child P] were still Coroner's investigations.
DE LA POER: They were still investigations at that time?
MOORE: Yes.
DE LA POER: Had not -- an Inquest had not been opened. Then we have the deaths currently under investigation, presumably that's a reference to [Child O] and P then?
MOORE: Correct, that's right.
DE LA POER: Given the word "investigation", where either
an unnatural cause is found, no cause is found or where there is an element of neglect?
MOORE: (Nods)
DE LA POER: Now, no doubt you would agree with 5 as far as it goes. One potential circumstance which isn't included is where a death was deliberately caused and would you say that that could be added to that list and for it still to be legally accurate?
MOORE: Well, if a death had been deliberately caused by a criminal act, the Coroner wouldn't be investigating, it would be a police matter.
DE LA POER: Was there any discussion in this summary of the law given by Mr Rheinberg about what ought to happen if a deliberate act, so murder was suspected?
MOORE: No.
DE LA POER: Then just completing the note, we have a remark attributed to you. You asked according to the note, what the clinicians hoped to achieve by seeking Inquests and wondered whether there were reputational motives, there being no right of appeal from the Royal College's findings. That is the first bit. The next bit appears to be a summary of a response. So just help us. Do you have a recollection of saying that?
MOORE: I asked that question, yes.
DE LA POER: Why did you say that?
MOORE: Well, although I hadn't seen the letter from the Consultants at this meeting, it was discussed between Mr Cross, Mr Harvey and Mr Rheinberg and I could only gauge from the discussion that the Consultants appeared to have some degree of issue with the Royal College report and I didn't know exactly what. And this is a letter from the Consultants to the -- I believe the Chief Executive at the hospital and I thought this is somewhat unusual. Why would the Consultants be writing to the Chief Executive? So in my own mind I am asking the question: what could be the motivation behind that? There must be some reason. And I asked that question at the meeting. And I -- I think I -- I asked: is it perhaps that they have suffered reputationally from something in that report which of course I hadn't seen? Or is there some kind of issue that they would wish to challenge in another forum? And bearing in mind that the context of this meeting was asking Mr Rheinberg to conduct some form of review of the neonatal deaths, including perhaps holding an Inquest in those cases, as we have just touched on. So I was trying to get to the bottom of: what's the motivation behind this?
DE LA POER: By the time that you came to make that comment, had you formed any impression about the attitude of either Mr Cross or Mr Harvey about the Consultants or the validity of their concerns? You have said that there was a discussion about their letter --
MOORE: Yes.
DE LA POER: -- with Mr Rheinberg. What we are really looking for, so far as you can tell and recall, is had you formed an impression about whether they thought that this was a really important thing, that absolutely needed Mr Rheinberg to take a grip of or that they were there reluctantly or somewhere in between? Just your impression, please?
MOORE: I follow. Somewhere in between. There was -- there was certainly no particular impetus one way or the other. They were presenting this letter to Mr Rheinberg, this request.
DE LA POER: Yes. One interpretation of the suggestion you made is that you are potentially ascribing bad faith motivation to the doctors, that they are wishing to complain because they are worried about their reputation, that's -- did you mean it in that way?
MOORE: No, I meant it in quite a different way.
DE LA POER: Could you just explain for us --
MOORE: Yes.
DE LA POER: -- the way in which you meant it?
MOORE: If I can be frank, I -- I had some sympathy with the Consultants. I thought -- well, there are a number of Consultants apparently had signed the letter and I thought, well, there must be some reason why they are unhappy with the Royal College report and I was just trying to establish at the meeting what that might be.
DE LA POER: So that brings us, if we just go over the page here, please. As you can see that brings us to the end of Mr Rheinberg's note of the meeting.
MOORE: Yes.
DE LA POER: To the best of your recollection, is that an accurate note of what was discussed?
MOORE: It is. There's one element of this note that we haven't discussed in evidence, if I may just take the Inquiry to it. It's the bit where --
DE LA POER: Is it the governance remark?
MOORE: Yes.
DE LA POER: Well, I was going to ask you about that in just a moment. But, yes, in terms of the overall accuracy of this note, do you think it captures the substance of what was discussed?
MOORE: I do, yes.
DE LA POER: So my question about the governance remark is that that is a remark that you yourself recalled having
been made some two and a half months later when you are emailing the police about this, because you used that very same word?
MOORE: Yes.
DE LA POER: So plainly it stuck in your recollection?
MOORE: It did.
DE LA POER: Just tell us what was being said about governance?
MOORE: Yes. Mr Harvey and Mr Cross were essentially saying to Mr Rheinberg, the Coroner: here's a letter from the Consultants, they would like you to conduct an -- a review of -- of these neonatal deaths. He explained in some detail the legal position which we have already touched on in evidence and he made it clear that he had no legal powers either a) to carry out some form of broad review of the deaths, that's outside of his statutory powers as a Coroner; and b) he couldn't revisit the cases in a Coronial context because many of them had already been through the Coronial process and he would have to have special reasons to do that. For example, he said at the meeting: I would need, for example, fresh evidence or new facts which he was not already aware of to be able to prompt him to revisit those cases in a Coronial context. And I think the governance remark -- well, I can
tell you what my interpretation of it was. I think he was basically saying: you are asking me to conduct a review, I have no legal power to do that at all, you are asking me to revisit the cases and hold Inquests, I have no statutory powers as a Coroner to do that and almost finally, the Coroner is not or he, Mr Rheinberg, is not a form of governance for the Countess of Chester Hospital to review those cases in any other form. I -- I think my impression was he felt -- and you can ask him of course this question, but my impression was that he felt that Mr Cross and Mr Harvey and perhaps the Consultants had completely misunderstood the role of a Coroner and his legal powers.
DE LA POER: Now, an important question for the Inquiry is whether or not you and Mr Rheinberg were told in this meeting that there was a concern that a member of staff may be responsible for some of the deaths or all the deaths that were under discussion. We have looked at your email of two months later, we have looked at this note, we don't see in either of those a reference to that. What is your recollection?
MOORE: There was no mention whatsoever of anything of that kind. If there had been, the outcome of this meeting would have been very different, I assure you. Mr Rheinberg is a very experienced, diligent and thorough Coroner and I have no doubt that he would have contacted the police probably before Mr Harvey and Mr Cross had left the room.
DE LA POER: Had he not been immediately inclined to do that, what would you have said?
MOORE: I would have made that call.
DE LA POER: I would like to take you to an internal email and what you have told us may already provide us with the answer but it's important that you have the opportunity to comment upon what is being said about this meeting.
MOORE: Yes.
DE LA POER: We will find that at INQ0014268 at page 2. So if we go up to page 1, the relevant part is on page 2 but I just want to help you understand. This is an email, as we see, towards the bottom of the page from Dr Gibbs one of the Consultant paediatricians?
MOORE: Yes, I have it.
DE LA POER: Sent 24th and it is sent to Dr Jayaram, also a Consultant paediatrician. And we can see that he is sending Dr Jayaram an update about what he has understood to be the position following various discussions that he's had. And we can see in the second paragraph he is saying: "Managed to get to see Ian this evening -- and it
was just Ian." That is a reference to Mr Harvey?
MOORE: Yes.
DE LA POER: He then sets out what he has been told in that meeting as he recalls it. And if we go over the page, and look at the second full paragraph, what is said: "Ian felt that he and Stephen Cross had made our concerns clear to the Coroner. As Tony Chambers had said in his letter to each of us, our letter in which we gave our view that the deaths and non-fatal collapses had not been adequately addressed through the two reviews so far, and that we felt some of these were unnatural, was given to the Coroner. "Also, Ian and Stephen Cross discussed our concern that one particular nurse featured more often than any other nurse in the resuscitation/immediate care of the deaths and collapses. Also, as we already knew, the Coroner has the 'full' College review (where our concerns are again covered) and also Dr Hawdon's review." Now, to be clear, "our concerns", as the Inquiry understand them to be as at this date, is that Nurse Letby may have murdered babies?
MOORE: Yes.
DE LA POER: Is this an accurate summary of what you were told?
MOORE: Absolutely not.
DE LA POER: Thank you. The penultimate document, or set of documents, to take you to is just as I said I would to Mr Cross's covering letter, just to remind you of the documents that were provided. INQ0002048, so that is the document we were looking at before and we will go to page 34, please.
MOORE: Yes, I have it.
DE LA POER: So we see the date, the 15th, the same date as your meeting, and as the Inquiry understands it, this is the letter and documents that sit behind it that were handed over at the start of that meeting. We can see listed are three enclosures, a report by Dr Hawdon, the letter from the paediatric Consultants dated 10 February that we have already covered was discussed, and observations additional to the RCPCH review of neonatal services at the Countess of Chester Hospital. I just wanted, this was obviously addressed to Mr Rheinberg and rightly so, as he was the Senior Coroner and you weren't at this time. But I would just like to show you some features of these documents to see if it prompts your recollection in any
way. So if we go to page 89 of this same document, we will see Dr Hawdon's summary page at the conclusion of her report. So this sits at page 55 of Dr Hawdon's report, and we can see that at paragraph 2, she -- her second group, as she describes it, is the death or collapses is unexplained. It is the investigation of these cases which would potentially benefit from a local forensic review as to the circumstances, personnel et cetera, date of first collapses noted. We can see that a number of children are listed there including [Child A] who had been the subject of a full Inquest in October and [Child O] and [Child P], both of whom were at that time the subject of Coronial investigation?
MOORE: Yes.
DE LA POER: Do you think, Mr Moore, that you ever saw this report in the time that you were either Assistant Coroner or a Senior Coroner?
MOORE: I -- this is Dr Hawdon's report?
DE LA POER: This is Dr Hawdon's and this is just the penultimate page of it?
MOORE: I think I might have seen it in the course of preparation for the Inquest into the death of [Child D]. But I can't be sure. I say that because it might have been placed in the file by -- by Mr Rheinberg.
DE LA POER: Do you have any recollection of reading this page in particular where it is recommended that a local forensic review take place in relation to four particular deaths?
MOORE: I remember hearing that there was going to be further investigations by the Trust in the lead-up to the Inquest into [Child D] because I received a letter from the Trust's solicitors, very shortly before the Inquest, which, as you have said, didn't take place because of the police involvement. And in that letter, they, they said -- forgive me, I can't quote the exact words, but: our investigations are not yet complete. There is still more work to do. I responded by asking broadly because I didn't know what they were talking about: are you seeking an adjournment because we were right on top of the Inquest? So I don't know whether that, that further work to do might relate to this paragraph that you are showing me, but I can't be sure.
DE LA POER: In terms of as a trained solicitor and person who's practiced law for your entire professional career in one form or another, what significance, if any, would you ascribe to the use of the word "forensic" in this context and the fact that "personnel", as we see later,
are to be the subject of that review?
MOORE: Well "forensic" doesn't necessarily imply criminal. For instance, it could -- it could mean a broader, more detailed in-depth review than whatever has already taken place.
DE LA POER: So does it follow from that that if you read that word your brain wouldn't necessarily interpret it as meaning: this person wants some kind of quasi-criminal review to take place?
MOORE: No, no, I wouldn't.
DE LA POER: We don't need to go to the Consultants' letter of course. That letter expressly mentions the fact that Dr Hawdon had identified four cases. So any consideration of that letter would have led to the same understanding that there were four children whose cases were, according to Dr Hawdon, requiring a further investigation. The other document that was an enclosure we will find at page 93. Now, this is the observations additional to the RCPCH report and we can see perhaps capturing part of the substance of it, the third line down: "Subsequently, the paediatric lead and all the Consultant paediatricians had been convinced by the link."
The link being between the deaths and the nurse which we see in the preceding sentence. Is this a document that you have any recollection of having seen?
MOORE: No. I have only seen this in preparing for -- for the Inquiry.
DE LA POER: Just so that you understand what we are looking at here. The Royal College report, the confidential version, had a number of passages in it which were removed from the dissemination copy, there were two versions of them. These are the comments that marked the difference between the two versions and they have been extracted into a single document?
MOORE: I follow.
DE LA POER: If you had seen this document, would it have prompted you, do you think, to do anything?
MOORE: Absolutely. Yes.
DE LA POER: And why is that?
MOORE: Well, it's suggesting that there may be at least a suspicion that a person or persons may have been responsible for a death.
DE LA POER: Just to spell it out, why is that of relevance to you as Coroner?
MOORE: Because that takes straight away from the Coroner any jurisdiction to deal with the case and it's
a red flag to alert the police, at least for them to examine it and look at it.
DE LA POER: No doubt Mr Rheinberg will be able to address this on Friday, but can you think of any good reason why this wouldn't have been handed over to you? Or are you even able to say that it wasn't part of all of the documentation that became yours when you became Senior Coroner?
MOORE: No.
DE LA POER: Is it a documentation that if Mr Rheinberg had read it and appreciated its significance, that you would have wanted to have drawn to your attention?
MOORE: Yes.
DE LA POER: Thank you. That can come down. At the conclusion of your statement, you say at paragraph 41, page 10: "The provision of timely, accurate and truthful information is fundamental to the Coronial process". At paragraph 42: "If the Countess of Chester became aware of any information which had not already been disclosed to the Coroner's office that would impact upon a death, the Countess of Chester would have been required to disclose that information immediately." Then you go on: "This applies to cases which had already been through the Coronial process as well as to any case that was still subject to Coronial process. The Countess of Chester would have been expected to notify the police immediately if it had any reason to suspect that a person or persons may have been criminally responsible for causing a death. It goes without saying that the bereaved Families ought to have been appropriately informed in any of the above circumstances." You have set that out. I just want to ask you about this. On the one hand, there is an understanding that witnesses who have taken an oath to tell the truth must do so and that they must not speculate and they must be scrupulously accurate. On the other hand, we know here there was a body of Consultants who had a sincere belief that there may be a criminal explanation for these deaths. Are you clear in your own mind, Mr Moore, that even though it wasn't a fact, as far as they were concerned, nevertheless you should have been told?
MOORE: Absolutely. The Coronial process is a judicial process. It demands complete candour from healthcare professionals, clinicians, nurses and from hospital staff and also from Trust management and a failure to disclose to the Coroner any information
which may have a material bearing on a Coronial case, whether it's been through the Coronial process already or is pending, is to mislead the Coroner and to mislead the court.
MR DE LA POER: Mr Moore, thank you, those are my questions for you. I understand there is brief further questioning from Mr Baker.
LADY JUSTICE THIRLWALL: Mr Baker.
Questions by MR BAKER
MR BAKER: Mr Moore, I ask questions on behalf of a number of the Family groups. In your evidence to the Inquiry, you described the effect of a finding of natural causes following a postmortem and in effect bringing an end to the Coroner's jurisdiction.
MOORE: Yes.
BAKER: I think that there is a caveat to that, I think you will appreciate that where an unnatural death -- sorry, where a death by natural causes is made unnatural by the failure to intervene?
MOORE: Absolutely, to situation.
BAKER: Yes, so a death by natural causes can nonetheless be unnatural and can therefore trigger the Coronial jurisdiction in certain circumstances?
MOORE: In those circumstances, yes.
BAKER: The classical example of that would be
circumstances where there was a failure by doctors or other medical professionals to intervene and to avert an actual cause of death?
MOORE: Correct.
BAKER: Now, there have been discussions within this Inquiry and evidence in this Inquiry about the need for candour with patients?
MOORE: Sorry, I can't quite hear you?
BAKER: It is the microphone. There's been evidence in the Inquiry about the need for candour with patients and Family members?
MOORE: Yes.
BAKER: You were giving evidence a moment ago about the need for candour with the Coroner as well?
MOORE: (Nods)
BAKER: If a Trust became aware of evidence to suggest that there was negligence or failings in care provided to a patient that caused or contributed to their deaths, would you expect that to be made clear to the Coroner?
MOORE: Absolutely. Yes.
BAKER: The relevance in this case is that a report was obtained from Jane Hawdon in October 2016, which identified failures in care provided to [Child D] and that that was probably relevant as to her death or a cause of her death?
MOORE: Right.
BAKER: Would you have expected that to be communicated straight away to the Coroner and indeed to have been made clear within the witness statements that were provided by the Trust to the Coroner?
MOORE: Both of those, yes.
MR BAKER: Thank you, my Lady I have no more questions.
LADY JUSTICE THIRLWALL: Thank you very much, indeed, Mr Baker. I have no questions for you, Mr Moore, thank you very much for coming and you are now free to go.
MOORE: Thank you, my Lady.
LADY JUSTICE THIRLWALL: I assume we are going to move straight to the next witness?
MR DE LA POER: Yes, and I am going to hand over, if I may, to Mr Bershadski.
LADY JUSTICE THIRLWALL: Thank you. Do come forward. Just a minute. Everybody is getting themselves sorted out. I think we are ready. Would you take the oath, please.
MS HELENE DONNELLY (sworn)
LADY JUSTICE THIRLWALL: Thank you very much indeed, Ms Donnelly. Do sit down.
DONNELLY: Thank you.
Questions by MR BERSHADSKI
LADY JUSTICE THIRLWALL: Mr Bershadski.
MR BERSHADSKI: Could you state your full name please for the Inquiry.
DONNELLY: Yes, Helene Elizabeth Claire Donnelly.
BERSHADSKI: Ms Donnelly, you have prepared a statement dated 11 April 2024; is that correct?
DONNELLY: Yes, that's right.
BERSHADSKI: Is that statement true and accurate to the best of your knowledge and belief?
DONNELLY: Yes.
BERSHADSKI: Ms Donnelly, is it correct that you worked at the Mid Staffordshire NHS Foundation Trust from 2002 to 2008 and that you were one of the members of staff there who raised concerns?
DONNELLY: Yes, that's right.
BERSHADSKI: Ms Donnelly, I am not going to ask you about any of the matters that you raised concerns about. You have discussed those matters in the public domain and interested persons can look those up for themselves. Is it right that from 2013 to 2022, you were an Ambassador for Cultural Change and Lead Freedom to Speak Up Guardian for the Midlands Partnership NHS Trusts?
DONNELLY: Yes, that's right.
BERSHADSKI: I believe you were involved with the Sir Robert Francis Freedom to Speak Up Review; is that correct?
DONNELLY: Yes.
BERSHADSKI: Now, the Inquiry has seen a policy that was in place at the Countess of Chester Hospital in 2015 and 2016 called a Speak Out Safely policy and it's the Inquiry's understanding that that pre-dated a Freedom to Speak Up policy so I am just going to ask you a few questions about the earlier type of policy and the transition to Freedom to Speak Up, if I may?
DONNELLY: Yes.
BERSHADSKI: How developed in your experience was the notion of speaking out safely in 2015/2016?
DONNELLY: You mean across the NHS as a whole?
BERSHADSKI: Yes.
DONNELLY: Yes, not very. I think certain Trusts probably were slightly more proactive than others and I think different cultures existed which probably provided an environment where some people felt more unable to speak up and then had better experiences when they did but I think it was very, varied and certainly wasn't consistent across the NHS.
BERSHADSKI: When in your experience did Trusts start appointing Freedom to Speak Up Guardians?
DONNELLY: Well, it became part of the NHS standard contract I believe in 2017, so the creation of the National Guardian's Office started around 2016 and then they helped to sort of guide and influence how organisations were to appoint and implement Freedom to Speak Up Guardians.
BERSHADSKI: Just thinking back to 2015/2016, in the Trust policy there was a list of designated officers under the Speak Out Safely policy?
DONNELLY: Yes.
BERSHADSKI: So at that point they weren't called Freedom to Speak Up Guardians. What was their obligation as far as you are aware to report serious concerns to external bodies, such as regulators or police?
DONNELLY: Well, we had the Public Interest Disclosure Act in place then so there was a broader understanding I suppose for the public as a whole that if people raised concerns that fitted within the public interest then there was an obligation for that to be acted upon and addressed but I don't think that was something, certainly not a lot of colleagues I -- at that time would have been familiar with and it doesn't really translate into every day life so I don't think people would have known necessarily what designated officers were there to do, what their remit was and I don't think
it would necessarily encourage people and give confidence.
BERSHADSKI: Now, you say in your statement I think that in your experience since the introduction of Freedom to Speak Up Guardians, more NHS workers are speaking out and I just wanted to ask you a few questions about that. The Inquiry has received a statement from the legal director of a charity called Protect which is a whistleblowing charity that you may be familiar with. That statement suggests that it is still the case that a majority of NHS workers, certainly who contact the Protect charity, feel that they have been negatively treated as a result of speaking out. Examples that have been provided of the ways that workers have been negatively treated is with the Datix system being used maliciously against them and with retaliatory referrals being made to regulatory bodies. Are those problems that you are aware of and what's your experience of them?
DONNELLY: Yes, very aware. I mean, I don't have exact figures but I think we have now -- well, I know we have exceeded over 100,000 people speaking up to Freedom to Speak Up Guardians since their introduction in 2017 and that's been collected through the National Guardian's Office data. Now, I don't think the majority of those over 100,000 people have had a negative experience. I would argue that probably the majority have had a good experience. However, for those who have had a poor experience and for those who, whatever they were speaking up about was not addressed and then harm occurred to patients, to colleagues, that's clearly, you know, not acceptable and so whatever the number it's -- it's too many and we need to address it.
BERSHADSKI: So in your experience it is something that still happens on occasion?
DONNELLY: Yes, yes, very much agree with that.
BERSHADSKI: I am just going to ask you a few questions about the role of a Freedom to Speak Up Guardian, if I may. Could you begin by just explaining to the Inquiry what sort of person is typically in your experience appointed to a Freedom to Speak Up Guardian role?
DONNELLY: They are people generally who work within the NHS organisation and they can be kind of a -- professionally regulated as nurses doctors, allied health professionals and so on. Or they could be clerical staff, admin staff, it doesn't really matter. What does matter is their sort of personal attributes, their confidentiality, their compassion,
engaging, making sure that people feel safe to come to them but crucially also making sure that they can challenge and escalate where necessary. And if they feel and have a reasonable belief that the concerns that they are escalating to leaders for their action, if they feel that those are not being responded to in the right way, then the Guardian has to understand that they are duty-bound to escalate further and that might be externally outside of the organisation. And it's really important that they do that and they feel able to do that and I am not convinced that all of them do.
BERSHADSKI: The Inquiry has seen some evidence that the typical appointee to a Freedom to Speak Up Guardian role is a member of mid-level management who will typically have many other responsibilities as well?
DONNELLY: Yes.
BERSHADSKI: Does that chime with your experience?
DONNELLY: Yes, and has come about because there was never any clear directive in terms of the -- the time given, the ring-fenced time given to individuals in that role. So I don't believe they have to do the role solely full time but I do believe that if, if it conflicts with other roles then -- or there is even a perception of a kind of conflict of interest then they
shouldn't do it but equally if their -- their capacity is such in their sort of substantive role, for example, that they are not going to be able to give enough appropriate time and attention to the role of Guardian and they also shouldn't do it. But they also need that kind of clear directive as to what the ring-fenced time should be or at least a range of what that should be because it will differ, of course, from Trust to Trust, organisation to organisation. But there needs to be at least some sort of remit and we still haven't got that.
BERSHADSKI: If we set aside for a second the issue of the amount of time that Guardians typically have for their role, if it is right that the typical appointee to that role is a member of mid-level management, then how frequently in your experience can such a person feel that it's difficult for them to challenge senior management if they feel that senior management haven't dealt adequately with a concern?
DONNELLY: It really just varies from Guardian to Guardian. They are trained in a -- in a consistent way by the National Guardian's Office, each Guardian has been to be registered that National Guardian and have training through the National Guardian's Office, which they have to refresh every year as well. And that is
really clear, that -- that responsibility that I have just set out around that need to challenge and need to escalate further. So no matter what level you are at in the organisation, you should feel able to do that. I would argue that those already in possibly a middle management sort of structure or role they should feel more able to do that because they are already in a management position so I think this speaks to the broader issue we have around managers not responding necessarily or feeling empowered and enabled to respond when people speak up, because of course obviously you are questioning me at the moment around the Freedom to Speak Up Guardians, but it's a much broader responsibility for everyone in the NHS, no matter what your role or position, but especially for those with any sort of leadership or management responsibility to be able to know how to escalate concerns, to crucially be able to recognise them in the first place, know how to escalate and know where to go if you are met with resistance. So I think it speaks to the broad problem we have around managers and some of those may be Guardians, who don't actually feel then able to speak up because of the culture that exists.
BERSHADSKI: What is it that you think is wrong with the culture that exists around -- that's preventing them from taking adequate action?
DONNELLY: Because of the response that they usually get from colleagues at peer level but certainly from more senior managers and that is not necessarily at Exec and board level because as you are aware there is lots of different levels of that kind of middle management structure. And, I mean, I am speaking generally because there are clearly some organisations, some Trusts, some pockets within some Trusts, that do this really, really well. However, there are obviously areas where it's not done well and it's that toxic negativity of if you are speaking up, if you are raising concerns, you are being difficult, you are not being a team player, you are causing problems rather than solutions and that sort of negativity. And that I think comes from a system and -- and, you know, an absolutely overstretched National Health Service where everybody is firefighting, everybody is under pressure. So that knock on your door or that email that presents a problem is -- you just haven't got the time and the capacity to be able to deal with it. If as a manager it's not within your gift to be able to resolve the issue, you have got to be open and
honest about that but you have also got to escalate it further up the chain so that somebody can possibly do something about it. But you are met with either being told: well, it's your problem, it's your team, it's your area, you sort it out, even though it might not be within your gift, or: why are you bringing me this? Don't bring me problems. Bring me solutions. Or that sort of thing of: well, look, what's the bigger picture here, what is the problem? Just make it go away, shut it down. And that is still people won't admit it, but that is absolutely a real theme that exists through all of the cases that I have been aware of where people are speaking up and they get a negative response. Obviously I am setting aside the ones where people do get a good response because every day people are speaking up in the NHS and they don't even know what -- that's what they are doing, they are just raising an issue to their manager or speaking about something in a team meeting and they get a good response so we never hear about it. But on those occasions where it doesn't go well, that ripple effect then goes out which then suppresses other people from speaking up and it also suppresses other managers in terms of knowing how to do the right thing because the role modelling isn't there and the
culture is such that you -- it creates apathy and a feeling of futility because people think what is the pointing in speaking up and even managers feel: what is the point in escalating, what is the point in speaking up because either I will get it in the neck or nothing is going to change anyway, so I might as well just keep my head down even as an advocate for somebody else who is speaking up. So that broadly is the culture that exists.
BERSHADSKI: One of the suggested changes that you mention in your statement is around expanding the role potentially of the National Guardian's Office?
DONNELLY: Yes.
BERSHADSKI: Now, could you just describe, please, what is your understanding and experience of the current role of the National Guardian's Office in the Freedom to Speak Up Guardian system?
DONNELLY: So basically the National Guardian's Office is there to help set out guidance -- and it's only guidance, for individual Guardians, so as I said earlier the Guardians have to be registered with them, so we have a database of who is who and what is what. They have to be trained by the National Guardian's Office, so there is some degree of standardisation which is very good.
And then they are there to collect data so each Guardian has to return reporting data on set categories and obviously the Guardian's Office expands that out and looks at other things and they do Guardian surveys as well, so the Guardian returns sort of information on how they are being responded to as a Guardian and so on so forth. So they are there to collect a lot of data and information which is of course useful. They are there to offer guidance to Trust boards and other organisations that have Freedom to Speak Up Guardians on best practice and how it should look. But that's about it. They don't have any statutory power to enforce anything. They were conducting a small section but they were -- a small portion, sorry, but they were conducting some case reviews. So anybody could contact the Freedom to Speak Up Guardian and say that they had raised a concern or a Guardian could contact the Guardian Office and say: I had a case brought to me, I am not convinced it was handled in the best way, could you do sort of independent review of that so that we can see if things could have been dealt with better? And obviously there is learning, improving and shared more broadly. But they have had to really reduce doing that because they don't have capacity, their funding and budget has been cut and they can't necessarily do these in the way that they -- they possibly could and should. What I wanted the Guardian Office to become was a body that would be sort of centrally funded but it would have a degree of independence and autonomy to be able to really influence the culture change we needed around speaking up practices and within that they would have statutory power to enforce rather than just give guidance and I also wanted them to be able to essentially employ Guardians who would then effectively be kind of deployed into Trusts and organisations so that the Guardians themselves would have a genuine degree of independence because obviously most Guardians are employed by their organisation so there is a perception, even if it's only a perception rather than a reality, that that Guardian can't necessarily be fully independent because they are on the payroll and ultimately, you know, they have got to do what their bosses, managers, are telling them to do. So they don't have that real independence and autonomy to act freely. So if they were employed outside of the organisation via the National Guardian's Office that for me would have helped prevent that.
BERSHADSKI: One of the other suggestions is for the
National Guardian's Office or some other body to itself be an organisation to which potential whistleblowers could turn and --
DONNELLY: Yes.
BERSHADSKI: -- for that organisation then to have the power --
DONNELLY: Yes.
BERSHADSKI: -- to see that that concern is dealt with appropriately?
DONNELLY: Yes.
BERSHADSKI: What is your view of that sort of model?
DONNELLY: Absolutely agree and that was the other thing I wanted at the time, I wanted the National Guardian's Office to be able to independently investigate concerns that came through to them. I mean, obviously not all concerns would have to be because again if concerns are being dealt with appropriately within an organisation and there's a degree of confidence in that, then that's fine. But for those cases that are more difficult, more tricky, that are involving more senior people in the organisation, you know, all of those issues that could arise I think there you need somebody you can go to to offer real independence but also some expert sort of advice and investigative responses to. And there are obviously independent investigators
out there that for a fee will come in and do an investigation. But they are essentially just being told by the Trust: well, these are our Terms of Reference, this is what we want you to investigate, you go and investigate, tell us what you think. The investigator goes away and then the Trust then sits with it and decides what to do or not to do with the information. So I wanted there to be more oversight than that and, and that sort of responsibility would then sit with the National Guardian's Office to not only investigate and hand it back over but to then follow up and make sure what's happened and follow through it make sure that's appropriate and that all parties involved have had the -- the necessary feedback and information what the outcomes are and crucially what's the learning, because we see this time and time again in the NHS when even if good investigations have been conducted, the learning and the improvement from that is not shared widely enough so the same problem then happens further down the corridor or down the road and neighbouring organisations. So I wanted there to be a body that would be able to oversee all of that.
BERSHADSKI: The Inquiry understands that a slightly different model operates in Scotland, where there is
an independent National Whistleblowing Officer that can investigate how concerns have been dealt with.
DONNELLY: Yes.
BERSHADSKI: Is that a body that you have any experience of?
DONNELLY: Yes, I have spoken to some individuals who have worked within that system and escalated concerns to that system so, I mean, as with all information nothing's perfect, is it, and I think their model has got so some real bonuses to it and I think that is probably something we should in England be edging further towards. But I wouldn't necessarily think that their system is absolutely what we should adopt, I think there are -- it needs to be worked through and I think there are things that we could take from it definitely and there should be some learning across. Although I think -- I mean, this is a much bigger issue in terms of the devolved nations and it's obvious that we have the different systems across the different devolved nations but that in itself causes confusion as well. We have lots of differences within the NHS England structure as it is, there's so much variation from organisation Trust to Trust, but you go over the border and there is even more variation. So if we think about a lot of our workforce, particularly medics who move around a lot and will go and work in different places on rotations, they can go to one Trust and have a completely different system and model and Freedom to Speak Up than a Trust down the road and that clearly varies again if you go north of the border. So I think that again causes a lot of confusion. We need much greater standardisation and clarity on it all.
BERSHADSKI: Now, one of the issues with the current Freedom to Speak Up policy and Guardian role that the Inquiry has read about is that because the policy, the national policy asks that all concerns be raised under that umbrella that actually all sorts of interpersonal difficulties are raised through that and that sometimes therefore the more serious concerns raised under Freedom to Speak Up might not achieve the prominence that they should do. Is that a problem that you have experienced?
DONNELLY: No. I think what happens though is concerns that relate to the interpersonal relationships get dismissed because they are just "grievancee", person A not getting on with person B and it's all -- it's all dumbed down to just those kind of personality differences or somebody doesn't like the way somebody is
managing them and those sorts of things. Now, often that can be the case, of course it can. But what then happens is that those things get dismissed and there is a real failure to actually acknowledge that certainly in the health and social care sector that those issues may not be a direct safety issue, they may not be directly relating to patient safety, but they absolutely are indirectly and we know this through sickness rates, through retention rates, through studies and research done such as Civility Saves Lives which has shown the cognitive impairment when colleagues are rude to you and you are going into situations that could be bullying and toxic. That cognitive reduction when you then might go out from the staffroom or the staff area to treat a patient could clearly be catastrophic. So this failure to acknowledge that those interpersonal relationships and issues that are raised are just as important, in my view, as some of the more obvious and more direct patient safety issues. So what then happens is that either the sort of the two things get conflated and not really resolved properly or they get separated which is what should happen but one precedes the other and vital things are missed and/or things are forgotten so we need a much better system of addressing those things sort of
simultaneously but giving them both the importance that they deserve, because they are really important. I don't necessarily think though that concerns that are raised through Freedom to Speak Up as it were through a Guardian are any more likely to be dismissed than anything else. In fact, I would argue they are more likely because if a Guardian is doing what they should be doing, they should be following that through to its conclusion and if they are not happy that it's been concluded appropriately then they should be escalating further so I would argue by raising it through a Guardian there is much more oversight and it's less likely to be lost in translation than otherwise. However, I would also say that we shouldn't have to have every concern going through a Freedom to Speak Up Guardian, I believe we shouldn't have to have Freedom to Speak Up Guardians. Clearly I am a huge advocate for them, and I still am, but I think we should have a culture where people are speaking up to managers or their manager's manager and getting the right responses in the first place so that they never have to go to a Guardian.
BERSHADSKI: Can I ask you a few questions about training --
DONNELLY: Yes.
BERSHADSKI: -- because it seems to me that if your evidence is that there is a culture still lacking of speaking up and dealing with Speak Up appropriately, then it may be that training is one of the issues that leads to that?
DONNELLY: Yes.
BERSHADSKI: Now, I think you say in your statement that there is now in principle training on Freedom to Speak Up for all NHS workers?
DONNELLY: Yes.
BERSHADSKI: In your experience, is that mandatory and is it delivered to all NHS workers?
DONNELLY: In my experience, most Trusts have mandated at least the first level so it's sequential. There is three tiers to it: the first is for all workers; the second is for anybody with any leadership and management responsibility; the third and final is for senior leaders including the Execs at board level and Non-Execs as well. And they have to be done sequentially so all the way through, but obviously "workers" just have to do the first tier. Many organisations have mandated that tier, some have even mandated the sort of middle tier. I don't know of any, but there may be some that have mandated all three. So it's good that it's there, it's actually quite good training. It was first developed through Health Education England and well -- actually, no, it was first developed through Public Concern at Work, formerly and now Protect and then Health Education England have helped develop this current suite of training. But it's not enough. For me that is just a toe in the water, that is a -- that is giving all workers an understanding of what Freedom to Speak Up is, what it isn't, how you can access help, what Freedom to Speak Up Guardians are there for and then there's lots of different links and information provided but that is just the start for me. We need to go further. And I feel that because that's you know e-learning and e-training, people just click through it and you don't necessarily fully engage with it. I have been reliably told that some organisations senior and manager level people who have assistants, get their assistants to log in for them and just click through it, and essentially do the training for them so they didn't even look at it. So again it's just, you know, the standard of it and we can't sort of put all our eggs in that basket and say: right, we have sorted training, we've got that,
because we haven't. So I think it needs to be followed up and we need to have much more robust and face-to-face training for leaders. I am encouraged by NHS England's -- some of the work they have done recently around the fit and proper persons test leadership capabilities and also I understand there's a leadership and development programme that's due out I think next summer, so that all looks great, but I reserve judgment until we see how it is brought to life and how it is implemented.
BERSHADSKI: Do you think that managers in the NHS need to be regulated?
DONNELLY: Yes.
BERSHADSKI: Do you think that the issues you have identified of some managers not taking the training seriously and indeed not doing it themselves, delegating it to an assistant to click through; do you think that is the sort of issue that needs to form part of --
DONNELLY: Yes.
BERSHADSKI: -- their statutory and regulatory obligations?
DONNELLY: I do. There is two things, though. Firstly the -- that will only ever be known if the people who know about it feel safe enough to speak up and expose it and they don't. So the people who have told me that happens, they told me -- I have no reason to not trust
what they are telling me, but they have said to me: oh, my God, don't tell anybody I have told you that though, because oh my God! So nobody feels safe to go on the record and call these bad behaviours out. The second thing is that whilst I do agree that we need regulation, I know the government -- was it last week or the week before? -- launched the most recent consultation on that and how we are going to potentially regulate managers and so on. I agree with that, I think we should have it. The Kark review pointed this out years ago and we are still waiting. However, how that is done also has to be done in a really just way and in a way that's supportive because I fear that a lot of managers could be thrown under the bus for failures that are not solely theirs and it's actually a system failure, it is a cultural issue coming from the top and that might not get exposed but certain individual managers within those middle tiers we have already discussed could really feel quite vulnerable because they are not given the support and the training and the ability and the capacity to be able to deal with concerns or issues or whatever it might be, and then they are exposed and they are made an example of but others who are more senior to them and have presided over that behaviour are not necessarily also held to
account. So how that is done and how it's regulated we need to be really, really clear on and make sure it's done in the right way.
BERSHADSKI: I am just going to ask you a few questions about investigations which you deal with from paragraph 31 of your witness statement. You say that an appropriate investigating officer should be appointed where a Freedom to Speak Up concern has been raised and that you have heard of very busy managers being tasked with undertaking complex investigations?
DONNELLY: Yes.
BERSHADSKI: Could you just talk about that a little bit more and the extent to which that's a problem in your experience?
DONNELLY: In my experience it happens frequently, daily across the NHS where you have a manager who is already running a team or a department or an area and they are very, very busy and they suddenly get told: we have got an investigation that's happening over there, nothing to do with them so there is a degree of independence but we need you to investigate. And often they are not trained and have no idea how to do an investigation. I have spoken to many managers over the years who said to me: I was asked to investigate something and I had no idea how to do it, I have never had any investigation training, I didn't even really know what the Terms of Reference were or how to establish that. Some of the things I was investigating I had no clue. So some people who have had to investigate fraud, for example, or alleged fraud had no idea what to do, so you have got to question the -- you know, how thorough and appropriate that investigation would be. But in addition to that, they are obviously running a department or a team or an area and are very, very, busy. They are not given any more time or not taken away from that to be given ring-fenced time to conduct an investigation. So two things happen: their team and their area suffer, but also the investigation, the quality of the investigation suffers and also can be -- it can take much longer than it perhaps should take to complete because they are not given the appropriate time and support. So for me this, again, just -- I just can't understand why we haven't really tackled that. Now, I know of some Trusts that have a sort of bank or a pool of investigators and they specifically appoint them to be investigators who can be sort of drafted in and move around to conduct investigations and that seems like quite a good model.
But, equally, you have still got the issue around genuine impartiality and independence because if they are still employed by the organisations they might not have that. So I think we need a central pool who can be dropped in. But again it needs to be central because there are lots of organisations, as I said earlier, who are quite happy to charge the NHS a fee to bring in independent investigators -- and many do a very good job -- but for me it's not robust enough and we don't have that kind of central oversight to make sure that they are conducted in the right way and there's too much variation again.
BERSHADSKI: So is it your proposal that there be a central body to which all Trusts can turn for conducting investigations?
DONNELLY: Yes, at a certain level. I mean, as I said earlier I think low-level investigations, there are investigations that are happening every day across the NHS, that wouldn't necessarily tip into that sort of threshold of needing that. But I think those that do or where you have had an investigation and people are appealing it or they want another investigation or there's new evidence comes to light, or whatever, I think sometimes you need to take it up a notch and make sure that it's done
appropriately. And there just isn't anywhere really to turn or there isn't a standardised approach to it. So I think again that could and should have been something that could have been incorporated into the National Guardian's Office potentially or we needed another separate body that is there across NHS and social care to investigate concerns and not just the ones that are overtly about patient safety but the ones that are around bullying and harassment and discrimination and all those other kind of poor leadership. Those need to be investigated very thoroughly to ensure that those people don't go on to just continue to do what they have been accused of doing and are not held to account.
BERSHADSKI: I am just going to ask you a few questions about human resources departments, which is a topic that you deal with in your statement from paragraph 35. You make the point you say that it's alarming the number of times that you have heard inappropriate advice being given by HR or by HR workers not paying due diligence. Can you just expand on what you meant by that?
DONNELLY: So again, I just you know give the caveat that there are some really good HR practitioners out there and some really good HR departments, so I don't want to
appear to be, you know, tarring them all with the same brush. But I frequently hear about poor advice that is given around -- and conflicting advice as well and again some very open and honest HR practitioners have come to me and owned up and said, "I don't really know" or "I's being told by somebody senior in my team to advise this, but I don't actually think that's the right thing to do" or "I don't feel I have got the skills or the required competency to be able to deal with this particular case" because it seems quite convoluted or really difficult to unravel. And they themselves can feel out of their depth, but they would never admit that and say, "I don't think we are handling this well." So you then lead on to, you know, inappropriate advice or conflicting information. One person is told one thing, somebody then is told something different. The way that some things are decided that they will be investigated but other things are not and there is that lack of consistency. Again going back to the investigation. Who was appointed to investigate? How is that decision made? Are they genuinely impartial? The amount of times -- and this happened in my own personal case at Mid Staffs -- but the amount of times I still hear about investigating officers who are appointed to investigate and are known to be good friends with the person they are investigating or have worked very closely with them. Now, they might believe that they can separate it and they genuinely would come at it with a degree of impartiality and objectivity. But even -- but the perception of that, the optics don't look good. So why do? That there must be an alternative. Don't even do it. And that's not bringing the credibility of that individual investigator into question to say, "Well, they can't be impartial" but it's just -- it just doesn't look good. It doesn't give anybody confidence in what's going to then happen. So, why start from that basis? So I really feel that again HR practitioners themselves are often very disadvantaged. They are under the cosh, they are under pressure to keep costs down, to not investigate certain things because it's going to be too time-consuming or it's going to cost too much. Then they give that advice to the manager who then delivers the information. The way that information is delivered as well can be awful. There is just that lack of compassion and a genuine sort of just and fair response to it, which I hear consistently.
BERSHADSKI: Now, you say at paragraph 49 that when people speak up about something they are worried about but not sure they are often expected to provide evidence to support their concerns. Too often concerns are never acted upon until it is too late because there was apparently insufficient evidence. Now, the Inquiry has heard from a number of witnesses who have testified that this was a case where they were presented with apparently insufficient evidence. Can you just expand on the sorts of situations that you have come across where an evidential threshold, without giving any details of course --
DONNELLY: Yes.
BERSHADSKI: -- that have been applied inappropriately in your view?
DONNELLY: So I mean it can, it can range. I've heard of lots and experienced lots myself. So sometimes again it's more around the interpersonal behaviours because we can't get away from that. That's the thing that people speak up about the most. The thing that people go to Freedom to Speak Up Guardians the most is about inappropriate attitudes, behaviours and potential bullying and harassment as well. So -- and the two things don't necessarily cancel
out the other. So they might be raising that, but, at the same time, raising patient safety concerns or whatever. So often they are asked to provide evidence that they don't necessarily have and sometimes it's hearsay, sometimes it's just rumour, but there's enough there to worry people. But nothing -- there's a lack of curiosity from managers and HR to go and find out more information or that the burden of proof is placed back on that person to say, "Well, you've got to find me evidence, you've got to find me witnesses." Rather than them actually, as managers and as HR professionals, to go out and actually go and find the information themselves if it's there. And then when I raise that question, I get told, "Well, we can't be seen to be doing that because we'll look like we are going on a witch hunt." I don't agree with that at all. If the evidence is there, you will find it. If it isn't, then fine, but at least you've satisfied yourself, and everybody else involved, that you have robustly looked into it and investigated it. Also if people see people going and looking actively, if there is any information or evidence, that will give confidence to other bystanders who may have that crucial piece of information but have been too afraid or have thought that they wouldn't be believed,
or nobody is going to listen and they might then come forward because they can see that issues are being taken seriously. So that can range from anything from those kind of interpersonal behaviours and incivility and rudeness and aggressive toxic cultures to really serious concern and allegations or just a worry that an individual health professional is not behaving in the right way. They might not have the evidence to prove it, but they have got enough there that concerns them. The responsibility I believe then sits with the managers and HR and the senior leadership of the organisation to go out and find that evidence rather than just turn round and say, "Well, you've told me this, but you just -- it's just rumour, I can't do anything." I think that's abhorrent and, as we have seen in this most tragic of cases, we know what then can happen if people don't take action and it cannot be allowed to continue.
BERSHADSKI: Now, in this case, the suspicion that was raised was of course one of deliberate harm by a healthcare worker and indeed deliberate killing by a healthcare worker. In your experience, how aware are Freedom to Speak Up Guardians and to what extent is that possibility covered in their training?
DONNELLY: I believe, I mean, I haven't been on the training recently, but I believe it is, it is covered. You know, these -- this is obviously one of the most recent and most horrific cases, but Mid Staffs, Harold Shipman, Ian Paterson, the baby maternity deaths that have happened that Donna Ockenden looked into, the Kirkup Review, all of these things are referenced and talked about to Guardians so that they understand the ramifications if these things are not addressed appropriately. I mean, this is partly why I still do what I do because I'm asked to go and talk about my own personal experience at Mid Staffs, which is, you know, 10, 15 years ago now but, sadly, it is still ever relevant and pertinent and we hadn't moved on enough. You could argue we've actually gone backwards. So I still go around the country supporting Trusts and organisations but also sometimes individuals around what really good Speak Up practices and culture should look like in my opinion and in my experience. So for me the Guardians are acutely aware. But the Guardians can only be effective if they are working within a system and an organisation and a culture which is not only receptive to that, but is encouraging it and is doing -- you know, everybody has got to play a part
and if you have people blocking it along the way then it won't work as it should. And when I pioneered the role back in 2013, I saw it as a conduit for the frontline to raise issues with the Guardian who could then get direct access to the CEO and board if necessary. And that came about because of the evidence that was given at the Mid Staffs Inquiry by the Chair of the board at the time and other senior leaders saying, "We didn't know. We weren't told how bad it was." And I have seen throughout this Inquiry that you have heard similar evidence from very senior board level individuals saying, "We didn't have full sight of all the information." Well, you should have. And actually a Guardian can and should be utilised as an -- as an ally really for that most senior tier of leadership to be asking and to be telling them where the problems are, where the hot spots are, what's the noise, what are the issues and if there are specific cases that are really concerning, and potentially quite extreme, that should be brought directly to the board and not be distilled. It shouldn't be dulled down. Obviously a lot of what comes across the boardroom is quite sanitised and is reduced because they have overwhelming amounts of information to go through and I understand that. But where these cases do crop up,
the Guardians should have the confidence to go to the CEO, to the chair of the board, to the Non-Exec director responsible for Freedom to Speak Up and the Exec Director responsible for Freedom to Speak Up and say, "I am really concerned because of X, Y and Z" and then they should again have the curiosity and the leadership skills required to go and find out more information and assure themselves that actually everything that could be being done is being done and if not, why not and does it need to go further. The fact that we are still hearing of cases where that's not happening and we are still hearing of Guardians being blocked and not being given access or regular access or meaningful access to those senior tiers is really concerning.
BERSHADSKI: You talk about --
LADY JUSTICE THIRLWALL: Sorry, Mr Bershadski, is now a good time for the break?
MR BERSHADSKI: Yes, certainly.
LADY JUSTICE THIRLWALL: So we will take a break of 15 minutes, so that's back in at 20 to.
(3.24 pm)
(A short break)
(3.39 pm)
LADY JUSTICE THIRLWALL: Yes, Mr Bershadski.
MR BERSHADSKI: Thank you, my Lady. Ms Donnelly, just three more questions from me. The first: we have heard from a number of witnesses about there being a lack of specific policies on what to do when there is a suspicion of deliberate harm by a healthcare worker. Do you have any experience of whether policies are sufficiently clear on what to do in that scenario?
DONNELLY: No. I mean, I think the policies could be more explicit. There is certainly in the Freedom to Speak Up training and in the Freedom to Speak Up policy there is reference to the fact that if you have got significant concerns and you do not feel that they are being appropriately addressed within the organisation, then it signposts you to other external bodies such as the CQC, the National Guardian's Office, Health Education England, et cetera, et cetera, and not least the police as well. If there are any significant concerns around harm, possible deaths, safeguarding then -- and if people believe they have, they have got a legitimate concern then they should be encouraged to -- to access that. But I think again it should be done through, where possible, and best practice would be that somebody can speak up to their manager, their manager escalates it and the organisation, if they believe there is even potential for that, they should be getting external professional support to look at that. And I don't just mean pulling in an independent investigator necessarily. I mean going to the police or other bodies that are appropriate and I think we could strengthen the policy and the guidance and the training to possibly be more explicit in that.
BERSHADSKI: Is it your experience that Trust managers, on occasion, are resistant to taking such a step?
DONNELLY: Yes.
BERSHADSKI: Based on concerns around the reputations of either themselves or the Trust, is that a problem?
DONNELLY: Yes, absolutely. I do think that this harks back to my concerns around HR practice as well, is that the focus is on the reputational damage of the organisation and protecting the organisation and not necessarily on just doing right thing and having transparency and openness to make sure that we can all be assured that either there is a problem and therefore it needs to be addressed through the appropriate routes and channels or actually there isn't a problem but we looked into it robustly and thoroughly and transparently and everybody can then be assured. And those things don't necessarily happen. Again this case is extreme,
so I haven't had personal experience of something on that kind of magnitude. But certainly my experience at Mid Staffs was that nobody wanted to hear because it was just -- it was too difficult, it was too difficult to do, it was too difficult to look into. It would expose the organisation for not hitting its targets and not performing and the pressure now on all of our NHS Trusts is, is so extreme that that pressure is even more acute and although now, as opposed to when I was raising concerns at Stafford Hospital, there is more talk of patient safety and quality coming first and not the reputation and not hitting the target. But that's not necessarily borne out in practice. It's not lived and breathed and really encouraged because ultimately, even within an organisation, teams are pitted against each other, wards are pitted against each other in terms of their -- the targets they are hitting internally within the wider macro-organisation. So instead of people again feeling empowered to speak up, and I include managers in this, to say, "We are struggling", the onus is on them to either fix it and make it look good or just make the problem go away. And then you extrapolate that up and out and that's the culture in the NHS. So I don't think we have learnt
from it. And this is the problem with some of the HR practices we have. And by that I also mean the employment law as it currently stands; I think we need legal reform in terms of employment law and legislation around whistleblowing specifically. But the sort of -- the cloak of secrecy that is shrouded over investigations and so on leads to, at best, things not necessarily getting addressed as they appropriately should and thoroughly should and therefore giving confidence to people that it's been addressed and, at worst, actually gives dark places for dark things to hide deliberately. And I think that's rare and usually it's not a deliberate thing that things are hidden, but because of that lack of transparency and openness it just leaves that, that possibility for things to not be clear and that leads again in terms of whistleblowing for people speaking up it doesn't give people confidence because they can't see what's happened. Even if I go back again to concerns that relate to interpersonal relationships and behaviours and conduct and grievance-type issues, even if a finding is upheld that somebody has been found to be bullying, whatever, that's not necessarily disclosed because it's private
and confidential for that individual. So a) where is the accountability? And even if this person is dismissed from that organisation they sort of leave quietly by the backdoor. Nobody really knows what's happened and there is no learning from it and it doesn't give the people who spoke up and the people who were witnessing that any confidence for the future and then what that individual often then does is go down the road and get a job somewhere else. Now, I know, as we talked about earlier, the current consultation into regulation of managers and so on will go some way to hopefully prevent that and certain individuals may be barred from working in the NHS and, I hope, the wider health and social care sector. But I still worry that if the HR practice and if employment law doesn't change to enable that then we still won't be any further forward and my real fear is we will be here again in another five, 10 years having seen another scandal and discussing the same things.
BERSHADSKI: I was going to ask you a question relating to employment law, so that leads neatly on to that. The Inquiry has heard some evidence that decisions relating to Letby were, in part, matters that were taken into account were legal risk, ie a potential grievance that she may have brought or Employment Tribunal proceedings and that that may have had some impact on decisions people made. Is that a problem that you are aware of?
DONNELLY: Yes. I mean, again, this was a really extreme case and the ramifications were huge and I hope -- well, I know that they're not -- they are not every day. But what is every day again is going back to the sort of the potential issues around conduct, behaviour, attitudes, potentially bullying and the person that's had an allegation made against them brings a counter-allegation and the organisation doesn't want that. So they just want it to go away and they don't want it to go to an Employment Tribunal or whatever. So they mitigate risk and they either pay people off so again they leave quietly by the backdoor. But they are not held to account. Equally, though, I would argue -- and I have spoken to many managers who have been wrongly accused of bullying when they have just been trying to manage somebody and, you know, people are difficult to manage and there are a lot of people who will claim that they are being bullied or they are being victimised. They will claim they're a whistleblower to try and avoid some potential disciplinary action being taken against them
or whatever and it just becomes, it just -- it just becomes a free-for-all and just everything becomes muddied. So we have got to get better at separating those things out and dealing with them really clearly and robustly and transparently. But also for when people have been accused of bullying and it's not upheld, then that should also be transparent. Because that person -- there's a rumour mill. Even though people are told "You mustn't talk about it", everybody talks about it. Everybody knows that that person over there has been accused of bullying and then there's the whole thing of "Well, there's no smoke without fire" and for some people that's terrible because it damages their reputation and potentially their career. So being open and honest in both, you know, eventualities -- a finding is upheld and somebody has been found to be a bully, well, let's expose them. If somebody has been accused of it but then there was no evidence and they were not found to be a bully then that also needs to be made transparently made clear but in defence of that person. And although I believe this to be rare, but if there is sufficient evidence that claim was made maliciously or vexatiously, then that
person should then go through some sort of process of disciplinary action. Because too often people, you know, don't get held to account for making malicious and vexatious claims. But it has to be done robustly and transparently so that there is confidence on both sides of it and I think what happens is these threats are made or people -- these sort of counter-allegations are made and nobody really investigates it thoroughly and robustly and then nobody transparently tells the outcome of that and if there is still doubt, well, it can go through appeals or whatever. But there just -- there needs to be greater transparence, just like we have in criminal law. I don't understand why employment law is so very different. I think we just need to have much more openness and honestly. And I understand the confidentiality element whilst an investigation is happening, but the outcome of that should be made clear and honest.
BERSHADSKI: A final question. One of the features of some of the evidence in this Inquiry has been around whether there was adequate communication with Families when concerns were raised. Can you just tell us about the extent to which the Freedom to Speak Up system and training incorporates duty of candour?
DONNELLY: Yes. It is certainly discussed and talked about and, again, guardians should be aware of both the statutory and the professional duty of candour that exists and if they don't feel that that's being upheld that again is something the Guardian should be escalating to the people who need to know it. And that might be, as I said earlier, going to the most senior people in the organisation, the Trust board, the Executive leadership and potentially beyond if necessary. I think we are making some progress in that area with the introduction of PSIRF, so the Patient Safety Incident Response Framework, which I believe was brought in in September last year that there's a really clear framework for organisations to work from where they absolutely engage with and involve the families and/or relatives and/or individuals who, who sort of harm has occurred to or could have occurred to because an error has been made. And, first and foremost, an apology needs to be made. And I know that there is, in the guidance that comes through from NHS England and others and the CQC, there are real -- it's really clear that that apology is not an admission of liability. But I don't think that actually is widely thought or believed to be the case because I still hear people -- and again this comes back to some HR advice that I have heard given -- where HR have said, "Don't apologise, don't apologise" when they are talking to families and relatives but also to employees in relation to employee concerns and that failure to apologise actually makes things escalate ultimately. But there is -- so there is -- so that messaging which is very clear if you take the time to go and look and read about it, but I'm not sure how explicitly we make that clear to our general workforce around the fact that an apology is absolutely what you should do to patients and relatives but also to employees where things haven't gone as they should. So I think duty of candour is talked about. Certainly guardians should be aware of it. But again you are beholden on the organisation to do the right thing and uphold it and if they are not doing it, any individual, but certainly a Guardian, needs to have the courage of their convictions to take it further and escalate it further. And I still don't think we have got a culture that really enables that and encourages that to happen.
MR BERSHADSKI: Thank you. My Lady, those are my questions. I don't believe there are any questions from the bar.
Questions by LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: Right. Thank you. I've just got a couple, if I may. Thank you very much for coming to speak to us today. I don't imagine you thought, when you were first speaking up all those years ago, that this would be where it would lead?
DONNELLY: Absolutely not.
LADY JUSTICE THIRLWALL: No, or that it would take so long. You mentioned a couple of times that there are places where Freedom to Speak Up/open culture actually does exist and people are able to bring their concerns to the Guardian and it's dealt with appropriately. I'm not asking you to do this now, but would you be prepared to say which Hospital Trusts that applies to so that we could perhaps approach them with a view to finding out how they do it?
DONNELLY: Yes, yes.
LADY JUSTICE THIRLWALL: Would you mind doing that?
DONNELLY: Absolutely.
LADY JUSTICE THIRLWALL: Thank you. One of the other things that you talked about was people being asked to investigate things without the right skills or training and that sounded to me like that was quite
a recurring problem.
DONNELLY: Yes, very much so.
LADY JUSTICE THIRLWALL: Then there is one option which we have seen here, is that you bring in an external body and then you give them Terms of Reference and then you decide what to do with it and you have made your observations about that.
DONNELLY: Mmm mm.
LADY JUSTICE THIRLWALL: One of the Non-Executive Directors at the Countess gave evidence yesterday who felt that actually, on reflection, that they really didn't have the skills themselves as a board --
DONNELLY: Yes.
LADY JUSTICE THIRLWALL: -- properly to investigate this, which I think it seemed hadn't been obvious at the time --
DONNELLY: Mm-hm.
LADY JUSTICE THIRLWALL: -- but is now obvious to him. I just wondered whether you had thought about the situation where, and obviously this is and the extreme case, I appreciate that, but a case where concerns are being raised about possible criminal conduct, whether there's anything wrong with that being raised straight up to the board for them to consider safeguarding and the police?
DONNELLY: I don't think there is anything wrong with that. I think it's essential because if it's -- if it's then looked at relatively thoroughly and robustly and it's sort of de-escalated, then that's okay. But the opportunity, if you don't do it in terms of escalating upwards first, then the opportunity could be missed and then harm can happen. So for me it should be, well, if in doubt escalate up. If it then needs to trickle back down to be resolved, which is often what happens anyway, then so be it, but at least you have had some oversight and you have had some assurance and then they can keep tapping in and looking at it. And essentially that again is how the Freedom to Speak Up Guardian role should work. So when it's relatively minor low-level stuff, the Guardian will escalate to the most appropriate manager or actually, in the first instance, the Guardian will encourage the individual who's come to them to go back to their line manager or their manager's manager and have it dealt with through the line. But if that's either been tried and/or it's not appropriate for whatever reason then the Guardian can escalate up to whatever tier. If the Guardian has been presented with information that would, would concern them enough to think there is some issue around potentially patient or public safety or safeguarding, then they should escalate up if in doubt. I mean, if they have got a good relationship with their safeguarding lead, with their Patient Safety Lead and whoever and they feel absolutely confident that if they escalate to them, it will be looked at appropriately then there's no need to necessarily escalate it up.
LADY JUSTICE THIRLWALL: Understood.
DONNELLY: But I think you need to -- but this is the other point as well I made earlier around you have to have a Non-Exec lead and an Exec lead for Freedom to Speak Up. Now, those two people should be meeting separately with their Freedom to Speak Up Guardian or guardians regularly; at least every sort of month to two months, I would say, but also have a direct point of contact in between that time so that if the Guardian is really worried about any particular cases, they can -- they can just sight it to them. They might not give them the full detail at that point but they can put on those individual's radar the fact that: We've got this case that is bubbling in whatever department, I'm a little bit worried. So and so is looking into it. We'll give them time to look at
it but I will come back to you when I know what's happening and/or if I have got further concerns. And then that should be that kind of two-way conversation so that everybody ultimately has some sort of degree of understanding what the outcomes have been. But again often -- and this goes back to my HR concerns -- is that even the Guardian is often told that they are not allowed to know the outcome of the investigation. It's handed over to the investigator, to HR, and then it's: Thank you for that, you know, don't call us, we'll call you. But that shouldn't be what happens. The Guardian is a trusted individual who is trained to know that there are, there are, you know, restrictions on the information they can share, but they themselves have to have assurance that the concerns have been dealt with robustly because if not then it's farcical. There is no point in having the Guardian role in existence. It is literally just a tick box exercise. So that route up to the top and to the Non-Execs is really important as well, but it needs to be two way and I often hear of guardians constantly trying to chase the execs or the non-execs to say: Can we have our meeting? and it just keeps getting cancelled and moved and whatever and it just, you know, it's just clear that
it's not a priority.
LADY JUSTICE THIRLWALL: Thank you. Does anybody want to ask anything arising out of that? No. Well, in that case, thank you very much indeed for coming to help us and you are now free to go.
DONNELLY: Thank you very much. Thank you. I think tomorrow, Mr Bershadski, you are calling the first witness.
MR BERSHADSKI: Yes, that's right, my Lady.
LADY JUSTICE THIRLWALL: Very good. So we will rise now until 10 o'clock tomorrow morning.
(4.00 pm) (The Inquiry was adjourned until 10.00 am, on Thursday, 5 December 2024)
Witnesses:
Stuart Lythgoe: Director of Operations for the Hospital Consultants and Specialist Association
Sybille Raphael: Director from Protect
Professor John Bowers KC: Employment Law Expert
LADY JUSTICE THIRLWALL: Mr Bershadski.
MR BERSHADSKI: Good morning, my Lady. If I could call Mr Stuart Lythgoe, please.
LADY JUSTICE THIRLWALL: Mr Lythgoe, would you like to come forward?
MR STUART LYTHGOE (affirmed)
LADY JUSTICE THIRLWALL: Do sit down.
LYTHGOE: Thank you.
Questions by MR BERSHADSKI
MR BERSHADSKI: Could you state your name for the Inquiry, please?
LYTHGOE: Stuart Lythgoe.
BERSHADSKI: Thank you. Have you made statements dated 31 January 2024 [correction: 21 February 2024] and 24 October 2024?
LYTHGOE: I did.
BERSHADSKI: Are those statements true and accurate to the best of your knowledge and belief?
LYTHGOE: They are.
BERSHADSKI: Is it correct that you are the Director of Operations for the HCSA?
LYTHGOE: That's correct.
BERSHADSKI: Is that the Hospital Consultants and Specialists Association?
LYTHGOE: It is.
BERSHADSKI: Could you just give us a little bit of background, please, to how many members you have, and the sort of make-up of your membership of your Union?
LYTHGOE: Yes, we have approximately 3,500 members, two-thirds which are in approximate terms Consultants. All members are hospital doctors and hospital doctors of all grades and some student associates, medical student associates.
BERSHADSKI: Thank you. The Inquiry understands that one of the people who raised concerns about Lucy Letby approached the HCSA around the time that Letby raised a grievance; is that correct?
LYTHGOE: It is.
BERSHADSKI: Could I start by asking you a few questions about the scale of the problem regarding whistleblowing and the way it's treated in the NHS from your perspective. You have exhibited to your statement a survey that I understand that your Union has done, if I might ask for that to be put up on screen first, please, it's INQ0013295. Could you just tell us a little bit about what prompted this survey and how it was carried out?
LYTHGOE: Yes. HCSA has had a concern with the way in which NHS whistleblowers, in particular doctors, have
been treated over a number of years and that led in 2019 to a motion being put before the TUC Congress, another one was attempted in 2023 and although it's not in my most recent statement, there was a successful further motion with different recommendations in 2024. So there is a background of concern and that derives principally from the role of HCSA to support and represent its members and the focus of that representation is usually employment law issues. And what we found over a number of years is that doctors who have come to us for support on employment law issues, those issues have often -- the grounding or the sort of sequel for them has been a whistleblowing issue where they have raised a protected disclosure, although they usually don't appreciate that what they are raising is a protected disclosure when they first respond to a concern regarding usually patient safety, but -- and in accordance with their obligations. Now, that's a pattern of -- or a consistent problem that we have had and with doctors over a number of years. I joined HCSA in 2020 and when I joined, although I am Director of Operations, I happened to take on a number of cases. I had direct involvement with doctors through the UK, that is Scotland, Northern
Ireland, Wales and in England, where this was a problem, namely that disciplinary action was being against them but the origin of that action appeared to be them having raised a concern. And so this survey that you have displayed here is part of the ongoing work of HCSA to identify the extent of the problem, both in terms of how widespread it is, the impact it has and the -- the -- to move on from that to try and work out ways to protect members.
BERSHADSKI: Is it correct that the conclusions of this survey were that over 70% of hospital doctors believe it's not possible to raise patient safety concerns without detriment to their careers?
LYTHGOE: That -- yes, that was the outcome of the survey that was conducted between 20 October and 2 November of last year.
BERSHADSKI: If I might just ask you a few questions about your experience of the sorts of detriments that befall doctors who raise concerns, to get a little bit more detail about those. One of the issues that I think you mention in your statement is a referral to a regulator which can follow or a threat of such a referral or even the notion that a referral might be made following the raising of a concern. How frequently do you see that sort of action being mooted?
LYTHGOE: It's very common that it's in conjunction with disciplinary action, yes. It's usually a two-pronged approach.
BERSHADSKI: Thank you, that document can come down off the screen now, thank you. In your experience, where a referral is made in response to a concern being raised, how good are regulators such as the GMC at recognising that that is the situation that's arisen and dealing with it appropriately?
LYTHGOE: We consider it's very poor in terms of a number of reasons. One is the -- there's been a problem with recognising that there is or a whistleblowing aspect to the referral. The second is, and it's a more general problem for the GMC, the time that it takes the GMC to investigate matters. They are very elongated, very delayed; in fact that's a feature and one of the problems of the internal disciplinary processes. And the other issue that's of real concern to us is that many of these referrals are malicious/vexatious, but the GMC, if those referrals are made by doctors, and it's not uncommon for that to be the case, the GMC
appears to have -- appears to fail to then go on to use good medical practice to undertake an investigation into such vexatious or malicious referrals. This is an issue that we have taken up with the GMC. We haven't so far received a satisfactory answer and we are continuing to pursue that concern.
BERSHADSKI: Thank you. The Inquiry has also heard from another witness about the use of the Datix system being invoked in response to doctors who have raised concerns. Is that something that you are aware of?
LYTHGOE: Well, in my experience the Datix system is often used by doctors to log concerns. It's one of the means which they would do that and that's an appropriate way of doing that. I don't have any direct experience of using Datix myself because I am not a doctor and only occasionally have I see a copy of a Datix entry, a relevant one. But I -- it -- my understanding would be that it would be as a result of a doctor logging a concern in Datix that some sort of victimisation is initiated. I don't have experience of Datix system itself being used as a means to victimise doctors.
BERSHADSKI: Thank you. One of the main detriments or type of detriment that you discuss in your statements is the use of local disciplinary measures, in particular the
MHPS process, which stands for Maintaining High Professional Standards, in response to doctors who raise concerns. Can you just describe what that process is and how frequently you see it being used in response to concerns being raised?
LYTHGOE: Yes. So, the MHPS process is a policy issued by NHS in I think it was 2003/2005 to create a particular disciplinary framework for doctors that falls within the ordinary employment law context. Although that policy was issued by NHS England I believe, or the regulator, it's been adopted and it's usually incorporated in the policies of particular Trusts. There's essentially three major sections to it. One is conduct, and misconduct allegations which has its own procedure. Then there is capability actions, a section which deals really with the competence of the doctor, clinical competence. And then finally there is the health section. That's the -- and the area that is most commonly used in whistleblowing cases is misconduct. Now, although a case might start and the reason for that is because it gives a route to, it gives a route to a dismissal which won't always happen, but it is a -- in
effect a shot across the bows of a doctor, even if it doesn't lead to dismissal. And because of the nature of hospitals, it's seldom -- although it should be a confidential process, it's seldom that it is restricted merely to those that are involved in the process and the doctor concerned. Often the knowledge that MHPS is being used against a particular doctor will be fairly widespread. Now, the problems with the MHPS process are the failure to adhere to the guidance that's set out in it and the relevant ACAS guidance as well. The inordinate delay that's often applied in these processes I have dealt with several cases that have gone on for three or four years and you can imagine the pressure that's put upon doctors in that type of situation. And then linked to this is that it's not uncommon for doctors to either be excluded or have -- from the hospital or have their practice restricted. If it's restricted, it's generally restricted in a way that will inhibit them from undertaking clinical duties. Now, the consequence of such exclusion or restriction of practice is a skill fade and the longer it goes on, and if we are talking about years, it becomes a very serious issues in terms of the doctor being able to resume their practice. The other issue about this I -- is that if the doctor is dismissed, it's a challenging situation in bringing a case to an Employment Tribunal, whether it's a whistleblowing one or whether it's an unfair dismissal one, and the challenge that I am talking about in this particular case is that it's very seldom that a doctor or very seldom that anyone will be reinstated at an Employment Tribunal during the process. And so that -- these factors have a significant impact upon a doctor's ability to resume their practice because if they are dismissed and not reinstated but there's been significant skill fade, there are very significant problems in trying to arrange appropriate reskilling in order for them to return to practise and, therefore many don't. There is one other thing I would just like to say is that a problem with the processes -- I mean there's more detail assessed in the playbook that you may ask questions about later on and partly in this research here, but one of the problems is that the internal investigation process often creates divisions within departments in a hospital. It's common for the doctor to end up being isolated. And this process and the evidence-gathering process and often it's a -- it's a -- I have direct experience
of seeing evidence gathered by managers going to, for instance, secretaries or people in other departments, not just fellow doctors, asking if they know of problems with X doctor. So it's not simply responding to people that come with concerns to management, it's eliciting, inviting adverse -- adverse evidence. Now, the problem with this is it creates a division within departments. It polarises situations, which would be a challenge in itself to reintegrate a doctor, but the -- the real concern is that often it -- it creates a situation whereby although the original investigation may have been a misconduct one, which is usually in the cases that we are talking about completely flawed because it raises allegations that are without substance, it nevertheless -- that polarisation, that division, creates a situation where it sets up the potential for the employer to dismiss for some other substantial reason and often that is on the basis of an inadequate investigation. But -- I am probably going on for quite a long time, I hope that sets the tone --
BERSHADSKI: Can you just explain that link? How is it that an investigation under the MHPS process, even if it doesn't find misconduct, then leads to a situation where it can be said --
LYTHGOE: Because the whole -- the whole process of these investigations, you tend to have a situation where the evidence gathering is directed towards gathering evidence that is against the doctor. In these types of cases, it's not common to find an impartial and fair investigation. And that -- what happens is and the background to this is the whistleblowing context, and in the whistleblowing context one tends to find there are those that aligned, as in doctors, that aligned with management, whether it is clinical management or lay management in terms of supporting the initiative to victimise the doctor. There are -- most of the other doctors will not align themselves with the doctor who's -- who's being victimised because of the concern they have that they might be the next in line for something that happens. And so that's why one gets the isolation and you have a situation where it's seldom that those that are not aligned with the management case will go forward and speak in favour of the doctor and the concerns that he's got in that disciplinary process because in effect they are concerned they may be seen as challenging management and risking either victimisation themself and/or damage to their own career prospects. And so what happens is then -- and it's not just
doctors but I have seen this -- that a -- rather than pursuing the misconduct allegations which are usually flawed, and usually without substance and which we as a -- as a representative can challenge over an extended period by gathering evidence, what tends to happen is that the doctor ends up being isolated, people pull away from the doctor but there might be a strong, albeit very small, opinion of a few colleagues who are strongly supportive of management and then if there's an investigation to see if there is some other substantial reason to dismiss the doctor and that itself is not a thorough investigation. The weight of the evidence will suggest that the doctor simply can't work in that department because no one will work with that doctor and therefore the only route that the employer has is to dismiss. And we are seeing dismissals based on some other substantial reason becoming more frequent than -- well, becoming more frequent.
BERSHADSKI: Thank you. You mentioned the quality of investigations under this process?
LYTHGOE: Yes.
BERSHADSKI: The Inquiry has heard evidence recently from a witness who has suggested that those conducting investigations are often very busy managers who have a day job to do and who aren't qualified or trained to undertake investigations and therefore her recommendation is that there be a centralised body which can be called upon by NHS organisations which has a pool of trained investigators to come in with the idea that they would be a better resource, better qualified and more independent to conduct investigations. Do you have any observations on whether that is a sound suggestion?
LYTHGOE: I have some observations, yes. Sometimes it is the case that managers are very busy and have difficulty in managing it, though my experience is that's usually not the problem. Usually these investigations go on for a long period of time and in supporting the doctor concerned we as a Trade Union raise all sorts of points, usually it's objecting to the procedure but referring to ACAS guidance, referring to MHPS, referring to the general principles of fairness that were they minded to, they could take on board and correct the process and they certainly have enough time to do it. The time periods set out in MHPS for undertaking and completing an investigation of four months is almost never adhered to, it's usually breached by excessively protracted periods. So -- but an independent body or
a body outside the particular hospital would definitely be of assistance in combating that but also in combating those or addressing those situations where the problem is insufficient time or insufficient experience. In terms of what external body there might be, well, there exists one although its remit doesn't directly cover this situation and that is the Health Services Safety Investigation Board. Generally it appears to undertake investigations of, where there are systemic problems rather than individual ones. But the interesting feature about its approach to investigations is the sort of holistic approach and much more aligned to the principles of just culture. Interestingly enough, although it's, it's widely referred to as having been adopted by the Civil Aviation Authority, it's also a policy of the NHS, although frankly seldom adhered to. So I can see an advantage in that. Another advantage -- it's not a direct answer to your question and -- is access to legal advice. Now, one of the problems that I have detected is that often legal advice is not sought and when it's sought, it's often obtained from an external body, a firm of solicitors or something like that. Now, I have only worked in the Trade Union movement
for five years, my previous experience was as a lawyer working for the Army and I think that my experience there where you have lawyers that are understanding the -- the ethos and the values of the organisation and that linked to their professional obligations is probably more likely and certainly was in the case of the Army to lead to a situation where impartial and well-reasoned advice is given to managers, or in the case of the Army, the chain of command. I personally -- that is a personal opinion.
BERSHADSKI: I am going to just you a few questions, if I may, about the Freedom to Speak Up Guardian system. Now, I appreciate that you joined the HCSA in 2020 by which time the Freedom to Speak Up Guardian system was already in place, so am I right in saying that you are not in a position to compare directly the system as it was prior to that with the Freedom to Speak Up system?
LYTHGOE: That's correct.
BERSHADSKI: But can you just tell us your experience of how effective Freedom to Speak Up Guardians appear to be when concerns are raised by doctors with them?
LYTHGOE: They are largely or very often ineffective or substantially ineffective. But that's not a criticism of them as individuals. It's about the circumstances in which they operate.
Issues that seem to be relevant are the time that they have, the range of issues that they have to look at. They don't just address Freedom to Speak Up and in the whistleblowing context it may be more broader concerns are brought to them such as bullying or something along that nature, so there's a vast range -- array of cases are brought to them. The -- they usually -- often they are sort of part-time. Their experience is probably not as much as one would like, I accept they have some training, but often they are being called upon to look at difficult cases with a range of different concerns and navigating the way through that and investigating it is difficult. Another very significant problem is where they report to or who they report to. Very often they are reporting into middle management. They don't have the access that's necessary to draw attention to cases and really to be effective they would need to have access to board level and that's one of the -- it links in with one of the recommendations that we made and was adopted by the Trade Union Council in September this year that boards should be held accountable for this and there ought to be -- although that wasn't a part of the recommendation, it's very short, there ought to be someone nominated on a board who has direct access to and vice versa the Freedom to Speak Up Guardian.
BERSHADSKI: The Inquiry understands that there is already a requirement that there be an Executive and Non-Executive lead for whistleblowing who liaises with the Freedom to Speak Up Guardian. Firstly, is that your understanding and secondly, if that system isn't operating sufficiently well, then why do you think that is?
LYTHGOE: I -- I don't know that directly. It may be the case. But I don't see it as operating very well. I mean, there is a role for a nominated designated, it's called Non-Executive Director, that's specified in MHPS. But we seldom find the situation where representations to that Non-Executive Director are effective in terms of speeding up the process or ensuring that there is a fair investigation and so my sense is that Non-Executive Directors at present do not either fully appreciate the extent of their responsibilities or they are not sufficiently well-equipped to undertake them and that might be because they haven't been trained or it might be because they don't have sufficient support. But -- and it can be challenging, my sense is, for a Non-Executive Director to effectively challenge a Chief Executive Officer, an Executive officer.
BERSHADSKI: I understand that one of the recommendations
that you support is the creation of an independent agency which will deal with whistleblowing complaints. Firstly, is that correct?
LYTHGOE: It is.
BERSHADSKI: Do you or does your organisation have any experience of the Independent National Whistleblowing Officer in Scotland, which has been in place since 2021 and if so, what is your experience of how effective that system has been there?
LYTHGOE: I -- I have experience with one case and we have experience as an organisation with several. In terms of the general view of that it's led to an improvement of the situation in Scotland overall. I think it's from my personal experience I can see the value of it, though the recommendation that we make if we were given an opportunity to flesh it out in more detail would seek to build upon that initiative. So the Independent National Whistleblowing Officer's office in Scotland, they -- it was useful in the case that I was dealing with in terms of leading to the Health Board investigating or reinvestigating or reviewing concerns. But the problem is that the INWO does not have an authority to undertake investigations of the substantial complaint, that is the whistleblowing allegation itself.
It can, as I understand it, I may be mistaken, but it can undertake investigations of the nature of the investigation undertaken by the health board. But it can't go further than that and, yes, I have seen it publish reports which are critical of health boards and that's good. But I sense that it's a good base but it would need to be developed but certainly something along those lines is definitely required for England, Scotland -- sorry, England, Northern Ireland and Wales.
BERSHADSKI: Now, I think one of your other recommendations is that Trade Unions should be designated as prescribed bodies. Can you just explain what that recommendation is and what its purpose would be?
LYTHGOE: Yes. Well, it's a relevant factor in this particular case because in this case the national officer who was advising the doctor member who came with concerns was constrained with what she could do in support of that person because a -- a disclosure to a Trade Union does not provide the protection that a disclosure to a prescribed organisation does. So when a member comes to us raising a concern it inhibits what we can do. So for instance we could not go directly to the employer and say: Dr X has said this and that because
that would be disclosing -- this is what we understand the situation to be, disclosing that the doctor had released or made a disclosure to us even if it was a qualifying one, but we are not protected. And therefore in the context of a situation where there my be a real risk of detriment being inflicted, then it's a risk of that detriment being inflicted and then the doctor not having recourse in an Employment Tribunal to bring a case. And therefore it -- it means that Trade Unions are inhibited in the support that they can provide to their members.
BERSHADSKI: Now, have you already made requests for your Union or any other Unions to become prescribed bodies and, if so, what has the response been to that thus far?
LYTHGOE: No, we haven't actually made, to my knowledge. That may have happened but not yet and I don't believe the TUC has yet either. But it -- it may have done.
BERSHADSKI: A connected question. Can you just explain what policies there are, if any, in your organisation or in any other Trade Unions, if you have knowledge of them, of what somebody in the Trade Union is supposed to do if they receive a disclosure from one, from a member who calls them up or, for example, something like a sexual assault having been committed, are there any policies about what the Union is and is not supposed to do that in that sort of situation?
LYTHGOE: Well, I can't speak for other Trade Unions, so far as our Union is concerned the -- going -- our -- it's partly a campaign, it's partly linked to policy. Our approach is what might be called a sort of wrap-around type protection and the thing that we have identified is that doctors seldom realise at the start that they are making what qualifies as a protected disclosure or the risk that's likely to befall them by raising the issue even, and I am not talking about situations where doctors whistleblow by going to the media. I am talking about situations where they raise a concern in, for instance, a Datix or by other means to their managers. So what we are telling our members to do is preemptively in effect come to us for advice before they make any disclosure and, at that point, we then have to look and this is the -- this links into the way in which we manage such cases, is from the local knowledge that we have of the particular hospital that the doctors' working at to identify whether there is a real risk of them being victimised or not because I am not saying this happens in every hospital, there are hospitals that are receptive to these concerns and do act
appropriately. In that case, one would support the member in going to management. If the concern -- if we have a real concern that the doctor is going to be victimised then it may be -- and we have gone and sought advice from Protect on cases and Protect has been very helpful and of course it comes -- as I understand it, it comes under the -- partly because it's legal advice that's given, the doctor remains protected in speaking with Protect. But the next thing would be perhaps going to a regulator, CQC or something along those lines, and there are ways that can do that. Now, it may not be the most effective of action in terms of going to the regulator. But it -- it would ensure that the doctor had complied with their obligations on -- under good medical practice because I'm sure you have heard already the problem that doctors are faced with is that they have a professional obligation to raise these concerns but in doing so it often results in the victimisation that I have talked about being visited upon them. So our obligation, though we have a concern for patient safety and the functioning of the NHS that's in built into the structure of HCSA and the way it operates we also have -- and our most immediate concern is the
doctor and we are having to think both of the potential internal and disciplinary processes and also the potential risk of adverse action being taken by the regulator, the GMC.
LADY JUSTICE THIRLWALL: So just following up on that, if you don't mind, Mr Bershadski. So far as the situation where an allegation is made by a doctor of something going on, in this example it's sexual assault or sexual assaults, is there any obligation on the hearer of that information within the Union doing anything about it independently?
LYTHGOE: Oh, well, part of the problem is the constraint in terms of whistleblowing that I mentioned before and not being a prescribed organisation.
LADY JUSTICE THIRLWALL: Yes.
LYTHGOE: We -- not independently but with the support of members, we would and so I might have done -- written to NHS England, I have written to the GMC on behalf of members in particular cases with their authority. Another thing that a Trade Union -- the reason that Trade Unions --
LADY JUSTICE THIRLWALL: Sorry to just cut across you: you might write a letter with the agreement of the person who's made the disclosure to you?
LYTHGOE: Yes.
LADY JUSTICE THIRLWALL: But that would -- just help me about this: would that presumably be informed by your advice in relation to the consequences for the doctor?
LYTHGOE: Yes. We would have to think --
LADY JUSTICE THIRLWALL: So it's not an independent thing, it's part of that --
LYTHGOE: Yes, it's not independent and it's not that frequent for the reasons --
LADY JUSTICE THIRLWALL: No.
LYTHGOE: -- that I have said.
MR BERSHADSKI: So would there be -- sorry, my Lady?
LADY JUSTICE THIRLWALL: No, I have finished thank you.
MR BERSHADSKI: On the same theme, would there be any circumstances where the information that the hearer receives is -- is such that regardless of the consent of the person who has given that information to them that they would approach an external agency with a concern, or does that simply never happen?
LYTHGOE: It's not happened in my experience. It would be based upon the consent of the member and that's the way we operate. The other thing -- just whilst I have this opportunity, one of the other things that Trade Unions can do is collective grievances. A member can raise an individual grievance but part of the problem that I've referred to already is the isolation of the doctor and one of the policy approaches that we have and one of the reasons for this sort of pre-emptive approach is to try and build alliances for the doctor if we think there is risk of victimisation before they blow the whistle. So that rather than the management being able to focus on an individual doctor, it's a situation where actually there are several doctors, they are mutually supportive and it makes it a much more challenging situation. That has assisted in at least one case that I have dealt with. The other aspect and advantage of Trade Unions is that Trade Unions can co-operate and so although this evidence that I am giving is focused on the concerns of doctors, because it's a doctors' Trade Union, there are other staff groups, in particular nurses, sometimes they suffer in linked situations and I have one experience of that, with the doctor that we are representing. So if one can bring together several Trade Unions representing different staff groups, the position in terms of responding to the safety concern and protecting the people that are being treated adversely, employees,
doctors or nurses, is stronger.
BERSHADSKI: So is there a system between Trade Unions that somehow encourages sharing of information to allow that sort of combined approach to take place or is it just a purely informal --
LYTHGOE: Yes, I don't know of any formal system, it's an informal one based upon knowing people and other Trade Unions in a particular hospital or region.
BERSHADSKI: While you mentioned the subject of grievances, the Inquiry has heard evidence from other, from experts that there are frequent occasions or certainly there are occasions where people about whom concerns have been raised then utilise HR policies, including grievance policies, as a sort of defensive manoeuvre, to try and divert attention away from the concern that's been raised about them, if you see what I mean. Is that a situation that you have come across?
LYTHGOE: I -- I don't have direct experience of that myself, although I -- from the national officer who was representing the doctor in this case that was our member, I understand that was the case and it wouldn't surprise me. Of course, I mean, someone may do it in an obstructive way, a protective way, it might be that they are advised to do that by that are Trade Union and the Trade Union itself is looking after the interests of the
person concerned and doesn't appreciate the genuine background safety concerns. So the fact that one a person raises such a grievance in such a situation, it's not necessarily because there is some advice by their representative to do something that's obstructing an appropriate process, they might simply not be aware of the full background. I don't -- I simply can't speak with any knowledge so far as this case is concerned.
BERSHADSKI: Do you think there is a necessity to regulate managers in the NHS?
LYTHGOE: Yes, we do. And HCSA does and I do as well. And I note actually that there's -- the Department of Health and Social Care has initiated a consultation that's likely to lead to that and although I don't believe it's mentioned in there, it might be, but the model of the Financial Conduct Authority of a fit and proper person something along those lines, I think is an essential requirement. Now, we -- the NHS needs -- and I worked in the NHS for a short period of time myself for NHS England, it needs a leadership that genuinely embraces this issue. There is quite a policy in the NHS, as I mentioned, just culture, there is other documents as well, but it does not appear to impact upon senior Executives or senior or
even middle management to the extent that's necessary to bring about the change that's required for -- not just for doctors and not just for nurses, but for patients and the safety of the NHS, those that work and are treated by the NHS.
BERSHADSKI: The Inquiry heard evidence yesterday from somebody with significant experience of the Freedom to Speak Up Guardian system who said that one of the problems from her perspective is a culture of secrecy and lack of sharing of information once a concern has been raised and following an investigation. Is that something that you have experienced and do you have any views on that?
LYTHGOE: It -- a lack of adequate sharing of information is a problem. It's partly a problem I think due to access of the Freedom to Speak Up Guardians. The -- but also one has to bear in mind the context. One doesn't necessarily need to publish this widely and broadly. If a concern is raised initially what's -- from my opinion, what's required is that it's investigated appropriately and then if something -- the result of the investigation, if there is a foundation to the concern should lead to remedial action. Now, it, it wouldn't and because that remedial action may involve for instance retraining of a member of staff, which could be a doctor or something along those lines, because some of the problems, it has to be said, are substandard performance by clinical staff. That would be doctors and nurses, some are, yes. One should be able to have a system whereby the information is only shared with those who absolutely need to do it and have the authority to address the problem which might be a retraining. One wouldn't necessarily want a situation, for instance, where there was -- there ended up being a public -- might end up humiliation of a clinical practitioner, whether it is a doctor or nurse, if they can be adequately retrained and restored to effective practise in the health service. So I think it's like many things, isn't it, it's a matter of degree as to how much publicity there needs to be, but my sense is that there is an inadequate passage of information from a number of reasons and that's one of the problems.
MR BERSHADSKI: Thank you. My Lady, those are my questions. I don't believe there are any questions from the Bar in relation to this witness.
Questions by LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: Thank you, Mr Bershadski.
May I just ask one or two questions? I think you told us at the beginning of your evidence just over 3,000 members, of whom 2,000, or two-thirds, are Consultants?
LYTHGOE: In -- in rough terms, yes.
LADY JUSTICE THIRLWALL: In rough terms yes, and then we looked at a survey where I think the number of Respondents to the survey was 562 or something a bit like that. We can look at that if that helps. Was that a survey that was sent to all your members, some of your members or just a specific group?
LYTHGOE: It was sent to all our members.
LADY JUSTICE THIRLWALL: In terms of a response rate, that's one that you would feel you can draw conclusions from the number of responses that you have got?
LYTHGOE: Yes, it is. It's -- I mean, this is not an official survey of course, it is completely voluntary.
LADY JUSTICE THIRLWALL: No, I understand.
LYTHGOE: And that is a sound response rate and not only that, the responses are consistent with the experience of the national officers who advise members on particular cases. So we believe that it is the conclusions that are drawn by it and are a fair representation of the
situation.
LADY JUSTICE THIRLWALL: Thank you. There was just one matter which you touch on very lightly and it's that you do make a suggestion that you say: we would argue that it would send a very strong message of deterrent if we introduced a criminal offence of causing detriment to individuals who have made protected disclosures. Is that something that you have raised beyond your statement here, is that something that's under discussion?
LYTHGOE: No, at the moment that's been put, that was in that submission and the motion that was adopted by the TUC. In terms of writing to Government and that we haven't put that forward as a particular concern. But the -- there is scope in my mind for the criminal law to be involved in here. Some of the treatment is so abusive that it -- it's, it seems an appropriate response and harassment might be another example. There's even a concern about the extent of it and, and it's -- it's -- not only is there a case by one doctor about destruction of evidence and emails or elimination, but that was actually endorsed broadly by the retiring NHS Ombudsman -- Health Services Ombudsman, Rob Behrens, in an interview with the Guardian.
LADY JUSTICE THIRLWALL: We are hearing from him next week.
LYTHGOE: Sorry.
LADY JUSTICE THIRLWALL: We will ask him about that.
LYTHGOE: I am very glad to hear that --
LADY JUSTICE THIRLWALL: Sorry, I didn't want to cut you off.
LYTHGOE: No, no I have answered the question.
LADY JUSTICE THIRLWALL: Thank you very much indeed. Anybody want to ask anything else? No, well, thank you very much indeed for coming to give us your evidence, Mr Lythgoe, you are free to go now.
LYTHGOE: Thank you.
MR BERSHADSKI: My Lady, I believe Ms Raphael is in the room and so we are in a position to carry straight on.
LADY JUSTICE THIRLWALL: Very good, excellent.
MS SYBILLE RAPHAEL (affirmed)
LADY JUSTICE THIRLWALL: Do sit down. Mr Bershadski.
Questions by MR BERSHADSKI
MR BERSHADSKI: Could you state your full name please for the Inquiry?
RAPHAEL: Sybille Raphael.
BERSHADSKI: Have you made a statement dated 4 March 2024?
RAPHAEL: I have.
BERSHADSKI: Is that statement true and accurate to the best of your knowledge and belief?
RAPHAEL: It is.
BERSHADSKI: Now, Ms Raphael, you are the legal director of a charity called Protect, is that right, and could you just please begin by telling us about what it is that your charity does and what your role within it is?
RAPHAEL: Protect has three arms, so at the heart of the charity is our free legal advice line where we advise workers on how to raise their concerns in the most effective and the safest way and we also advise them on their legal rights when things go round -- go wrong. We are unusual as a charity because we self-fund and we do that by selling training and consultancy to organisations, to companies, to businesses, to regulators on how to set up and to maintain effective whistleblowing systems. So we help at the microlevel, we help individual whistleblowers but we also help at the macro level because we look at systems and it is very satisfying because we work with the -- these organisations who are
leaders in the field with best practice, those who really want to do whistleblowing right. Our third arm is our policy and research arm. We were set up in '93, we have campaigned for the UK to adopt a law to protect whistleblowers which it did in '98, 26 years ago. And we -- we kept its very strong and important policy and campaign function undertaking research and responding to consultations.
BERSHADSKI: Thank you. Ms Raphael, if I could just ask you to speak up a little bit for the assistance of creating the transcript. How long have you been the legal director of Protect?
RAPHAEL: I have been the legal director of Protect for four years.
BERSHADSKI: Prior to that, were you also involved in Protect or was your career elsewhere?
RAPHAEL: No, I was working for another charity, focused on discrimination and parental rights, so also an employment law charity but not about whistleblowing.
BERSHADSKI: In your experience firstly, can you just outline for us what your understanding is of how a serious concern that's raised to do with for example patient safety ought to be dealt with by management, if
they receive it?
RAPHAEL: The role of a whistleblower, the role of a worker who spots that something is wrong is to raise it, to raise it to someone who can deal with it. The role of the person who receives the concern is to identify what sort of concern it is and then to investigate it. It's also important we say to be seen to investigate it and to be seen to take remedial action because otherwise the whistleblower and others within the workplace will believe it's pointless to raise concerns, it's pointless to raise issues because nothing is done about them. And of course the role of the person who receives the concern is also to protect the whistleblower because victimisation of whistleblowers is a very common and a very natural default mode for all of us. No one likes being brought a problem. It's far easier and very tempting to blame the messenger and to shoot at the messenger rather than address the message. So the role of the person who receives the concerns we say is also to prevent victimisation from happening in the first place. I would also say more generally the role of management is not just to allow staff to raise concerns,
it is to empower them to raise concerns. Whistleblowing is the best risk management tool that organisations have. We know it's far more efficient for instance than internal audit to discover fraud. We know as well that it's absolutely crucial element to patient safety. So why wouldn't an organisation take it seriously and investigate an issue? Crucially, it's not for the whistleblower to investigate themselves. The role of the whistleblower is only to alert management and it is then for management to investigate and that's behind our law which Parliament passed to encourage responsible whistleblowing. It's also behind the NHS Speak Up policies. It says that once you raise a concern, someone else will investigate, someone who is trained and can handle that properly. Whistleblowers only have a tiny angle on an issue. It may well be that this issue has a perfectly honest and innocent explanation but it may look dodgy from the whistleblower's angle. So of course it's not for the whistleblower to determine whether or not there is something dodgy, there needs to be an investigation by someone else.
BERSHADSKI: Connected to that, is it the obligation of the whistleblower or the person raising a concern to bring evidence forward behind that concern?
RAPHAEL: Absolutely not. And indeed the whistleblower will probably put themselves at risk if they started doing so because they would probably, you know, collect confidential information that they must not do, you know, it goes beyond their role. The role of the whistleblower is just to alert; not to seek hard evidence that would, you know, prove their concern. It's not for the whistleblower to prove their concern. The law is very clear that the only thing the whistleblower needs to have to be protected by law is a reasonable belief that there is a risk of a wrongdoing happening or that wrongdoing has already happened. It's only the reasonable belief. It's perfectly normal for whistleblowers to be mistaken, indeed if an organisation never has any mistaken whistleblowers we say that's quite worrying, it means that their staff are far too worried to report risk and that the organisation is missing out on -- on using to the full the eyes and ears that the workers have to -- to spot and manage risks.
BERSHADSKI: Now, Ms Raphael, presumably your organisation deals with whistleblowers from all sorts of industries and not just healthcare sector or the NHS. Can you just tell us in your experience what
proportion of healthcare workers find their concerns when they have raised them have been adequately dealt with? I think you deal with some figures on that point at paragraph 28 of your statement, if that assists.
RAPHAEL: So whistleblowers from the healthcare sector --
BERSHADSKI: Yes.
RAPHAEL: -- are the most important categories of our callers and NHS callers obviously represent a big proportion of that particular category. 31% of our callers in the NHS tell us that their concern has been ignored. "Ignored" means not even investigated. "Ignored" doesn't mean it has been unsubstantiated, "I was told I was wrong". No, no, "ignored" means no one has done anything about it. It is like throwing a pebble in a dark hole, it is completely pointless to raise that issue because no one took any notice. That is very worrying. The other extremely worrying figure is the 63% of NHS callers who tell us that instead of being thanked for doing what they should do, which is raising a concern, they have been punished for it so they have been victimised, they have been forced to resign, they have been dismissed, they have been ostracised, they have been subject to a disciplinary process because of
it.
BERSHADSKI: How do those figures compare to other industries that you have experience of?
RAPHAEL: They are not widely different from other industries. Whistleblowing is a dangerous thing to do. It's an absolutely vital thing to do, it's what holds -- you know, to me it is a cornerstone of our rule of law and of our Parliamentary democracy, the ability to report wrongdoing. It is key to accountability, it is key to deterrence, it is obviously key to ensure that wrongdoing is detected but it is indeed a dangerous activity. What we find in particular in relation to NHS workers and we usually find those calls painful because there does seem to be a blame culture in the NHS, more of a blame culture in the NHS than in other sectors. Also because the concerns themselves are not necessarily easy. Sometimes a concern is actually a difference in medical opinion and when is it wrongdoing? When is it disagreement as to what's the best treatment for that particular patient is? Even more often it's an issue about resources and no one can do anything about it in a way, you know, there is not enough of us, we have too much to do and that means that the care that we deliver is substandard
and we are putting people at risk. What's also obvious to us is that in comparison to at least the financial sector there seems to be a lack of accountability at senior management level, which is very worrying, and although there are a plethora of regulators in the health sector, there doesn't seem to be a single regulator that's actually focused on punishing those who silence whistleblowers, those who victimise whistleblowers and punishes those who don't do what they should be doing ie investigate serious concerns. So our callers tell us that when, for instance, they go to the CQC to alert the CQC that there has been whistleblowers victimisation. The CQC replies that it is not for them to deal with that, there is an Employment Tribunal process if they want to do that. So no one at -- at a senior management level feels responsible for ensuring that whistleblowing is done properly, that whistleblowing is effective, and the NHS has lots of wonderful policies but what matters is not the policy, it's how it's implemented and no one seems to be responsible for ensuring that these policies are indeed implemented and that they work, that they are effective.
BERSHADSKI: What's your experience of how whistleblowers are -- what detriments befall them in the NHS?
RAPHAEL: Isolation is a very common one, when you report a concern. By definition you are disagreeing with the rest of the group no one else seems to have said anything about it, maybe, maybe you are wrong because no one else think it's a problem. It's very isolating to blow the whistle. By definition you are separating yourself from -- from the group. But then we see much worse than that. So we see active victimisation. We see the use of Datix, like what you have heard just now, we have had several callers who said that after they reported a whistleblowing concerns, Datix has been used to -- against them in a -- in a totally inappropriate way, you know, every single little incident which would be perfectly fine for anyone else was suddenly put on Datix because it was against them. Use of disciplinary threats or use of disciplinary sanctions, referral to the GMC or veiled threats that they are going to be referred to the GMC and -- and of course managing them out and ensuring that they leave that particular Trust. We see the whole gambit.
BERSHADSKI: You say at paragraphs 45 to 48 of your statement that there are particular problems regarding
raising concerns for those with protected characteristics. Can you just tell us a little bit about that and why there appears to be a difference there?
RAPHAEL: The more vulnerable you are, the more difficult it's going to one, believe that you will be taken seriously, that you will be believed, that you will be listened to; and two, that you will be protected if you blow the whistle. I often say that I have absolutely no problem blowing the whistle as a legal director of Protect to my board because I know the trustees, I feel quite secure in my job. Very, very different if I have just started at the bottom, you know, as the most junior legal adviser and if I don't look like the rest of the group, if I am the only one of my kind. You are already much more vulnerable. So the likelihood is that you are not going to raise speaking up and the likelihood is that also if you do speak up, you are not going to be listened to, people won't pay attention to you because they will think that you are not credible or whatever. So we are very conscious that, yes, increased vulnerabilities -- if you have a protected characteristic that puts you already at an increased risk, both of victimisation when you speak up but also
of just not, not feeling empowered enough to speak up in the first place.
BERSHADSKI: I just want to ask you a few questions, if I may, about the Freedom to Speak Up Guardian system. I think you say in your statement that one of the bits of advice that you give sometimes when you receive calls from NHS workers is to direct them to raise their concerns with the Freedom to Speak Up Guardian in their Trust. But what is your experience of the effectiveness of Freedom to Speak Up Guardians? Dealing with concerns?
RAPHAEL: On paper, having a Freedom to Speak Up Guardian, having several Freedom to Speak Up Guardians in your place of work is wonderful. This is advice and support by one of your colleagues that should be very accessible and that's indeed something that's extremely valuable, although we give advice legal advice and support to our callers we you know we advise many different kinds of callers we don't have intimate knowledge of that particular place of work, there is particular pressure around it. So having someone to support the whistleblower and be there in that role is great. The main problem we think is that that particular person, the Freedom to Speak Up Guardian, is to provide the sort of more
support, common sense, ideas, okay, how -- maybe how can you raise it differently, have you tried using that channel et cetera. But that Guardian is also tasked with holding senior management to account if the concern is not investigated and be basically the sort of Speak Up advocate and we don't think that these two roles are being done properly. We don't even think that the first role, the role of support, is necessarily being done properly, not -- obviously I can't speak on individual cases and we know that there are some wonderful Freedom to Speak Up Guardians but on the whole we believe that Freedom to Speak Up Guardians just don't have the resources to be able to help effectively whistleblowers, partly because they are tasked with helping with anything and everything, including eyes rolling, so it is quite hard for them to be able to sort of allocate enough resources to the really important whistleblowing public interest concerns when they -- when they receive those. But on -- you know, holding the board to account you have just heard they don't necessarily have access to the board anyway and they are part of that my -- line management themselves. So it's also very risky for their personal situation if they start making some noise and kicking up a fuss against a Chief Executive who they think has not investigated a concern properly. So we think it's absolutely key that there is someone higher up who should really be there to be the whistleblowers' champion following maybe the model of the financial sector whistleblowers' champion to ensure that critical conversations are held at board level and it's taken really seriously.
BERSHADSKI: How comfortable do your callers appear to be in contacting their Freedom to Speak Up Guardian with concerns?
RAPHAEL: We don't necessarily hear of any discomfort, but we hear of: it's pointless, you know. Why would I, if I'm a Consultant, the Freedom to Speak Up Guardian is a nurse, they may not even understand or -- it just doesn't seem to be the natural fit. And if I have contacted my Freedom to Speak Up Guardian, well, they didn't really help, they couldn't do much about it anyway so why would I? So it is not really discomfort, it's more discouragement.
BERSHADSKI: There has been a proposal by one of the other witnesses that the Inquiry has heard from for the function of the Freedom to Speak Up Guardian to be externalised in effect for them to be employed by an organisation which is not the Trust itself. What do you
think about that recommendation and whether it would assist?
RAPHAEL: Why not? And if indeed it's properly resourced and more importantly if that external person has the ear of the board and therefore can hold senior management to account more effectively then, then great. I mean, as usual with policies it's not the policy that matters, it is how it is implemented in practice, it is how it works in practice. Yes, we are all for it if that means increased accountability and increased access to the board. I suppose it will also mean a ring-fenced set of resources, I think the problem with Freedom to Speak Up Guardians is that they don't necessarily have any resources, the Trust are left free to fund their role or not and we know that some of them are not funded at all. So if there was an external body I imagine then at the very least then there would be some reassurance that something does exist that's probably paid for.
BERSHADSKI: Have you got any experience of the Independent National Whistleblowing Officer system in Scotland?
RAPHAEL: We do. We were asked to help to contribute to the drafting of the standards.
BERSHADSKI: What has been your experience of any differences between the effectiveness of that system
versus the system we have in England and Wales?
RAPHAEL: It's been positive. It's been positive mostly on that accountability piece because INWO, you know, has teeth because INWO will go to the board and will say "this is not good enough, why haven't you investigated?" And if the board doesn't still ignores then INWO will go to the Scottish Parliament and will publish their findings. You know, there is a real threat here. Whereas the poor FtSUG, the poor Freedom to Speak Up Guardian, have none of those weapons at hand. So, yes, we say it's been helpful. It's also been helpful to have much clearer and much more precise standards of what a good investigation looks like and that's detailed in -- in the standard. The Freedom to Speak Up policy in England is actually quite vague, whereas the INWO standard goes into the detail of "this is what you need to do", which we think is helpful.
BERSHADSKI: One of the legal reforms that I understand Protect is seeking to have implemented is an independent agency to be established in England and Wales. I think you call it the "Whistleblowing Commissioner" in one of your documents. Can you just set out for us what you see the functions of that body being?
RAPHAEL: Well, a little bit like INWO does but more
generally across the piece, more generally for the society. Our law, our UK law, is an "after the event" law. The only thing our law says is: oh, if an employer punishes or dismisses a whistleblower, then the whistleblower can go to the Employment Tribunal and get money and get compensation for it. There's nothing in our -- in our legal system that -- that's actually forces employers to have systems in place and we are at odd with our neighbours because in the EU now there is an EU Directive that says any employer who has more than 50 workers needs to -- you know, needs to investigate possible concerns when they are brought to them, needs to protect the confidentiality of the whistleblowers, needs to feed back, needs to organise an investigation by someone who appears impartial. So we are hoping that if indeed we have a Whistleblowing Commissioner, that Whistleblowing Commissioner will be able to draft those key good practice principles and then will be able to impose civil penalties on those organisations who don't follow those principles and therefore will have teeth and will say it matters: If you don't do it, it matters, there will be a penalty if you don't do it; therefore do it.
BERSHADSKI: Just to be clear, is Protect's proposal that there be a legal duty on certain employers to investigate concerns that have been raised?
RAPHAEL: Yes. Because why wouldn't you? I mean, you know, it would be madness not to want to investigate when things have gone wrong. I think it's just common sense. It's -- it feels to us it is madness that organisations don't do it.
BERSHADSKI: You say at paragraph 43 of your statement that the NHS is trying to implement a just culture which is blame free, similar to the aviation sector, but that the reality on the ground doesn't match this. Can you just explain that to us, please? Firstly, what is the just culture in your understanding?
RAPHAEL: The just culture is a culture where, when you report that something is not right you are not blamed personally for it. And actually you are thanked for doing that and it's a sort of -- I mean, it's not a no blame culture because if there is evidence that an individual is indeed at fault, you know, there will be remedial action and so on. But it's -- it's a culture where reporting wrongdoing, reporting issues is -- is encouraged and actually not just encouraged but is part and parcel of what you should be doing. What we see in the NHS is that far too often when
you report -- when you report something, you know, you become the subject of the blame, the narrative turns against you instead of the underlying cause of the issue partly because the underlying cause of the problem that you report is far too painful to deal with, much easier to try to silence you. But that's certainly our experience. Now, we don't hear about all the many happy ending whistleblowing stories necessarily because although some of our callers call us before they raise a concern, a lot of our callers call us after they have raised a concern because they have been ignored or because they have suffered because they have raised a concern. So we have a slightly skewed view on -- on, you know, how happily whistleblowing takes place in the NHS. But it's fair to say that, from where we stand, it's -- it's a painful picture.
MR BERSHADSKI: My Lady, I see the time. I don't have many more questions for this witness so it may be convenient.
LADY JUSTICE THIRLWALL: I think we will take the break now and we will come back in at 20 to 12. Thank you.
(11.18 am)
(A short break)
(11.40 am)
LADY JUSTICE THIRLWALL: Yes.
MR BERSHADSKI: Ms Raphael, we talked a short while ago about the notion of externalising Freedom to Speak Up Guardians to take them outside of the Trust so that they are employed by another body and that that's one potential way the current system could be changed. The other way or another option is the Scottish model where there is the Independent National Whistleblowers Office which, as we understand from another witness, is mainly there to come in after the event if there is a worry that a concern has not been dealt with appropriately and to then come in and make recommendations. Which of those two models or some sort of hybrid of the two is it that you think would be most effective in the NHS setting in England and Wales?
RAPHAEL: I would argue you need both. You need both a Freedom to Speak Up Guardian who can be effective during, during the investigation and can and have better resources, better access, better gravitas maybe, to help the whistleblowers more effectively and you also need an INWO type body who is able to come and mark the homework of the organisation and say: look, you have not -- you know, you have not done it properly. You need to -- you have not respected the standards, you need to redo it or
you need to look into what went wrong here.
LADY JUSTICE THIRLWALL: Can I just ask. So that would you two new organisations, for want of a better word, which obviously would require money to pay for them. And is there a way, do you think, of sort of amalgamating the two, or do you think actually they are usefully kept separate, so you would have the independent investigators and then the reviewing body?
RAPHAEL: I think if I were to choose between the two, maybe the reviewing body, because it really strikes me this sort of lack of accountability. I mean, you know, in the Countess of Chester Hospital, we know that the CEO openly and expressly discussed plans to retaliate against whistleblowers because they had blown the whistle and we know that HR did not find those plans reprehensible, only disappointing. That is despite us having a law for the last 26 years which says very clearly that whistleblowing victimisation is illegal. There doesn't and we -- we put a Freedom of Information Request to the Countess of Chester Hospital to ask if they had reviewed their policies and processes after the conviction of Lucy Letby into what, if anything, went wrong in their treatment of whistleblowing and they said: no. We have, you know, updated it along with the guidance but no, we haven't changed anything following anything that happened specifically within the Trust.
LADY JUSTICE THIRLWALL: So just pausing there, of course I have to make decisions about what happened and who did what, when and I will be doing that in due course and in my report. But going back to the accountability point, which I understand is an important one, what about -- would the CQC be a suitable body that could look at the whistleblowing policies?
RAPHAEL: Yes, yes. Potentially. We say it's -- it's not just having a policy. You really need to look at your governance, you need to look at your senior management because of course if you have senior leaders who don't model the behaviours they want to see that set the tone for the whole organisations, you need to look at your engagement, your communication, your training: Do people know how to blow the whistle? Do they know what to do? Do they know what is whistleblowing? Are managers trained on how to receive those concerns? And you need to look at your operation, how do you investigate concerns, how do you keep records? Do you feed back to the whistleblower? What is it that you do? You really need to, yes, check the effectiveness of -- of your systems and we in an ideal world would want each
organise to do it and to do it voluntarily but if they don't do it then having a regulator that says: look, if you don't do it, we will come after you is -- is obviously important.
LADY JUSTICE THIRLWALL: Yes, thank you very much indeed.
MR BERSHADSKI: Thank you, my Lady, I have no further questions for this witness. Thank you.
LADY JUSTICE THIRLWALL: Anyone have any questions? No, well, thank you very much indeed, Ms Raphael for coming to enlighten us today. It's been very helpful evidence. Thank you, and you are free to go.
RAPHAEL: Thank you.
MR BERSHADSKI: Yes, my Lady, Mr De La Poer, King's Counsel, will be taking the next witness.
LADY JUSTICE THIRLWALL: Very good. Don't wait, Mr Bershadski, unless you want to. (Pause) There's no rush, Mr De La Poer, I think we finished more speedily than you had been warned. Now it is Mr Bowers next.
MR DE LA POER: It is, I think he is just being brought up.
LADY JUSTICE THIRLWALL: Professor Bowers.
PROFESSOR JOHN BOWERS (sworn)
LADY JUSTICE THIRLWALL: Do have a seat and get your breath back, we reached your evidence a bit more swiftly than we expected.
BOWERS: Yes.
LADY JUSTICE THIRLWALL: Mr De La Poer.
Questions by MR DE LA POER
MR DE LA POER: Please could you give us your full name?
BOWERS: John Simon Bowers.
DE LA POER: Is it correct that although, strictly speaking, you are Professor Bowers, you generally go by Mr Bowers?
BOWERS: Yes, 99% of the time. So yes.
DE LA POER: Mr Bowers, you have provided two expert reports to the Inquiry. Can we begin by inviting you to confirm that their content is true to the best of your knowledge and belief?
BOWERS: Yes, they are.
DE LA POER: Now, in terms of your background and in due course, your CV will be published, can I just take you through some of the highlights. Were you called to the Bar in 1979?
BOWERS: Yes.
DE LA POER: Did you take silk in 1998?
BOWERS: Yes.
DE LA POER: In that same year, were you appointed as a part-time employment judge?
BOWERS: Yes.
DE LA POER: Were you promoted to the Employment Appeals Tribunal in 2000?
BOWERS: Yes.
DE LA POER: Appointed a Recorder of the Crown Court in 2002?
BOWERS: Yes.
DE LA POER: Appointed Honorary Visiting Professor in Law at the University of Hull in 2008?
BOWERS: Yes.
DE LA POER: Deputy High Court Judge in 2011?
BOWERS: Yes.
DE LA POER: And in 2015, appointed Principal of Brasenose College, Oxford?
BOWERS: Yes.
DE LA POER: Is that a position you hold to this day?
BOWERS: I do.
DE LA POER: In terms of your private practice, firstly academically, are you a frequent lecturer in employment law?
BOWERS: Yes.
DE LA POER: Are you the author of 15 books?
BOWERS: I think 16 now.
DE LA POER: 16 and no doubt numerous regardless in publications?
BOWERS: Numerous, yes.
DE LA POER: Are you a trained mediator?
BOWERS: Yes.
DE LA POER: And an independent adjudicator in local government disputes?
BOWERS: I was, that has ceased now.
DE LA POER: So far as your private practice as a barrister is concerned, do you have experience of acting both for employers and employees?
BOWERS: Yes.
DE LA POER: You have, I believe, appeared before the House of Lords?
BOWERS: Yes, and the Supreme Court.
DE LA POER: The Supreme Court, the European Court of Human Rights?
BOWERS: Yes.
DE LA POER: The Court of Justice of European Union?
BOWERS: I have.
DE LA POER: You will forgive me if I stop there.
BOWERS: Of course.
DE LA POER: The full details will be in your published CV. Now, before we come to look at the content of your
reports, one of the matters that the Inquiry has been making frequent reference to unsurprisingly is the case of Beverley Allitt --
BOWERS: Yes.
DE LA POER: -- and the Clothier Inquiry which followed. I understand that you had some involvement in that case and I just wonder if you could --
BOWERS: I did in the sense that I acted in resisting an injunction application by two of the doctors who had been involved at Grantham Hospital. I wasn't involved in the Clothier Inquiry but I am familiar with its findings.
DE LA POER: Now, turning to the questions that the Inquiry asked of you, we will start with your first report, if we may, and the first question you were asked was to consider a number of the policies that were in place in 2015/16, namely the grievance policy, the disciplinary policy, the guidelines for the conduct of formal investigation and the whistleblowing policies and you were asked to consider whether you regarded them as being typical of their time and what conclusion did you reach?
BOWERS: Yes, I think they are quite typical. It's probably not surprising because they derive from guidance in the ACAS Code on Disciplinary and Grievance
Procedures.
DE LA POER: Now, as you say, they derive. Put bluntly, are many of the parts of them what could be regarded as a copy and paste from existing other policies?
BOWERS: Yes, I didn't mean that in a detrimental fashion.
DE LA POER: No.
BOWERS: But I think that if you put most NHS policies together, you would find great similarities and indeed in other parts of the public sector. Private sector tends to be a bit different.
DE LA POER: Do you regard that as an acceptable approach; in other words to be derivative as opposed to creating something bespoke?
BOWERS: I think so because the employment issues would be very similar in -- in most NHS Trusts. I mean, obviously it differs in different parts of those Trusts but these policies are at a very high level of generality and I think it, you know, might be surprising if you found that there was a different system at the Countess of Chester Hospital as opposed to a Liverpool hospital, for example.
DE LA POER: Now, the black letter of the policies is one thing, there is a separate question in relation to policies as how they can be used practically, how they
can be understood by members of staff. Do you have any view on the way in which such policies can be made more available to people, so not just physically necessarily but conceptually as well?
BOWERS: Well, it's very important that they are clear, it's very important that they are disseminated throughout the Trust and that there's appropriate training on them because like every policy and probably every law, it comes into contact with the culture of the particular employment. So you can have a very open policy about whistleblowing, but the culture may be such as to retaliate or resent the whistleblower and that's what really needs to be addressed. But, yes, I think training and dissemination are probably the key.
DE LA POER: The comment that you make in relation to the whistleblowing policy is that much long along the lines of what you have just said, that the real issue is whether there is a culture in the NHS Trust in which employees truly feel secure and you cite your experience over very many years that the response from management is too often defensiveness towards the concerns and aggression towards the whistleblower?
BOWERS: And that is particularly the case in the NHS I'm afraid, in -- in my experience.
DE LA POER: So far as you can tell from your numerous examples of this, what is the reason for that?
BOWERS: That is very difficult to say. I think there's -- it may be because of the very different professions involved in there that some professions don't relish challenge. I think that's probably all I can say.
DE LA POER: Now, you do comment on the grievance and we will come back to the grievance process in greater detail, as being rather unspecific about the practice of grievance. That is at your point A on page 2.
BOWERS: Yes.
DE LA POER: So on the one hand these are -- have appropriately been derived from other guidance that's been developed and are typical of their time but are rather unspecific. Is that a reflection that back in 2015/16 the understanding about how grievances should be run and the guidance given was less well developed than it is now?
BOWERS: Yes, I think so. I mean, it's obviously learning from experience. But I do emphasise throughout the report that there are many different sorts of grievances. I mean, obviously this was a grievance essentially about redeployment. But there can be very minor grievances
about who said, who said what and so the grievance policy has to look at all of those. It has to look at grievances that can be dealt with in writing, it has to deal with grievances that do require an oral hearing.
DE LA POER: So that's your, the first question you were asked. You were also asked to look at the current policies and procedures and whether you think that they are fit for purpose. What was your conclusion in relation to the 2024 position?
BOWERS: I think they are fit for purpose, bearing in mind that they need to be general and to deal with all sorts of issues. Within that, though, there needs to be a view, for example, about how those hearing grievances should be selected and what training they should receive, which perhaps should be developed further. But I think at a general level, they are very satisfactory. I -- I think the issue is the culture with which they are imbued and I think actually Robert Francis in his report about whistleblowing in the health service very much said it wasn't a question of further law being developed but changes in culture. I would agree with that.
DE LA POER: You are invited to consider whether the policies currently in place equip managers to take decisions in situations where a nurse or doctor is
suspected of harming patients. That's at your page 4, the third question. And what conclusion did you reach on that?
BOWERS: Well, I think generally, they do. But I would say two things: firstly, there's a tendency to consider employment issues separate to the issues of patient safety so that we look as employment lawyers, for example, at whether the employee might have a potential claim for constructive dismissal or have a valid grievance and perhaps put issues of patient safety into another box and maybe that can be dealt with by having within the employment sphere an overriding objective of some sort to take into account patient safety in all the employment decisions. The other area which of course -- and of course I don't know the facts, I haven't studied the facts, but that does seem to arise here, is about the use of redeployment which is a constant issue that it is used sometimes to avoid a disciplinary process, but as an easy option and that isn't provided for specifically. The reason why people do that is that disciplinary proceedings can take a very, take up a lot of time. It can be costly and by cost I don't just mean financial cost, but the cost to the morale of the institution and also pit professions against each other, for example
nurses and doctors. But it -- it can be other professions as well.
DE LA POER: On that point of redeployment or suspension, as it may be, within safeguarding when a risk is identified it is expected that immediate action is taken to address that risk. If the risk is from a person or may be from that person, then from a safeguarding perspective the correct response is to remove the person from that situation so that they no longer pose a risk. From an employment and discretionary perspective, suspension or redeployment may be the outcome of a legitimately run process?
BOWERS: (Nods)
DE LA POER: But if you are simply following that process, there is a risk that the individual may still be able to cause harm when thinking about it from a safeguarding perspective?
BOWERS: Yes.
DE LA POER: Does there need to be greater strength given to the safeguarding side of things, in other words that it is not viewed as an employment issue, that it is an entirely neutral act, which is a phrase that is often used, but not how it's experienced by the individual, does something like that need to be built in?
BOWERS: Yes, I mean, I think this is a real problem. I should say that I am by no means an expert on safeguarding. But I think that the -- you can see these two issues going on separate tracks and from an employment point of view, there's usually not a right to suspend. So suspension would be a potential breach of contract, could lead to a constructive dismissal. There may or may not be a right to redeploy depending on the contractual circumstances. But from an employment point of view, people will be concerned about either suspending or redeploying. So maybe it should be looked at in a more holistic way. I mean, it is often said in letters of suspension or redeployment that this is a neutral act. But of course as far as the employee is concerned, indeed as far as the people around that employee are concerned, it will not be seen as a neutral act at all. And of course some suspensions do go on for months, indeed years.
DE LA POER: But you can recognise I think that there is a potential there --
BOWERS: Yes.
DE LA POER: -- and that if you favour the rights of the employee in that situation, that that is capable at being at the cost of the safety of patients?
BOWERS: Absolutely. And I think the danger is that
you look at it in separate -- in separate spheres.
DE LA POER: Now, we will come back to the detail of some of the policies. But taking matters in the order that you have dealt with them in your first report, the next question you were asked was about the legal framework that exists. This is at page 5 of your report. Question 4, it is about the law and whether it is currently sufficient to protect whistleblowers and staff working in the NHS. In summary, what's your conclusion about the current legal position?
BOWERS: Well, I think generally, it is satisfactory, it's the way that it's operated that is problematic and the lack of knowledge of the law. I think Protect -- and I think you have just heard from a representative of Protect -- found that only four in ten of employees knew who the regulator was to whom they could complain, which is a real indictment of the situation. I think the two areas that I would comment on is the decision of the Court of Appeal in the King v Gulf case which draws the distinction between dismissal for whistleblowing and dismissal for the way in which whistleblowing is presented and I think that can be difficult because it's too easy for the employer to say it wasn't the -- what you said, it was the way that you
said it. Now, I can well understand why the Court of Appeal decided that case in the particular way but I think it does have potential dangers further down the line. I think the other thing is that it would be very useful to have a duty on the employer to consider the disclosures because at the moment, there's no obligation to do that. There's protection for the whistleblower in whistleblowing, but there's nothing of a duty on the employer to follow up on the disclosed and I think that is an important thing; that actually would give succour to or support to whistleblowers who often feel extremely beleaguered that they have gone out of their way, sometimes lost their careers, to make information available and then nothing is done with it.
DE LA POER: Dealing with the first of the two areas, the Kong case. I just wonder if you could just illustrate a little bit more detail about the distinction that was being drawn there between dismissal for whistleblowing, which is unlawful, and dismissal for the way in which the whistle is blown?
BOWERS: Well, there the concern of the whistleblower was a legitimate concern about the way in which the employer was conducting the business but the dismissal was found to be on the basis that the claimant had
questioned, and I am quoting from the judgment here: "... the managers' professional awareness and integrity, both orally and in a meeting, and in a subsequent email." So it was found that the dismissal was not an unlawful, unfair dismissal but was on the grounds of misconduct. And it's that sort of elision which I think can cause could cause problems in other cases. I think obviously if an employee seriously misconducts themselves in the way that they go about presenting the whistleblowing concern, I mean, for example there was one case where it involved hacking into an employer's computer. I mean, clearly if there's serious misconduct as well, then that should be taken into account. But the manner in which a whistleblowing concern is presented I think is -- is a difficult distinction being drawn there.
DE LA POER: Is one of the challenges facing whistleblowers in terms of how they communicate their concerns --
BOWERS: Yes.
DE LA POER: -- and in your experience the fact that they often feel very emotionally --
BOWERS: Yes.
DE LA POER: -- invested?
BOWERS: Yes.
DE LA POER: So the way in which they speak up may be in intemperate language?
BOWERS: Yes.
DE LA POER: It may be demonstrating less rationality and more passion perhaps --
BOWERS: Yes.
DE LA POER: -- than would otherwise be the case. In those circumstances, do people in such positions need to be protected from any allegation that they have gone about it in the wrong way?
BOWERS: Yes, I mean, as I say, there will be cases of serious misconduct in the manner in which a complaint is made. But I think one should be careful not to make that sort of distinction.
DE LA POER: So it is potentially a way in which the potential chilling effect of the Kong case, as you see it --
BOWERS: Yes.
DE LA POER: -- presumably addressed that there is a very clear and high threshold set --
BOWERS: Yes.
DE LA POER: -- before an individual can be penalised for the way in which they raised it?
BOWERS: Yes.
DE LA POER: Now you also comment at F under this section, which is towards the bottom of 6, about your understanding of concerns about the Speak Up Guardian system, the Freedom to Speak Up system and I just wanted to draw upon your experience, if I may, in terms of what you understand the challenges have been to the practical implementation of that.
BOWERS: I mean, this really comes from speaking to people who have -- are more familiar on a day-to-day basis with the system and also to the people in Protect and also WhistleblowersUK. I think there is a feeling that some Trusts have excellent Speak Up Guardians who are dedicated to the role and are sympathetic and have sufficient time to devote to it. But in some it's really just another role on top of busy, busy roles that they are conducting anyway and there's no, as I understand it, job description or standardisation of what they should do. So I think the answer is that in some Trusts it works well, with some dedicated people. In others, it works less well and of course there is a different model in Scotland. I think it's called the Independent National Whistleblowers Office, which has an investigatory role, although I know that there are different views about how well it's been operating. Yes
Independent National Whistleblower Officer, that is it.
DE LA POER: The next question you were invited to consider was the interplay between Freedom to Speak Up and the bullying and harassment policies. I wonder if you could just speak to what your view about that is and, in particular, whether there is any risk for confusion or inaction or some other sub optimal outcome where you have to make a choice between two policies?
BOWERS: Yes. Well, inevitably there -- there will be and one of the issues would be: could you put all bullying and harassment policies under a Freedom to Speak Up. But I don't think that would be possible because bullying and harassment policies cover things beyond whistleblowing about it. So you have just got to look at each -- each case as to which it most naturally comes under.
DE LA POER: So in a sense there is a need to recognise that there is an overlap between the two --
BOWERS: Yes.
DE LA POER: -- and it is a matter of training and ultimately judgment by the person on the ground --
BOWERS: Yes.
DE LA POER: -- who's receiving the information as to how they manage it?
BOWERS: Hopefully it's that decision can be taken by HR professionals who are experienced in dealing with both.
DE LA POER: Now, before we turn to some more specifics, I just want to ask you about something that isn't in your report but which the Inquiry has heard quite a lot about and that is the potential between the need to ensure the privacy of the individual employee on the one hand, and the other being able to have a frank and open conversation in an appropriate forum about whether a person may pose a risk and we have heard, for example, that various committees have been said by witnesses not to be the appropriate place to talk about that issue. It's just whether you have a view upon that apparent tension and how it might be resolved?
BOWERS: Yes. Obviously I don't know the underlying circumstances that you are addressing but I think we have got to be very careful not to allow the privacy of the employee to interfere with safeguarding concerns because I mean the rights, rights under Article 8 in any event are balanced rights. So if it can be defeasible, if it's a matter of public interest. But I would have thought one should be very careful not to allow -- I mean, obviously unless it's necessary, it shouldn't be, but if it's necessary in order to protect patients I would have thought that should overcome privacy concerns.
DE LA POER: So does that perhaps go back to the same topic that we touched on earlier which was about the primacy effectively of safeguarding?
BOWERS: Yes.
DE LA POER: Or the overriding objective, in your words?
BOWERS: Yes.
DE LA POER: Or patient safety, however you are characterising it, when looking at an employment problem?
BOWERS: Yes, it is very much the same thing, although of course this is influenced also by European Convention on Human Rights issues because the right of privacy derives as you know from Article 8. So that may have some different considerations. Yes, but conceptually I think it is. And, you know, I think there is a real point here that as employment lawyers we think very much about the rights of the employees and as far as the employer is concerned they are looking at the risks that there may be a constructive dismissal case, potential costing tens of thousands of pounds, ten days in an Employment Tribunal. So they are looking at those risks rather than perhaps the wider risks to patient safety. So they can
be occluded from those wider risks.
DE LA POER: Within the regulatory sphere, so within GMC or Bar Standards Board or other regulators, it is a recognised cost of being a member of that profession that if there is -- if you are alleged to have done something which poses a risk, that you may be the subject of suspension. That's priced in, in a way, to the privilege of being a member of such professions. Do you see any merit in transferring that sort of thinking to the context of the NHS? I mean, in a way it's imported for doctors and nurses by their regulator but I am talking here at an employment level?
BOWERS: But do you mean to professions other than doctors and nurses?
DE LA POER: No, but to be administered by the employer rather than at the regulatory level?
BOWERS: I mean, the employer can suspend. But there's a lot of defensiveness because that could lead to a constructive dismissal. I mean, I don't know in this case whether that was one of the considerations of the employers or not but it may well have been --
DE LA POER: But that is --
BOWERS: -- particularly with the redeployment as well.
DE LA POER: But, I mean, speaking generally, that is commonly a mindset that you have come across, is it?
BOWERS: Yes, yes.
DE LA POER: Okay. So just returning to the questions that you were asked to deal with. You were asked at question 6 to consider guidance in relation to when the police should be contacted and the Inquiry has received evidence that there was such guidance which was marked as having been developed in conjunction with ACPO, as they were. But that, it would appear, was archived shortly before the time period that we are looking at. Do you see an advantage about having a clear memorandum of understanding about how where suspicion arises, who you should contact and what the expected response will be?
BOWERS: Well, I don't know about the expected response because of course that will very much depend on the fence that's been suggested. But yes, absolutely, I think that everybody would be -- would benefit from a protocol of those things that you would look for in deciding whether to refer to the police. I mean, the only thing that I could find was in the guidelines for conduct of formal investigations, it talks about the deliberate harm test, flowcharts says in this case consider referral to police and disciplinary regulatory body. I think it -- it could be much clearer, not -- not
buried away in an Incident Decision Tree. I mean, I know that there is a great reluctance to refer to the police a) because of the reputational damage perceived to the employer; and b) because it's likely to take a very long time for the police to deal with something, which means that discipline procedures would often be put on hold while the police investigate. But yes, I do think a protocol is important. I'm not sure whether Clothier looked at this in the Clothier Report because this came up in the Beverley Allitt case as well.
DE LA POER: Certainly there was guidance post Clothier?
BOWERS: Right.
DE LA POER: It just appears that it was sent to the National Archive around 2014?
BOWERS: I see.
DE LA POER: But we understand that further guidance is under development at the moment. The phrase "Reputational harm" has been given a number of definitions in the course of this?
BOWERS: Yes.
DE LA POER: What did you mean by "reputational damage" or harm when you said your perception is that that is a concern?
BOWERS: I -- I meant really that that's how it would be viewed by the senior management, that it would become known that there were issues.
DE LA POER: Now, your second report was focused upon consideration of the grievance process and you were asked a number of questions about it, some of which you touched upon in your first report?
BOWERS: Yes.
DE LA POER: But if I could invite you to turn up that second report --
BOWERS: Sure.
DE LA POER: -- before turning to those questions, you made a number of general remarks and I just wonder if you could introduce this topic in terms of how you see grievance procedures, how you think they should be structured or run before we come to look at the particular questions?
BOWERS: Well, I think the key thing is that they should be kept as informal and non-legalistic as possible because they are intended to be dealt with relatively speedily. There's actually very little law on grievances because you can't appeal to the Employment Tribunal or court from a grievance unless it's a very special statutory form of grievance but it-- they do come up in constructive dismissal claims. I think the key points are to consider whether the
grievance is sufficiently clear enough to be dealt with, what sort of documentation should be taken into account, that people should not be criticised in a grievance without having the opportunity to put their case. That can be sometimes difficult. And that the people hearing the grievances should be as independent as possible from the people bringing the grievance or against whom the grievance is brought. Now, of course that's quite difficult in a small organisation and there is some tension between perhaps wanting people to hear the grievance who may come from a particular speciality, yet also be independent. So it is a question of balance. So I have put rather a lot of different things together but it was a very open question you asked.
DE LA POER: Deliberately so. One of the things that you mentioned there was the importance that a grievance process doesn't make a criticism of a named individual without that individual having had an opportunity to effectively have that put to them and to respond to it. So although on the one hand your view is that they should avoid being too legalistic --
BOWERS: Yes.
DE LA POER: -- on the other you nevertheless think that there is an importance of the rules of natural justice
and that people should have a fair opportunity to defend themselves if what the grievance really is an allegation that they have in some way behaved as they shouldn't have?
BOWERS: Yes, I mean, it can of course be an indirect allegation. It may come up in the course of an allegation which is against something different. But the outcome of a grievance can have consequences for people beyond the person grieving and the person grieved against.
DE LA POER: Is the requirement for an apology or a request for an apology a standard and recognised outcome of a grievance process?
BOWERS: Yes. But it's got to be, I think, very carefully thought through as to any particular circumstances. Yes, it is very commonly one of the things that's requested in a grievance.
DE LA POER: Is your experience that it is subsequently mandated, ie they must apologise, or that it's, "This would be nice"?
BOWERS: It, it very much depends on the nature of the grievance. But, yes, I have seen it often as a result of the grievance or indeed a mediation.
DE LA POER: That was going to be my next question. Is mediation a recognised outcome of grievance?
BOWERS: It -- it is and indeed it's built into the grievance policy and it's become part and parcel of grievance procedures more and more. However, there are cases in which mediation is not an ideal solution. You know, I think mediation is very useful if it is a pure breakdown of relationships and perhaps there have been misunderstandings. But when it's an allegation as serious as in this case, I would be a bit dubious as to mediation being an appropriate course.
DE LA POER: Whose responsibility is it to recognise that or make a judgment about whether the facts justify it? Does it sit with the decision maker in the grievance? Does it sit with the employer?
BOWERS: Well, it can be put forward as a way of avoiding a grievance hearing, so to come before that or it could be the outcome of the grievance itself. I think it very much depends on the particular case. But you know I think, I think we have got to be careful not to see mediation as a magic solution in all cases, particularly serious cases and particularly where effectively some form of adjudication -- and I don't mean that in the strict legal sense, but some sort of finding should be made. So I mean in serious sexual harassment cases I would think it's unlikely to be an appropriate course and if something involves allegations -- I know this wasn't directly the nature of the grievance -- but if in the background you are talking about allegations that someone may be harming babies, I would have thought that is not an area that you would want to mediate on.
DE LA POER: In terms of when mediation or an apology are thought to be appropriate, is it appropriate to go to the next step and say to the person who is being expected to engage in that behaviour, "If you do not do this it is going to be a disciplinary matter for you"?
BOWERS: Well, that's putting pressure on someone to mediate, isn't it, and it's unlikely to lead to a successful outcome and I think I am just going to say it depends on the circumstances.
DE LA POER: So if we turn now to the questions that you were asked and we start with the investigating officer who you have touched upon. Here we are conceiving of a structure where you have somebody who investigates and somebody who then makes a decision, so --
BOWERS: Yes.
DE LA POER: -- we are in that structure. I suppose the prior question is, do you always need to structure
a grievance in that way?
BOWERS: No. And as I said you have sort of very straightforward grievances and much more complex grievances. Some grievances can be dealt with just on paper, some you need a hearing for. In the health service it's very common to have an investigating officer and then a hearing, although as I understand it, as I say I am not familiar with all the facts here, the hearing officer didn't actually hear from the individual. So it was effectively a review of what the investigating officer had come up with --
DE LA POER: And --
BOWERS: Is that right?
DE LA POER: That is correct.
BOWERS: Yes.
DE LA POER: Is that how you would expect it to be organised?
BOWERS: As I say, there's a whole range and there may be cultures developed within the institutions. But normally, no, I would expect the hearing officer who is chosen to be independent here, I think from a different Trust, should hear directly from at least the important people.
DE LA POER: I just want to give you something --
BOWERS: Sorry, when I say "important people" I meant
in the sense of important to the hearing of the grievance. I didn't --
DE LA POER: To the issues?
BOWERS: Yes, to the issues, sorry.
LADY JUSTICE THIRLWALL: Understood.
MR DE LA POER: So I just want to bring you a little closer to our facts, but not I don't think in any way that is controversial. Where the investigating officer makes findings of fact about a person's credibility or comments adversely about their behaviour to the investigator, would you expect the decision maker to simply accept and adopt that or would you expect there to be an opportunity for the individuals who are the subject of that sort of criticism to present their position to the decision maker?
BOWERS: Well, it depends how important that issue of credibility is. If it is central to the determination of the grievance, yes, I -- I would expect, I would expect that.
DE LA POER: So going back to the selection of the investigating officer and here we are envisioning a situation where they aren't the ultimate decision maker. Is it normal for such a person to be selected from within the organisation that the grievance has
arisen in?
BOWERS: Yes, it would be. I mean, there are circumstances in which institutions are increasingly going out to either lawyers or non-lawyers as investigators. But, yes, normally it would be within the organisation.
DE LA POER: What degree of importance should be given when selecting that person that they are independent?
BOWERS: Well, I think it's clearly very important because particularly within institutions where people have worked together, which will often be the case in a hospital, for, for decades. Animosities or friendships can grow up and you would want to not have that influence, either adversely or favourably, when it comes to a grievance.
DE LA POER: Does that need to be spelt out in the policies?
BOWERS: Well, I would hope it was pretty obvious. But yes, I suppose it should be, yes.
DE LA POER: So far as any training that such a person may or ought to have had, would you expect them to have received training in how to conduct an investigation?
BOWERS: Yes, yes.
DE LA POER: Who would you expect to provide that training? Is that internal or is it external or might it be both?
BOWERS: It could be from HR. I mean, most HR officers would have this as part of their own training as CIPD or it could be external, yes. There's quite a lot of courses on this sort of thing.
DE LA POER: In terms of the input of HR, what is their role, would you believe, in relation to supporting, assisting, co-investigating a grievance? Where do they sit on that spectrum?
BOWERS: Well, I think it's administrative. So setting up the process, note-taking, if necessary advising on the HR aspects, advising on getting documents and witnesses; not, not beyond that though, really. Oh -- yes.
DE LA POER: In terms of who decides what questions the investigating officer asks, are they expected simply to look at the terms of the grievance and determine the scope of their own investigation, who they are going to speak to, what they are going to ask those individuals or should there be input from anywhere else?
BOWERS: Well, I think HR can advise on that and of course sometimes there might be legal issues for which you would need legal advice, I mean issues of confidentiality often come up in these matters. But yes, it would normally be HR and, you know, HR will often be experienced in dealing with these issues.
DE LA POER: One matter you comment upon in your first report is that applying your experience to no doubt many transcripts of grievance proceedings and interviews, that something struck you about the questioning by Dr Green of Dr Brearey. Now, obviously you are simply reading these as you will have read many. But, what struck you about that based upon your experience about how you would expect a grievance interview to be conducted?
BOWERS: I mean, the -- the notes are quite sterile, so you don't know the atmosphere there. But I was struck. I thought it was quite a hostile questioning of -- is it Dr Brearey?
DE LA POER: Dr Brearey. Yes.
BOWERS: Of Dr Brearey, just by the nature of the -- of the questioning as reflected in, in the notes.
DE LA POER: What sort of tone do you think a grievance interview should be conducted in?
BOWERS: Well, it should be fair and independent and not by the nature of the questioning seek to be less than partial. It should be fairly monotone. I mean obviously there are cases in which you do need to press if you think that someone is keeping things from you -- and it may be, I don't know, that that's what Dr Green thought in this case -- but it
didn't look the normal sort of independent questioning.
DE LA POER: Now, we have talked about the investigating officer. We will turn now to what I've termed "the decision maker"?
BOWERS: Yes.
DE LA POER: So in other words the person who determines the outcome of the grievance. Similar questions. How important is it that they are both independent and seen to be independent?
BOWERS: Well, in a way it's even more important that they are because they are making the ultimate decision on which, you know, people's careers can be advanced or the opposite. So, yes, it is important. But, you know, I do stress that we are talking -- we are talking in the Countess of Chester Hospital about reasonable-sized employers but grievance procedures also apply to the one-person shop, you know, very small operations as well. So you have got to be a bit careful not to sort of produce a system that just isn't capable of being implemented.
DE LA POER: Again, in terms of the input from human resourcing specialists, to what degree should they be involved with the decision-making process?
BOWERS: Well, I think at that level perhaps not so much, unless you have got someone perhaps hearing
a grievance for the first time. But, again, setting up the processes, advising on the HR policies, possibly reviewing the report to ensure that there's no obvious blatant factual errors. But, but not, I would have, thought be involved in the decision-making itself.
DE LA POER: So far as the relevance of any standard of proof is concerned, whether for the investigating officer or for the grievance, would you expect either to be -- receive training that they should apply a standard of proof or whether that is making these sort of processes too legalistic?
BOWERS: Yes, I think a general assessment of the standard of proof not being needed to be the criminal standard of proof would be part of the training. But as I said in the report, I can't think myself of a case that's turned on the standard of proof, but, you know, there may well be some. Often it is a question of judgment as opposed to setting out the facts.
DE LA POER: When it comes to how the grievance hearing should be run, if it's decided that it can't be resolved on paper and that a hearing needs to be convened, whose decision should that be? Should that rest entirely with the independent decision maker or should the investigator have a say in that? Should the hospital be determining what that structure should look like and who should come? Where should that rest?
BOWERS: I mean, I think normally it would be fairly obvious in a particular case as to whether a hearing should take place. But, yes, it would be for the chair or the hearing officer to -- to decide.
DE LA POER: So would that necessitate them getting the papers in good time before that hearing so that they can make an assessment about whether or not they want particular individuals who may have other commitments to be present to be heard from?
BOWERS: Well, in theory absolutely, yes. But of course people are doing this, particularly in a hospital, as part of very busy life and often the papers do arrive late. But obviously the hearing officer could determine to adjourn it so that they have more time to consider matters.
DE LA POER: Do you think that there are any ways in which policies could be strengthened to ensure a greater degree of fairness? I mean, we have touched on the idea that perhaps policies need to make clear that the investigator is independent, some sort of checklist for that perhaps or for the chair. Do you think -- or is that going to overburden what should be an extremely
flexible process as you have described it?
BOWERS: Yes. I think in the -- in the health service where you are generally dealing with reasonable-sized employers, then yes you could have a checklist of how the -- how independence could be derived. You could have a clearer delineation between the investigating officer and the hearing panel. I'm not sure beyond that.
DE LA POER: At page 8 of your second report you were invited to make some general observations on grievance processes. We have touched on this a little already, but let's just deal with it head on. What is your experience about the use of a grievance as a response to criticism?
BOWERS: It's happening more and more that you get a discipline and then you get a grievance and it may be a whole series of grievances about the way the discipline is happening. Here, I believe there was no discipline, but it was moving in perhaps in that direction in the sense of the redeployment. It is often used as a defensive manoeuvre and often you get a grievance against one person and then that person brings a grievance against the original griever and you have a whole series of grievances and, now, it shouldn't delay discipline procedures but it's very
tempting for an employer to say, "Well, we will hear the grievance first and then move on to the discipline." And within the health service, I don't know what it is about the health service -- well, I think it's partly because of the traditional protection for the medical profession and indeed for the nursing profession -- these procedures take a very, very long time anyway and if you have grievances in the mix and also potentially a police investigation they can take years and years and years.
DE LA POER: What is attractive to an employer about prioritising resolving the grievance ahead of a disciplinary?
BOWERS: Well, because if the grievance is upheld then perhaps you either don't go ahead with the discipline or you do it in a different way. That, that would be the potential for doing, for doing that.
DE LA POER: And is there a solution to this?
BOWERS: Well, I think it's really that one would hope that those hearing the grievances would perhaps put less weight on the validity if it is clearly a counter-manoeuvre to a disciplinary process. But, you know, it all depends on the facts really.
DE LA POER: And obviously in the midst of all this, as we have touched on already, the matter of central
importance is the patient?
BOWERS: Yes.
DE LA POER: So, again, are we circling back to the point you have already made twice now, which is that perhaps some kind of overriding --
BOWERS: Yes.
DE LA POER: -- objective needs to be imposed when such matters come up so that that is the first thought and that everything else is secondary.
BOWERS: Well, I -- I think there is a lot to be said for that. But of course it does need to then become part of the culture because, as we have said before, you can have lots of fine statements but if it doesn't get actually into the day-to-day culture it really doesn't, you know, it doesn't have great effect.
DE LA POER: The last question you were asked was -- and this is in your second report, number 17 -- whether you had experience of a doctor or a nurse being effectively threatened with referral to their professional regulator. I mean, that is to state it at its highest but, perhaps more neutrally put, that the fact that they had breached their professional code. Is that something that you see?
BOWERS: Well, I haven't myself come across this. But I mean threats of referral to professional regulators are becoming more frequent and some of them may be malicious. But I have not come across it myself in the course of a grievance process, but I mean that's not to say that it doesn't happen. I mean, just to -- if I may just go back to the point about the length of time for disciplinary processes to happen. I dealt, admittedly about 25 years ago, with a case where a doctor had been suspended within the health service for 10 years. I mean, that was a real scandal which finished up actually in the -- with a hearing before the Public Accounts Committee. But long periods for discipline to take their course; 10 years is obviously exceptional, but two or three years is not so exceptional.
DE LA POER: Now, the final matter that I wanted to ask you about, looking to recommendations, and I will give you in a moment an opportunity to add to anything you have said already about potential recommendations, but one that is floating around that I seek your comment upon is we see that in other professions that a statutory duty to report safeguarding matters is thought to be appropriate, potentially backed up by a criminal sanction if there is a failure to do so. Do you -- although that's not strictly an
employment issue plainly it has potential consequences --
BOWERS: Yes.
DE LA POER: -- in the employment context. Do you have a view about whether that's a good idea or not?
BOWERS: Yes. I can -- I think it is generally a good idea. I mean, my query would be whether criminal sanction is appropriate or a duty which could be enforced as misconduct because I think many of these criminal sanctions in the employment sphere it's very unusual that this CPS, or whoever's the decision-making body on prosecution, would actually allow a prosecution. But I think some form of duty is, is appropriate.
DE LA POER: Of course if it wasn't criminal, but it was professional regulation --
BOWERS: Yes.
DE LA POER: -- that would mean that any of the individuals upon whom such duty might be expected to fall would themselves need to be regulated?
BOWERS: Yes, yes, that's true. So you could put it in the employment contract as a duty. That would be another mechanism because, as you say, not everybody even within the health service would be under professional duties.
MR DE LA POER: Yes. Mr Bowers, those are the questions that I have for you.
BOWERS: Thank you.
MR DE LA POER: I know that there are some further questions, my Lady, and I wonder if you are content that we will continue now with those. I think that we have from one Core Participant as I understand it unless --
LADY JUSTICE THIRLWALL: Do come forward, Mr Jamieson.
MR DE LA POER: I think certainly Mr Jamieson. MR JAMIESON: What I was going to say, my Lady, is I have 10 minutes. I think if I -- well, we are approaching the lunch hour and I am sure I will be put under very quick pressure if I go any further. So if you are happy that we do that now.
LADY JUSTICE THIRLWALL: Yes. Does anyone else want to ask questions? There is no difficulty about taking the break now if anyone wants to make their mind up. No. Would you mind then if we just continued? Can I check with the shorthand writer. That's all right. Thank you.
Questions by MR JAMIESON
MR JAMIESON: Am I safe to assume that we're still in the 99% and you would prefer Mr Bowers?
BOWERS: Yes, please.
JAMIESON: Thank you.
BOWERS: Even for you.
JAMIESON: I am very grateful. Mr Bowers, what I would like to talk to you about please is candour.
BOWERS: Yes.
JAMIESON: So in the healthcare setting, it's easy to anticipate circumstances where whistleblowing and protected disclosures are going to concern issues of direct patient harm?
BOWERS: Yes.
JAMIESON: And indeed the most grave patient harm?
BOWERS: Yes.
JAMIESON: And that context, we know, engages obligations of candour to those patients and to their parents potentially and both the professional and ethical duty that clinicians have but also the legal duty in certain circumstances?
BOWERS: (Nods)
JAMIESON: And whilst that gives us an intersection between those duties, I don't understand from anything I have read that you've written that there is anything in the employment law context, duties to protect the whistleblowers, that removes or mitigates or affects those duties of candour?
BOWERS: No, no, absolutely not.
JAMIESON: These are duties that are in parallel rather than in tension?
BOWERS: Yes.
JAMIESON: Thank you. May I offer an observation for your comment?
BOWERS: (Nods)
JAMIESON: You spoke at the start of your evidence about a common NHS management response to whistleblowing concerns being raised. The adjectives that you used were "defensiveness" and "aggression". The observation is this: might it be much more difficult for those reflexes to operate in a circumstance where there has already been, at an early stage, a candid disclosure to families?
BOWERS: Yes. Yes, that's right.
JAMIESON: Because, as I understand the position, you get those reactions where the overarching intention is to keep the matter quiet --
BOWERS: Yes.
JAMIESON: -- to prevent it from emerging. And so if candour is given prominence actually that might also -- it serves the purpose of informing patients and their families, but might it also operate so as to protect whistleblowers?
BOWERS: Yes, I think that's right. I mean, the defensiveness often comes from perhaps a misguided view that our reputation will suffer if the truth comes out.
JAMIESON: Yes.
BOWERS: And that's actually not a good approach for a public body to have. But I mean I think we need to recognise that is what actually happens.
JAMIESON: Well, I wonder if -- the question is from your experience of looking at I'm sure policies on whistleblowing in all sorts of contexts, is it common for those policies in a healthcare context to include clauses that emphasise that need for candour at the beginning of a process?
BOWERS: I mean, the duty of candour is relatively recent and some of the policies have not been updated to take that into account. I think, like a lot of things, each one is sort of treated in its individual box.
JAMIESON: Quite.
BOWERS: So you have got the candour, you have got the safeguarding, you have got the bullying and you have got the whistleblowing and they are treated separately. But I think, I think the word, if I may say so, that you use correctly is intersectionality between them --
JAMIESON: Yes.
BOWERS: -- is often not recognised.
JAMIESON: Because one way of combating, I suppose, that division of the different concepts is if I think what you have told us is the way that these policies tend to proliferate is from a central position and they are then copied outwards --
BOWERS: Yes.
JAMIESON: -- by individual Trusts. If it's recognised that in a healthcare context really candour does need to be there at the start --
BOWERS: Yes.
JAMIESON: -- in a whistleblowing context, that would help to put the two concepts together?
BOWERS: Yes. I mean, I -- there is a national Speak Up Guardian, it was Henrietta Hughes. I'm not sure who fills that position now. But I would have thought that is the sort of body that could help to roll this out. I'm just not familiar with what, if any, guidance they give on that.
JAMIESON: No, and an additional benefit that might come from this is often the process: the whistleblower raises the concern, there may well then be an investigation into the circumstances whether there is an issue or not?
BOWERS: Well, I mean, that's -- that's the problem,
that often there isn't an investigation.
JAMIESON: Yes, quite.
BOWERS: And it stops at the concern being raised but yes, you are right, if there is then an investigation --
JAMIESON: Quite, so if we have that candour and if the families are informed --
BOWERS: Yes.
JAMIESON: -- they are likely to be a strong voice that is going to want that investigation?
BOWERS: You mean in this particular situation? Yes, yes.
JAMIESON: So there will be a strong voice who wants the investigation. They may also be an important source of information and evidence for that investigation itself.
BOWERS: Yes, yes, absolutely. MR JAMIESON: Mr Bowers, thank you very much. My Lady, 12.59. Thank you.
LADY JUSTICE THIRLWALL: Well done.
Questions by LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: May I just ask one brief question --
BOWERS: Certainly.
LADY JUSTICE THIRLWALL: -- in relation to mediation. So there's been a grievance and the recommendation is for mediation and one of the parties doesn't want to mediate.
BOWERS: Yes.
LADY JUSTICE THIRLWALL: Is there any obligation on someone to mediate, can they be required to mediate in that circumstance?
BOWERS: Well, I don't think contractually they can be required to mediate. But if it's a recommendation from the grievance, I suppose you feel some pressure and responsibility to do so. But, I mean, it's slightly against the whole concept of mediation to force people into it.
LADY JUSTICE THIRLWALL: Yes. Thank you. Well, thank you very much indeed, for the reports, both of them, and for coming to give evidence today and you are now free to go.
BOWERS: Thank you very much indeed, my Lady.
LADY JUSTICE THIRLWALL: So we will rise now until 10 o'clock tomorrow morning.
(1.01 pm) (The Inquiry adjourned until 10.00 am, on Friday, 6 December 2024)
Witness: Mr Nicholas Rheinberg: Former Senior Coroner for Cheshire
LADY JUSTICE THIRLWALL: Ms Langdale.
MS LANGDALE: My Lady, may I call Mr Rheinberg.
LADY JUSTICE THIRLWALL: Mr Rheinberg, do come forward.
MR NICHOLAS RHEINBERG (sworn)
LADY JUSTICE THIRLWALL: Do sit down.
RHEINBERG: Thank you.
Questions by MS LANGDALE
MS LANGDALE: Mr Rheinberg, you prepared a statement for the Inquiry dated 11 April 2024. Can you confirm that the contents are true and accurate as far as you are concerned?
RHEINBERG: Yes, I confirm that.
LANGDALE: You tell us you qualified as a solicitor in 1974 working as a partner in a local solicitors' practice. You, in February 1992, were appointed Coroner for East Somerset as a part-time post. In July 1999, appointed to the full time post of Coroner for Cheshire acquiring the title Senior Coroner when the law changed in July 2013 with the coming into force of the Coroners and Justice Act 2009. Can you tell us, Mr Rheinberg, and you expand it from paragraph 5 onwards, the Coroner's relationship
with the police?
RHEINBERG: Yes. Complicated relationships within the Coroner's office. So we are funded by the local authority and in Cheshire certainly part funded by the police in that the police in Cheshire provided me with my Coroner's officers. So my Coroner's officers had I suppose potentially a dual loyalty; they obviously were loyal to the police, who employed them, but also loyal to me as leader of the Coroners Service. The advantage in having police employees, although they were no longer serving officers, was that they had access to the police computer and so could keep abreast of information that was available to police officers and I suppose the most important part of that was what's sometimes called the STORM log where all incidents could be picked up on. So typically my officers would come into the office really quite early and have reference to the STORM log and they could pick out perhaps matters that might be coming my way, as it were, at the earliest possible opportunity.
LANGDALE: You say at paragraph 10: "My most frequent contact with senior police officers would be in relation to organ donation and
deaths where there was a suspicion of criminality in relation to the deaths." You continue further down: "... indeed, in an obviously suspicious case it would often be the police who contacted me asking me to order a forensic postmortem examination."
RHEINBERG: Yes. Coroners take a more active part than perhaps is generally known in relation to suspicious deaths. So although we see on television the police ordering a pathologist and running the show, as it were, in fact the permission has to come from the Coroner because the Coroner has custody of -- of the deceased's body and it's only by the Coroner's authority that a postmortem examination can take place. When there are suspicious circumstances, it would not be appropriate for a general pathologist to carry out a postmortem examination, instead appropriate to employ one of the fully trained forensic pathologists, I think there are about 35 currently in the country.
LANGDALE: So where there is suspicious circumstances, or you are made aware of them, where children are concerned, what's the difference between a postmortem examination where there's no suspicion and the one that you would order if there was suspicion? What do you
expect to happen where there is suspicion in a forensic postmortem situation?
RHEINBERG: Moving away from the death of a child, the normal routine in respect of an individual requiring a postmortem would be for a general pathologist to carry out that responsibility and it would be quite a swift process in -- in many cases. The pathologist would scan any medical information that was available, look at the circumstances as described to the pathologist, rely on the anatomical assistant to eviscerate and then would examine first externally and then the organs each in turn, produce a postmortem report. When it comes --
LANGDALE: Would you expect engagement between the pathologist and the clinicians who had seen the deceased around the time of death or before death in a forensic analysis?
RHEINBERG: It --
LADY JUSTICE THIRLWALL: I wonder if we just might be at cross-purposes or it may be that I've got at cross-purposes. I think the question was about forensic pathology --
RHEINBERG: Yes, I was sort of -- my Lady --
LADY JUSTICE THIRLWALL: You then answered about general pathology.
RHEINBERG: Yes.
LADY JUSTICE THIRLWALL: But I think the question then was in relation to forensic, so can we just be clear --
RHEINBERG: My Lady --
LADY JUSTICE THIRLWALL: -- about which we are talking about?
RHEINBERG: Yes.
LADY JUSTICE THIRLWALL: So you have given a general background in relation to forensic pathology but perhaps it might help if we move on to forensic.
RHEINBERG: Yes, absolutely. I was trying to sort of build the -- the picture by way of contrast. So if a forensic pathologist is employed, the scrutiny and care is very much greater. The forensic pathologist will demand a very full background briefing by the police, the police will be present during the entire process. There will be a meticulous external examination of the body looking and documenting every single injury, blemish, anything that is found, whether it is ultimately going to be relevant in relation to the cause of death. The internal examination takes place with similar
care. There will be a Scenes Of Crime Officer in attendance taking photographs of anything relevant as directed by the pathologist, who will tend to carry out a commentary as he or she is going on so that everybody understands what is happening and to be sure that the appropriate photographs for instance are taken. Everything that is going to be withheld for further examination, for instance small pieces of tissue, are given exhibit numbers and so the process continues until the examination has been completed to the pathologist's satisfaction. A process that will take a number of hours, whereas in the case of a general postmortem perhaps 30 minutes or so may be devoted to the process. With the forensic postmortem it's meticulous in every degree, carried out by a pathologist who has been trained to look for and interpret forensically all relevant details.
LANGDALE: Should it be meticulous in terms of the information the pathologist gets from the clinicians about?
RHEINBERG: Yes, it's absolutely vital that the forensic pathologist is fully briefed, both from the police who will provide as accurate information as possible with regard to the circumstances surrounding the death. If there is relevant medical information to be had, then
a very full briefing is needed in written form from the clinician or clinicians. So, for instance, you will have the case of an individual who is brought into hospital near death, who is given treatment, but sadly does not survive. There are suspicions surrounding the death so a forensic pathologist has been engaged and then the pathologist will need to be briefed on every set of circumstances relating to the hospital stay: what tests have been carried out, what results there have been -- what diagnoses have been offered by the treating doctors.
LANGDALE: You say at paragraph 24 of your statement, if you have a look in the first sentence: "Unfortunately, it is very often the case with infant pathology that a cause of death cannot be found." Are you referring there to babies who die at home usually in their sleep by SIDS? You mention SIDS, or what are you referring to?
RHEINBERG: Right. Yes, you are right, that would present the greatest difficulty but even with hospital tests the pathology may be extremely difficult to find or to interpret to the extent of offering an opinion as to the cause of death. But you are right, the problem would be very much greater in all likelihood if the death has occurred in the community.
LANGDALE: Paragraph 27, you tell us: "From my earliest years as a Coroner, I was conscious of the fact that there were many deaths that should have been the subject of an Inquest but were never reported to the Coroner." You in fact issued guidance, if we can go to INQ0017840, page 1. Putting on the screen, Mr Rheinberg, your September 2024 version of the guidance --
RHEINBERG: Yes.
LANGDALE: -- I know there was subsequent that you have alerted us to. But you set out there: "Reporting deaths to the Coroner, contact details." You say you gave a mobile number as well for those purposes. If we go to page 2. "Setting out circumstances of reporting." Page 3, we see (xxi): "Deaths involving children under the age of 18 from whatever cause must be reported." Over the page, page 4. "Common misconceptions and difficulties." And you set out four bullet points up from the bottom: "Do not guess. You have a duty to report on the cause of death to the best of your knowledge, information and belief." We see at page 5 that is signed off by you. Did you endeavour to promulgate that guidance as best you could?
RHEINBERG: Yes. I made sure that every single doctor within -- within Cheshire had a copy.
LANGDALE: How do you say you did that?
RHEINBERG: There was the -- I think if I remember correctly there were two bodies in Cheshire, Cheshire being divided in half. They -- all GPs were members, as it were, and so by informing that particular or those particular bodies, sending a copy of the direction and requiring it to be sent to every single GP and receiving confirmation that that had been done. And similarly, in, in hospitals, I made sure that every new intake of doctors as part of their induction pack was given a copy of my directions.
LANGDALE: We see -- if that can come off the screen, please, and have instead INQ0008638, page 1 -- a document emanating from the Countess of Chester's internal guidance, "Guidance on Writing Statements". I don't know if you have seen this before, Mr Rheinberg.
RHEINBERG: No, I don't remember this.
LANGDALE: It's not your document so there's no reason why you should have done?
RHEINBERG: No.
LANGDALE: Take your time to read page 1, I just want to ask your comments about hints and tips over the next page but read the whole document. (Pause).
RHEINBERG: Yes, thank you.
LANGDALE: And the next page.
RHEINBERG: Yes.
LANGDALE: Then the next page under "Hints and Tips"?
RHEINBERG: Yes.
LANGDALE: Do you see the third bullet point: "Avoid criticism of colleagues/other departments."
RHEINBERG: Yes.
LANGDALE: What do you think of that as a hint or a tip?
RHEINBERG: It not very helpful. It's -- I suppose it's in the context of Inquests are not there to apportion blame, but if there have been medical mistakes --
LANGDALE: Yes.
RHEINBERG: -- it's very, very important that these come to light. Not so as -- not as a matter of retribution or punishment but to first of all to identify what has happened, what has caused or contributed to the death
and hopefully so that lessons can be learnt and similar tragedies can be avoided for the future.
LANGDALE: Four bullet points down: "You are not being called as an expert. Don't give opinions, leave that to senior Consultants. Just stick to facts." The Inquiry has heard evidence from a junior doctor at that their understanding was they just stuck to the facts and wrote the period of time they were caring for an infant in isolation, just sticking to the facts of their involvement at any period of time in the care of a baby. Just stick to facts, what would you say about that? Does that need elaboration or not?
RHEINBERG: Right, okay, well, doctors, unless specifically called as expert witnesses, are witnesses of fact, witnesses of fact are not permitted to give opinions. However, within the Coroner's Office in Cheshire, when -- when I was there we were holding an enormous number of Inquests and it wasn't appropriate to instruct an expert in every case. We would never have got through a huge list of cases if that was -- if that was done and also the cost would have been very great. In those circumstances, where someone perhaps of
Consultant grade was giving evidence, it was my practice to accept expert evidence in -- from them if appropriate.
LANGDALE: To be fair to the Countess of Chester document, if you go over to the next page, finally, it states: "Do not repeat what is already in the notes. Expand and clarify if appropriate and do not leave out significant information"?
RHEINBERG: Sorry, I am not hearing you.
LANGDALE: The top two bullet points?
LADY JUSTICE THIRLWALL: She is just reading the top line.
MS LANGDALE: Just read it, thank you.
RHEINBERG: Okay, got it, yes.
LANGDALE: That can come down and now can we have on the screen INQ0008941, page 24, please. This, Mr Rheinberg, is a guidance document, I think, prepared by you and records show it was sent to Mrs Sarah Harper-Lea on 1 July 2016 attached to request for statement. So this is guidance I think that you have drafted. Do you recognise that as your guidance or guidance from the Coroner's Office, perhaps it's not yours.
LADY JUSTICE THIRLWALL: I think your name is at the bottom.
RHEINBERG: Yes, yes. Thank you. Yes, I don't remember issuing this but clearly it is advice that I have given.
LANGDALE: You set out at 5 and 6 more broadly, don't you: "From details extracted from the notes, set out relevant medical information relating to the cause or circumstances of the death following the chronology order." At 6 you say: "Hearsay evidence is acceptable provided you are confident of the accuracy of the information you are giving." Can you just expand on what you meant by that, "hearsay evidence is acceptable", which is perhaps different from sticking to the facts of your own knowledge in a moment in time, isn't it?
RHEINBERG: Yes. The rules of evidence in the Coroners Court are not the same as in the civil and criminal courts and we are permitted to accept hearsay evidence. The good practice would demand that as much as possible one would rely on hard evidence, adhering to the usual rules of evidence, but we could spread our net wider and still -- and not be in contravention of any of
the rules.
LANGDALE: Thank you, that can go down. I am going to move now, Mr Rheinberg, to Baby A [Child A] and the death of [Child A]. I make it clear at the outset I am not asking you any questions about your decision-making and the Inquest itself. We are interested in exploring the information provided to you?
RHEINBERG: Okay.
LANGDALE: And the adequacy of that, so I am going take you to various documents on the screen and where it's helpful for you, refer you to a paragraph in your statement where you have set out postmortem results that might make it easier for you to set those out for us?
RHEINBERG: Okay.
LANGDALE: So [Child A], we know [Child A]'s death was reported to the Coroner on 8 June 2015 and in an investigation opened, a postmortem gave cause of death unascertained and there was an Inquest held on 10 October and a narrative verdict given. If we can start, please, with INQ0002042, page 174, so we know the death has been reported to you in June 2015 and you have here when it comes on the screen --
RHEINBERG: Right.
LANGDALE: -- we see at the bottom 2016, the parents'
solicitor writing: "Frustrated over the duration of the investigations as the death happened a year ago." If we go, take your time to read that and we will put another document up then. If we can have INQ0002042, page 173. What do you say in response?
RHEINBERG: What do I say, sorry?
LANGDALE: Yes, what do you say in response, if you don't mind reading out your email so we have it on the record?
RHEINBERG: Right. I was expecting a full report from the hospital. Bearing in mind the circumstances surrounding the death of Baby A [Child A], there had been medical errors that could potentially have been implicated in the death. I think I remember correctly it was in relation to the insertion of lines.
LANGDALE: A long line, yes.
RHEINBERG: And of potential relevance the fact that the misplacement of one of the lines coincided with an arrest quite shortly afterwards. So my anticipation was that there would be -- would have been a very full investigation, either internally or through an independent person called in by the Trust and clearly that report would be very important in relation to the Inquest.
LANGDALE: So you respond and then suggest dates to avoid from their perspective --
RHEINBERG: Yes.
LANGDALE: -- moving it forward. Thank you. If we can then have INQ0002042, page 186. This email is an email from Mr Cross to you?
RHEINBERG: Oh right, yes.
LANGDALE: Suggesting an obstetric secondary review will be sent to you?
RHEINBERG: Yes.
LANGDALE: You then, if we go to page 169 -- it's the same INQ number, Mrs Killingback, it's just a different page, 169 -- what do you say there to the mother's solicitor or parents' solicitor?
RHEINBERG: Sorry, what?
LANGDALE: What do you say there in this email?
RHEINBERG: It was a letter.
LANGDALE: Yes, a letter. What are you setting out?
RHEINBERG: It -- it's my preliminary decision as to the relevant witnesses to the Inquest, bearing in mind the fact that Baby A [Child A]'s Family were legally represented, I wanted to run this past the solicitors in case they had any suggestions about further witnesses that they might regard as relevant, so that I could consider any representations in that regard.
LANGDALE: You say subject to anything unexpected within the SUI. So again explain what you are expecting from an SUI?
RHEINBERG: A detailed review of -- of what had happened. Typically, these reports would come through with all participants anonymised through a series of letters and so if unasked the Trust sent me through a list of the witnesses to match up to the letters, I would always demand the -- a means of identifying which witnesses are being referred to and so after a detailed report I could check that I hadn't missed out any witnesses from my preliminary list.
LANGDALE: Can we next have, please, INQ0050707, page 1. It's not an email that you saw?
RHEINBERG: No.
LANGDALE: But it's been sent to your office from Joshua Swash --
RHEINBERG: Right.
LANGDALE: -- A paralegal at the Countess of Chester and it says: "Please could you bring this to the attention of Mr Rheinberg. "As stated in Stephen Cross's email of Friday, 12 August please find attached the OSR report for this case and action plan documents. Please note the NNU
Mortality Thematic Review has been redacted due to the other patients' confidentiality." If we can see what that looks like, please, it's INQ0008841 page 1. So this appears, Mr Rheinberg, to have been sent on 19 August --
RHEINBERG: Right.
LANGDALE: -- 2016. The Inquiry has seen different versions of this but this copy for you is -- appears as follows for the Coroner's Office, see page 1 there. If we can go over the page to page 2, page 3, page 4, 5, 6 and then the last page, page?
RHEINBERG: Yes.
LANGDALE: Page 7 and page 8, please. So this appears to only have [Child A] but as the document refers to, there are other babies in a version of that, but you have been sent the one related or the office has been sent the one in relation to Baby A [Child A] ^. You also tell us at paragraph 43 of your statement, if we can have on the screen INQ0002042, page 777, you are sent that.
RHEINBERG: Yes.
LANGDALE: We see: "Learning from these cases notable excellence in
practice and record-keeping ..." Et cetera and it relates to [Child A] only?
RHEINBERG: Yes.
LANGDALE: So you are sent that. We then see in September, if we can have INQ0002042, page 155, a letter from the solicitors for the parents --
RHEINBERG: Yes.
LANGDALE: -- of Baby A [Child A]. Take your time to read that.
RHEINBERG: Yes. (Pause) Thank you, yes, I am familiar with that letter.
LANGDALE: Yes. They say: "We were of the understanding that a full investigation was taking place." They are unhappy, aren't they --
RHEINBERG: Yes.
LANGDALE: -- with what they have received. A short document that bears the date 1 July 2015. Do you think that was the page that Dr Brearey -- the one before --
RHEINBERG: Yes.
LANGDALE: -- that they were sent? It doesn't look from that letter as though they were sent the Thematic Review document but they were sent Dr Brearey's letter; do you think that's right?
RHEINBERG: Yes.
LANGDALE: If we go to INQ0002042, page 154, your letter to them?
RHEINBERG: Yes.
LANGDALE: "... [you] too was disappointed with the brevity of the report which I received. However, I have no power to order a hospital to conduct an investigation, still less give directions as to the nature and extent of any investigation that's undertaken." And that you won't be adjourning the Inquest next week. "It would be inappropriate to do so." If we go next to 0167, so the same INQ number ending 2042 and then 0167, your office, when it comes up, chasing statements.
If we go to page, the next page of that, 168 first [not found], we know Dr Saladi's statement is in fact dated 16 August 2015, Theresa McCormack's April 2016, Ravi Jayaram's July 2015 and February 2016 and I think the ones on the first page too between February, April 2016 I think only Dr Harkness' was later in September. In terms of that time lapse in receiving statements, was that not unusual or was that ...
RHEINBERG: No, it -- it -- it wasn't unusual to have to chase for statements. I had developed a protocol with all the hospitals giving deadlines with regard to production of statements, et cetera. On occasions, those deadlines were breached, they were -- they were followed up and the usual result would be an apology and the statement to hand. This was unusual. It -- there were to me at any rate unacceptable delays.
LANGDALE: We know you are moving forwards to the Inquest on 10 October. On 6 October you get this email, INQ0053069, page 1. We see from the bottom from Mr Cross: "Dear Mr Rheinberg, you will recall that in your absence I advised your deputy that the Countess was undertaking a review of neonatal deaths by the Royal College of Paediatrics and Child Health which was undertaken at the beginning of September and the Trust is awaiting their report. The Review Team have indicated that they were entirely satisfied with the care within the neonatal unit and raised no concerns. However, they recommended that a detailed forensic Casenote Review of each of the deaths from July 2015 should be undertaken, so consequently this is still work in progress."
Over the page, if we can: "I have instructed Louis Browne of counsel in this matter and he is fully aware of the review and Dr Jayaram as the lead Consultant is also fully aware of this matter. He is called to give evidence at this Inquest and will be able to answer any questions regarding the review." For completeness, if we go back to the previous page and look at the email at the top. Thank you, that's been enlarged, we see for our purposes that Mr Cross makes it clear that he hasn't sent a copy to the Coroner?
RHEINBERG: Yes.
LANGDALE: But explained it in the email below. In terms of the email below, it's clear you weren't sent a copy at that stage. Were you aware that Mr Moore had had a conversation with Mr Cross previously about the fact that a review was being undertaken?
RHEINBERG: No. I think if I remember correctly from the documents provided to me that it was alleged or stated that a telephone conversation had taken place between Mr Cross and Mr Moore, was it 13 July?
LANGDALE: It was in July.
RHEINBERG: Yes. And that this conversation imparted information to Mr Moore which was to be passed on to me
as I was not in -- available to take the call. That, that -- I picked that up from the documents sent to me.
LANGDALE: Indeed, Mr Moore said yesterday so you are aware that he was -- he did take a call --
RHEINBERG: Yes.
LANGDALE: -- that was meant for you where he was told about the RCPCH review and that a review was being undertaken?
RHEINBERG: Yes.
LANGDALE: And that he told you about the call and said that there was a review being undertaken?
RHEINBERG: Yes. I am absolutely positive he -- he will have done so. He was meticulous in that regard. It's my failing memory, I'm afraid, I -- I can't remember. But I did know that there was -- was to be a review. It may have been that conversation that had been passed on by Mr Moore, but I -- I can't now remember.
LANGDALE: To be clear, Mr Moore's evidence was that when he said that to you, you were aware of a review into neonatal deaths but his evidence is he wasn't aware that there was a suspicion about a nurse or a member of staff --
RHEINBERG: No.
LANGDALE: -- being involved in deaths but you were -- he was aware of neonatal deaths and a review?
RHEINBERG: Oh absolutely. I mean, it was a concern that there had been a number of deaths at the Countess of Chester and good to know that the matter was being looked into independently. But certainly so far as I was concerned there was not a whisper of any suspicion.
LANGDALE: And indeed when you hear the Inquest for 10 October 2016, as we know when we go through the sequence, by then you have had the deaths of A,C,D,E,I, O and P --
RHEINBERG: Yes.
LANGDALE: -- notified to you. So you were aware of a series of neonatal deaths?
RHEINBERG: Yes.
LANGDALE: We have got a note of the Inquest hearing, we have got a number of notes and there seems to be a particularly full one from the Family's solicitors. If we can look, please, at INQ0107909, page 8. If we can just have the last paragraph on the screen. Perhaps enlarge that. Dr Jayaram's evidence. Mr Rheinberg, we see you asked Dr Jayaram whether or not he has seen anything similar. Can you read that again now --
RHEINBERG: Yes, I will, yes.
LANGDALE: -- and tell us what you understood from that evidence?
RHEINBERG: Okay. (Pause) So I don't remember this. So my understanding will be relating to the reading of this now.
LANGDALE: Yes, understood. (Pause)
RHEINBERG: Yes, I have read that.
LANGDALE: What did you make of that at the time? What did you understand from that?
RHEINBERG: Well, he was giving details or referring to previous cases and where the cause could not be found and that whilst there was nothing specific in relation to the department, it was being downgraded as a general safeguard presumably pending a -- the result of a review just in case there was something amiss within the department from a clinical excellence point of view.
LANGDALE: Thank you. That can go down. If we go to your statement, please, at paragraph 45, you set out there your conclusions and you say at the end of paragraph 45 you had stated: "'It cannot be determined what caused [Child A]'s collapse and subsequent death and further it cannot be determined whether this was due to a natural or unnatural event'."
Can you just clarify for us, which you do later in your statement, what you were referring to there when you said "or a natural event"?
RHEINBERG: Okay, there were two possible factors that could have been relevant to the cause of death. The one iatrogenic, the other natural. So I have already mentioned the misplaced line, misplaced on two occasions and I think it was after the second line insertion, misinsertion, very shortly afterwards that there was a collapse. The other pathological finding was a crossing over of the pulmonary artery and that was described by the pathologist as "extraordinarily rare", I think it was something like 27 cases only known, but unlikely to explain the death, although the pathologist set out a theoretical basis upon which death could have ensued, but then rather dismissed it. I was struck by the coincidence of the error and the death, although I had to take on board the pathologist's opinion that this probably was not relevant so far as the cause of death was concerned. So this was one of those very unfortunate cases where despite all the investigations that had been undertaken, and in particular despite a paediatric postmortem, the -- the cause of death was not apparent
so I could theoretically have just put "open verdict" --
LANGDALE: Don't worry, we are not worried about your decision -- not worried about that?
RHEINBERG: It didn't strike me that that was appropriate.
LANGDALE: [Child C], moving to [Child C]. We know [Child C]'s death was reported to the Coroner on 15 June 2015 and an investigation was opened. If you go to paragraph 53 of your statement, we see you ordered a postmortem examination to be performed. Can you tell us what the conclusion of that was and therefore how the investigation discontinued?
RHEINBERG: Right. I can't remember offhand the specifics of the report, I think it was Dr Kokai.
LANGDALE: Don't worry, you summarise it at paragraph 53 of your statement?
RHEINBERG: Sorry, I will look it up.
LANGDALE: It may be easier -- I would look it up rather than ...
RHEINBERG: Which paragraph?
LANGDALE: 53. You say: "At an early stage the pathologist indicated his opinion that [Child C] had died from natural causes but was unable to provide a cause of death without carrying out further tests."
RHEINBERG: Yes.
LANGDALE: "[You] opened an investigation. Dr Kokai had already expressed an opinion that the cause of death was natural. Nevertheless ..."
RHEINBERG: Yes.
LANGDALE: "... at that stage the cause of death was unknown."
RHEINBERG: Yes.
LANGDALE: "After an investigation had been formally opened Dr Kokai gave his opinion as to the cause of death. The cause given was naturally occurring." Therefore you discontinued the investigation?
RHEINBERG: Yes, and this would follow a very usual line with a paediatric postmortem. There would be an immediate response from the -- or a speedy response from the pathologist, to give a steer as to where things might be going. But the opinion as to the cause of death being withheld until all investigations, both microscopic and biological, had been undertaken.
LANGDALE: [Child D]'s death was reported on 22 June 2015. If we go to INQ0002045, page 8, we see Dr Newby reporting that death, referred to it being the third death in 12 days for neonatal?
RHEINBERG: Yes.
LANGDALE: Also a further episode of apnoeic event and CPR for previous twin death. Surviving Twin had successful ... ^ Postmortem was conducted and we know that the conclusion of that was pneumonia with acute lung injury and you had provisionally decided to discontinue the investigation but received a letter, didn't you, from the parents requesting further investigation?
RHEINBERG: Yes.
LANGDALE: So your letter in response, INQ0002045, page 962.
RHEINBERG: Yes.
LANGDALE: Tell us what you are saying there or stating there.
RHEINBERG: Messrs Gamlins had been appointed to act for the Family. I think I had received a letter from Baby D [Child D]'s parents direct, giving a number of details relating to what they saw as mismanagement in relation to the death and I decided that this did need further investigation, and although a natural cause of death had been given, and so in normal circumstances a discontinuance would be the only course of action appropriate, in these particular circumstances I decided to accede to the request made by Messrs Gamlins.
LANGDALE: If we can have the next page up, the same INQ number page 974. While it comes up, Mr Rheinberg --
RHEINBERG: Yes.
LANGDALE: -- you retired in March, didn't you?
RHEINBERG: Yes.
LANGDALE: March 2017?
RHEINBERG: Yes.
LANGDALE: We see a letter that your successor Mr Moore sends on 3 May 2017: "Dear Mr Cross, "I write further to Mr Rheinberg's letter to you dated 13 February in which he indicated he was looking forward to receiving from you copies of the in-depth reviews carried out in respect of Twins and [Child D] and [Child A]."
RHEINBERG: Yes.
LANGDALE: That is sent 3 May. And I think that's the day after the Countess of Chester have written to the police. But at this point, Mr Moore is asking for those reviews?
RHEINBERG: Yes, yes.
LANGDALE: That can come down. [Child E]. If you can go to paragraph 65 of your statement, please?
RHEINBERG: Right, thank you.
LANGDALE: [Child E]'s death was reported on 4 August 2015. There was no postmortem and no Inquest opened?
RHEINBERG: No.
LANGDALE: And you set out at paragraph 66: "It appears from the paperwork that she [that is the doctor] was satisfied that the reporting doctor had correctly identified the cause of death which could be registered without a postmortem examination or further investigation by the Coroner's Office." Sorry, I should make clear it was somebody at the Coroner's Office working as a senior partner in a GP practice, forensically trained, et cetera, she was satisfied that the reporting doctor had correctly identified the cause of death and so it was there was no postmortem and no Inquest; is that right?
RHEINBERG: Yes. Correct.
LANGDALE: So where there was no request for an Inquest the Coroner's Office also had to ratify or see that and --
RHEINBERG: Sorry?
LANGDALE: The Coroner's Office needed to look at that for themselves and ratify what the doctor had said?
RHEINBERG: Absolutely, yes. From a legal point of view, the death, strictly speaking, didn't have to be reported because the cause of death was known or purportedly known and purportedly the cause of death was -- was natural. But this was in adherence to my Practice Direction
that all deaths of children under the age of 18 should be reported. So quite proper that the death was reported.
LANGDALE: [Child I]'s death was reported on 23 October 2015. You tell us at paragraph 67 of your statement that the investigation was discontinued following receipt of a postmortem on 6 February 2016.
RHEINBERG: Yes.
LANGDALE: You set out at paragraph 69 that: "Dr Kokai produced a full postmortem report dated 10 February [and] gave his opinion as to the cause of death as hypoxic ischaemic damage of brain and chronic lung disease of prematurity due to extreme prematurity." The concluding remarks, he wrote: "'I find it justifiable to conclude that [Child I]'s death was a result of natural causes and a result of a combination of several underlying pathological processes as a consequence of prematurity ...'" And so it was that investigation was discontinued.
RHEINBERG: Correct. Yes.
LANGDALE: We then come to two babies from three Triplets and deaths are notified to you as well and if we go to INQ0002046 0083, we see this is an email, isn't it, to you from your office, Christine Hurst?
LADY JUSTICE THIRLWALL: It's just coming up now.
MS LANGDALE: It's actually page 83, please. 2046, page 83, not that page.
LADY JUSTICE THIRLWALL: Can we take that off, please?
MS LANGDALE: Yes. 0083.
RHEINBERG: Right.
LANGDALE: We see there attached postmortem reports for Babies O and P.
RHEINBERG: Yes.
LANGDALE: You tell us as indeed Christine Hurst mentioned in her statement to the Inquiry that soon after the deaths had been reported, you had a conversation and she came over to your office to discuss the deaths. By all means refresh your memory from paragraph 74 of your statement, if you would like to do so.
RHEINBERG: Yes.
LANGDALE: So what do you remember now about any conversation between you both?
RHEINBERG: Christine and I had frequent conversations on all manner of things relating to the jurisdiction. But I do remember her coming over and us having a discussion about our concerns about the -- this being yet another unexpected death of an infant or infants at the Countess of Chester Hospital.
LANGDALE: If we can go to page 82, the page before. Your response at the top, 17 October: "The postmortem reports" --
RHEINBERG: Yes.
LANGDALE: "... disclose a naturally occurring death and I am discontinuing the investigations. There is nothing in the reports to indicate any clinical mismanagement in relation to these deaths which were both sudden and unexpected. It can be seen Dr Kokai ascribes the death to prematurity, albeit the processes which occurred in each case were different. "I am aware of the investigation that you refer to. The hospital itself called for an investigation by dint of the fact that they had experienced a number of perinatal deaths in excess of what they might have statistically expected. The investigation was not instituted because of specific concerns about the deaths in this instance and as noted above, I know of no clinical mismanagement." So you were aware of the review at that time?
RHEINBERG: Yes.
LANGDALE: The RCPCH review?
RHEINBERG: Yes.
LANGDALE: In terms of referring to what it was looking into, a number of perinatal deaths in excess of what
they might have statistically expected, what information were you relying on for that? Can you remember now or would you rather we went through --
RHEINBERG: Well, I know generally it was an investigation into the operation of the unit to identify any shortcomings or any issues that could explain some or all of the deaths or might have been a factor rather than explaining the causes of death.
LANGDALE: If we can go to INQ0058202, page 3, these are follow-up emails on reports for Babies O and P but also refer to the review, so let's look at these emails in sequence. So you see at the bottom from Claire Raggett at the hospital to Christine Hurst, your office, 31 October?
RHEINBERG: Yes.
LANGDALE: "Good afternoon Christine, "I write further to our telephone conversation and I have just spoken to Stephen who has asked Josh to send the two reports over to you this afternoon. The Reports are unsigned as [Dr V] is on leave until Friday when she will be in a position to sign them." So these are reports relating to O and P: "But to avoid any delay for the Coroner to have sight of the report Stephen asked for the unsigned reports to be sent over to you. In respect of the
review, the Trust has now received a draft report which it is considering factual accuracy and this will be done by the end of this week. "It is anticipated that the final report will be received within 14 days from the review as receipt of the Trust comments which will then be in a position to share with the Coroner. "I have also raised your earlier email with Stephen which, as you suggested, raises a number of issues particularly around the strict legal position regarding the time of death and we will be interested to hear your view in due course." Then we see above that, so that is the email that is come to your office 31 October, 7 December: "Hi Claire, any news on the review done by the College yet?"
RHEINBERG: Yes, yes.
LANGDALE: So -- and if we go, please, to page 87, it's a different INQ number actually, INQ0002046: page 86 actually is the first page of it. Can we have page 88, please and the email at the bottom of page 88.
RHEINBERG: Right.
LANGDALE: "Good morning Christine." From Claire Raggett: "I write further to my email yesterday [this is 9 December]. Stephen has met with Ian Harvey earlier this morning and as mentioned, the neonatal service review has been received in the Trust. The review does advise that the Countess undertake some internal review which will involve a secondary review of some of the cases. "The Trust would like permission from the Coroner to approach the appropriate pathologist where they have been involved with a particular death. This will enable us to be in a position to present a comprehensive review to the Coroner which we would anticipate to be completed earlier in the New Year. "It would be helpful for Ian and Stephen to meet with the Coroner to discuss the findings of the reviews. Perhaps you could suggest some dates for the Coroner for a meeting, say third week of January 2017." Then above, from Christine Hurst to you.
RHEINBERG: Yes.
LANGDALE: "Please see regarding the Royal College Review at the Countess of Chester, the Children O and P cases were, as I was told, part of the review." If we go back to page 86, your response to Christine: "This does seem to be going over backwards. However, I have no objection to the Trust consulting pathologist. At this stage I would like a copy of the document which has been produced. I also need to know which cases the Trust decide to review. Finally, I would like a date for the final comprehensive review. Early in the New Year is too vague and in any event I would want to have an opportunity to see the review and consider its implications prior to my retirement."
LADY JUSTICE THIRLWALL: Were you able to see that, we had a bit of movement of the document?
RHEINBERG: Sorry?
LADY JUSTICE THIRLWALL: Are we all content we have now had a chance to look at it?
MS LANGDALE: Can you see it?
RHEINBERG: I can, yes.
LANGDALE: And you can confirm that is what you sent between yourselves at that time?
RHEINBERG: Absolutely, yes.
LANGDALE: If we go now to page 91, same INQ number, 91. At the bottom of the page: "Hi Claire, [17 January] Mr Rheinberg has asked that he is sent without further delay a copy of the neonatal service review." 20 January: "Good morning Chris
"I write further to your email below. Stephen has asked that I forward a copy of the review for the attention of the Coroner. Please note this is still confidential to the Trust board and will be shared with our relevant clinicians at a meeting to be held on Thursday, 26 January. "Stephen has therefore asked you to advise the Coroner accordingly and once it has been shared with our clinicians the Trust has a communication plan for a wider dissemination of the report." Do you see that?
RHEINBERG: Yes, I do, yes.
LANGDALE: So we know a report is sent to you. We need to go to a document from within the Countess of Chester to see what was sent to you, specifically and if we can have please on the screen, INQ0058202, page 1. This is early stages for the Trust with this report. So they say we see from the email from Mr Cross: "Please see email below which confirms I have sent the redacted version of the review to the Coroner as agreed." So with his colleagues stating he sends the redacted version?
RHEINBERG: Yes.
LANGDALE: I am going to put on the screen the bits that
were therefore redacted, Mr Rheinberg --
RHEINBERG: Okay.
LANGDALE: -- at that time. INQ0009618, page 8, paragraph 3.12. If we can just highlight that. That paragraph.
RHEINBERG: Right. Oh, thank you.
LANGDALE: So mention a nurse had been rostered on shift for all the deaths although the nurse had not always been assigned to care for that specific infant?
RHEINBERG: Yes.
LANGDALE: Sorry. Can we go back to it. 3.12: "Subsequently paediatric lead and all the Consultant paediatricians had become convinced by the link although this was a subjective view with no other evidence or reports of clinical concerns about the nurse beyond this simple correlation an allegation made to the Medical Director and Director of Nursing." Then if we go to page 9 of the same INQ number and those three paragraphs as well, if you can read those. (Pause)
RHEINBERG: Thank you.
LANGDALE: Then the next page, where the blue starts "recommendations", you see that? That's on the redacted version but the top two paragraphs.
RHEINBERG: Okay. (Pause) Thank you.
LANGDALE: Can we then have an email, please, that can come down, INQ0002046, page 95. This is an email from you to Christine Hurst and cc'ing Mr Moore. You say here: "Having reviewed the files again in relation to the tragic deaths of the two Twins there is nothing to indicate that the deaths were anything other than due to natural causes. I was going to discontinue the investigations but the parents asked me to wait until the result of the Royal College's investigations into neonates at Countess of Chester had been concluded. "This report has now been received and its findings do not add any information pertinent to the deaths in question. The Countess of Chester called the Royal College in because statistically there had been a rise in infant mortality which could not easily be explained. The report reveals a level of understaffing for a unit of its size, possible delays in referrals to tertiary care and other matters which no doubt will be addressed. However, nothing in the report throws any light on the deaths in question and these being natural deaths with nothing to indicate gross human failure, I have no jurisdiction to hold Inquests.
"Let the parents absorb the report and please communicate my thoughts to them." You hadn't seen the full report at that time. Do you think you would have liked to have done or would it have made no difference to see --
RHEINBERG: Well, clearly I had not received the full report. My attitude would be somewhat different or would have been somewhat different if I had seen those passages which appear to have been redacted.
LANGDALE: Why would it have been any different?
RHEINBERG: Well -- it, it opened up a whole new line of enquiry. We, we have a mystery: why are there more deaths than would be expected? A review which apparently or appears to throw no light on the matter, but in particular doesn't show any systemic failure which could explain the deaths other than staffing level issues. The paragraphs that were redacted clearly raise a matter that needs investigation, and the response to that would be reporting the matter to the police, whether or not I would have out of courtesy told the Countess of Chester my intention to give them an opportunity to make representations, I don't know. But clearly this was a matter that needed further independent investigation.
LANGDALE: If we can go, please, to INQ0002046, page 77, internal emails between yourself and your office, Christine Hurst on 1 February. Ms Hurst tells you: "In the email I forwarded to you from Claire Raggett from the Countess of Chester she confirmed that an independent review is to be done of each unexpected death and that a full independent review of Children O and P and [Child A] cases currently been undertaken. "In light of this do you wish to discontinue the investigation or wait until these reviews are complete?" And you say: "We will await the outcome of the review."
RHEINBERG: Yes.
LANGDALE: On 8 February --
RHEINBERG: Sorry to interrupt. Is this in relation to -- yes, it is. If I remember correctly the parents had, of the two babies had made a request that the Inquests or the investigations shouldn't be discontinued despite the fact that Dr Kokai had found the deaths due to natural causes and it seemed a perfectly reasonable request in view of the fact that there were further investigations to be undertaken. So I countermanded my original instruction that the
investigation should be discontinued.
LANGDALE: It's apparent from your communications that you do communicate with parents when you are minded to discontinue in case they have anything to add or say. We see that in the case of Baby D [Child D] --
RHEINBERG: Yes.
LANGDALE: -- and here. So --
RHEINBERG: It would most normally be not me direct but my officers on my behalf. When solicitors were involved, then normally I would engage in correspondence direct.
LANGDALE: If we can go please to INQ0005815, page 1. That's a letter to Mr Cross from Christine Hurst.
RHEINBERG: Yes.
LANGDALE: She says: "I was assured last week by your department that all Family members would be contacted and informed about the Royal College of Paediatrics report prior to it being made public. In light of this assurance I therefore did not get in touch with Father O,P&R to inform him that this document was now complete and that it would be going public this week. I have just received a telephone call from Father O,P&R who was extremely distraught and very angry he has not been made aware of the publication and he and his Family have only now found out about this via the babies' grandparents who saw it on the news. "It was a very difficult and distressing phone call"?
RHEINBERG: Yes.
LANGDALE: What was your understanding if you had a report like that, would you think that that should be shared with the Families or express a view about that?
RHEINBERG: Absolutely. Absolutely.
LANGDALE: If we can go to paragraph 95 of your statement. You tell us that you are satisfied you did have a meeting at the hospital with Mr Cross and Mr Harvey because in subsequent correspondence they refer to a meeting at the Countess on 8 February. So you don't recollect a meeting now but you think that's probably right, you did have one with them at the hospital?
RHEINBERG: Yes, I am sure the meeting took place. I -- I just have no recollection. Having been taken through all the documents just now, I imagine that the meeting was to discuss the report but --
LANGDALE: The RCPCH report?
RHEINBERG: Yes.
LANGDALE: If we go to INQ0106817, page 34, this is Mr Cross's note of a meeting. We can enlarge it and see if it helps you or not?
RHEINBERG: Right. Oh, gosh.
LANGDALE: It is not easy, is it?
RHEINBERG: Can you translate?
LANGDALE: Yes. Top 8 February. It is that top right-hand box?
RHEINBERG: Yes.
LANGDALE: You can enlarge it, I think. It's better in hard copy.
RHEINBERG: Right.
LANGDALE: Mr Harvey outlining ... Would you rather see a hard copy? This is a good time for a break anyway.
LADY JUSTICE THIRLWALL: We could take the break and get you a hard copy, is that convenient?
MS LANGDALE: Yes.
LADY JUSTICE THIRLWALL: So we will take a break now. We will come back at 20 to 12.
RHEINBERG: Thank you.
(11.20 am)
(A short break)
(11.40 am)
MS LANGDALE: Mr Rheinberg, you and I both have a hard copy.
RHEINBERG: Yes, that is helpful, thank you.
LANGDALE: We see that Mr Harvey outlines the meeting.
"NR: [presumably you] anything come out of in-depth investigations? "IH: no theme has emerged." And then you appear to say, if this is right: "Wouldn't want to get in the way of talking to the Families." Would that be the sort of thing you talked about?
RHEINBERG: Right. Yes, I am prepared to accept that, as I say I have no recollection.
LANGDALE: "Needs in-depth investigation. Coroner should share any further info with Families." Then it looks like it says: "Trust done right thing." We don't have Mr Cross to tell us what that represents or whether there's -- what's alongside that?
RHEINBERG: I can't, I'm afraid --
LANGDALE: Can you remember any discussion about right thing, or doing the right thing or wrong thing, anything like that?
RHEINBERG: As I say, I really can't remember anything about this meeting, so I'm at the mercy of the note, as it were.
LANGDALE: Fair enough. It then says:
"Coroner will advise his staff no comment. Never associated paediatric deaths with the Countess." But you have got no recollection of what that's about?
RHEINBERG: Yes.
LANGDALE: If we can have instead on the screen, please, INQ0002048, page 33,. A letter from you to Mr Cross, further to the meeting of 8 February.
RHEINBERG: Right.
LANGDALE: It will come on screen in a moment.
RHEINBERG: Right.
LANGDALE: "I look forward to receiving copies of the in-depth reviews carried out in respect of the children. So far I have received no press enquiries following publication of the report." We then know you have a meeting on 15 February?
RHEINBERG: Yes.
LANGDALE: If we can look, please, at INQ0002048, page 34. We know you say and also Mr Harvey says that a bundle of documents were given to you at this meeting. Can we just look at what those documents were, please.
RHEINBERG: Okay.
LANGDALE: In-depth review into baby deaths. Advisory medical report from Dr Hawdon dated October 2016. I won't put the whole report on the screen, Mr Rheinberg, but if I can ask, please, for INQ0002048, page 89 and page 90. We see recommendations at page 90, if we go back to page 89 we see a list: "[Child D] change following PM review." So moving it in the document making it clear that is a change following a PM review?
RHEINBERG: Right.
LANGDALE: We see a list of other infants there. So the Dr Hawdon report is in this bundle. Then if we go, please, to INQ0002048, page 91. We see a letter from the paediatricians to Mr Chambers and we see at paragraph 2 respectfully requesting you to urgently ask the Coroner to undertake a full investigation of all the deaths and unexpected collapses. It sets out the Royal College Review. It sets out comments on Dr Hawdon's Casenote Reviews. And we see at paragraph 5 overleaf: "No deaths or unexpected collapses since July 2016, unwell babies have been cared for, received intensive care and in some cases transferred to the hospitals but their clinical courses have been far more predictable and responsive to treatment than previous cases. This
change cannot solely be attributed to the redesignation of the neonatal unit or any other changes in practice. "Some of the babies who collapsed in 2015 and 2016 were born at greater than 32 weeks' gestation and many were not receiving intensive care at the time of their collapses." At the end, saying: "We are making this request because patient safety is our absolute priority." Then we see at page 93, a document entitled there we are, observations additional to the RCPCH review. This document, I can tell you, Mr Rheinberg, includes the green text of the report, remember we looked at the green text?
RHEINBERG: Yes.
LANGDALE: That wasn't there, all but one paragraph. It doesn't include the last paragraph about: "In the light of information shared with the Review Team the RCPCH advise the Trust to follow corporate processes in responding to allegations of misconduct by opening investigation." But it does contain the other paragraphs in that green text?
LADY JUSTICE THIRLWALL: Ms Langdale, I know that you know and we know about green text. But I don't think the version that we looked at with Mr Rheinberg had green text, it was just the original.
MS LANGDALE: That is -- my apologies, Mr Rheinberg. So the findings in relation to a nurse that you looked at earlier, remember that document?
RHEINBERG: Yes.
LANGDALE: This document has the same information in it --
RHEINBERG: Right.
LANGDALE: -- except for the last paragraph --
RHEINBERG: Okay.
LANGDALE: -- for our purposes.
RHEINBERG: Right.
LANGDALE: But it has information about the nurse in it. This document doesn't include the reference to advising the Trust to follow corporate processes but it sets out that sheet of paragraphs?
RHEINBERG: Yes.
LANGDALE: That sheet that had the paragraphs?
RHEINBERG: Okay.
LANGDALE: So it appears those are three items that you are given: the Dr Hawdon report, the Consultants' letter and the observations described as observations, that section from the RCPCH review --
RHEINBERG: Right.
LANGDALE: -- that you hadn't seen before?
RHEINBERG: Right.
LANGDALE: Tell us when you had the meeting at what stage were you given those documents?
RHEINBERG: I can't remember. It may have been at the outset. I -- I can't remember. In fact, I'm glad that I took a note of the meeting because that served to remind me of the meeting. Before I read my attendance note the recollection of the meeting was somewhat -- somewhat vague.
LANGDALE: Shall we go to your meeting note then and see what you can tell us about the meeting itself. INQ0002048, page 102.
RHEINBERG: While we are just getting that on the screen would it be unusual to have the Medical Director Mr Harvey and Mr Cross coming to see you like this?
RHEINBERG: Yes. Very unusual. Not unusual for me to meet representatives from the hospital. I -- if I had any issues, I would often arrange for an appointment to see the Chief Executive or the Medical Director, probably more the Medical Director than the Chief Executive. But unusual to get a delegation, as it were.
LANGDALE: So why did you think at the time they wanted to come and see you, what did they want to share or discuss with you, as far as you were concerned?
RHEINBERG: My understanding was that they wanted me to conduct some sort of overall review, a sort of independent inquiry into all the deaths, not something that I would have any power or authority to do. But that, that was my general understanding, that they wanted me to make some sort of further investigation. But it was just -- I don't think I was given any specific reason prior to the meeting. But that is a little bit of conjecture because I cannot quite remember the circumstances in which the meeting was arranged.
LANGDALE: So they were concerned about the deaths or wanted a review, or you can't remember now?
RHEINBERG: Yes. I think the fact that I asked for Alan Moore to be or suggested that he should be present was clearly going to be relevant for ongoing themes and with my retirement imminent, it was important that he shouldn't be left out of any, any discussion.
LANGDALE: If we look at paragraph 2: "The first item of the enclosures is a bundle of in-depth reviews into the baby deaths in question and towards the end of the bundle is a sheet indicating which review relates to which baby. In the case of each review, a document will be expanded and written in an easily comprehensible form to be delivered to the
parents. We will be given a copy." So might you have gone into the notes or Dr Hawdon's report in the meeting?
RHEINBERG: Yes.
LANGDALE: You look uncertain there but it makes sense from the notes, doesn't it?
RHEINBERG: Yes, it does, yes, yes.
LANGDALE: You are talking about the report and looking at it so you think -- how long was this meeting, roughly, do you know now?
RHEINBERG: I don't remember it being very long, possibly because I wasn't delivering what they hoped I would deliver. I -- at a guess I would say about 30 minutes. But that -- that is only a bit of a guess.
LANGDALE: So it looks as though you have got -- you were sighted on the Hawdon Review or at least the babies --
RHEINBERG: Yes.
LANGDALE: -- that they were looking at. Then we have got the clinicians from the neonatal unit have written to the Chief Executive and a copy of that letter is also enclosed?
RHEINBERG: Yes.
LANGDALE: They are asking for the Coroner to hold an Inquest in each case.
"NLR observed that Inquests can only be held when there is a jurisdiction to do so and explained that the Coroner must have a body within his jurisdiction and have reasonable cause to suspect that the death was unnatural, came with a particular further category or where the cause of death was unknown. It seems to NLR that in relation to the list of deaths in question they may into one of a number of categories as follows." Before we go to that, do you think you read that letter, you are referring to the letter, the copy of the letter is enclosed, did you read it?
RHEINBERG: I -- I imagine I had -- either I had or I had received a summary of it, I -- I can't say which.
LANGDALE: So those two documents, the Hawdon document you had looked at, report, likely the letter or had it summarised. What about the third one, the observations document I have just taken you to from the RCPCH review? Did you look at that? If it helps in your statement you say "I don't recollect looking at that document"?
RHEINBERG: No. I have to say I would really only be guessing. I -- I can't, I have no actual collection.
LANGDALE: You say: "If it had been the subject of any discussion, I would have made reference to this in my note."
RHEINBERG: Yes.
LANGDALE: But you can't remember now one way or another?
RHEINBERG: I can't remember. When I do take a note of a meeting or a conversation, I do try to make it comprehensive and I would hope that relevant matters that were raised or whatever would appear in -- in my note. No point in making a note if it isn't comprehensive.
LANGDALE: But --
RHEINBERG: But since I have no recollection, I can't -- can't say one way or the other.
LANGDALE: If we look at the six points you make, then, can you just summarise for us now what you say?
RHEINBERG: Well, I am explaining that in those cases where I have already had held an Inquest, I can't go back over it because I have no legal authority to do so. I have explained that where I have, or my one of my deputies has signed a part A, a form 100A, indicating that the Coroner does not intend to exercise any jurisdiction, there are problems in holding an Inquest subsequently, the principal one of which being that you don't have a body lying within your jurisdiction, so you would need to get permission from the Chief Coroner under section 2 of the Act. I'm explaining in clause 3 that I am not functus officio, as it were, I am not without jurisdiction if I have discontinued an investigation and further information has -- has come to light. Then I refer to deaths already listed for Inquest, obviously those can be heard, and then deaths where investigations are ongoing. Then I say, I'm not sure that it is very elegant: "NLR made it clear that the Coroner's office does not operate as a system of governance." I got really got the idea that what the Consultants wanted was me to have an overall review of all the cases to see if there were any, any mistakes or any common themes or whatever. And I was explaining that that -- I don't have jurisdiction to do -- to do that, no authority to carry out a general review, as it were, only to hold an Inquest into a specific death.
LANGDALE: Thank you. Just finally from me, in terms of the bundle, can you remember now having it with you and being able to flick through that?
RHEINBERG: I don't, no, I'm afraid.
LANGDALE: But it's reasonable looking at that as though you would have had it and at least been cross-referring to it?
RHEINBERG: It may well be the case. It's all a matter of interpretation from my note. I haven't got any actual
recollection.
LANGDALE: But from those present at the meeting with you, Mr Harvey and Mr Cross, it's a fair assumption for them to make that you have got that information --
RHEINBERG: Yes.
LANGDALE: -- or you can see that information?
RHEINBERG: I -- I can't challenge that.
MS LANGDALE: Thank you, those are my questions.
RHEINBERG: Thank you.
LADY JUSTICE THIRLWALL: Mr Skelton.
Questions by MR SKELTON
MR SKELTON: Mr Rheinberg, I ask questions on behalf of one of the Family groups --
RHEINBERG: Yes, thank you.
SKELTON: -- including the Family of [Child A], whose Inquest was conducted in 2016. After the death of the two Triplets O&P in June 2016, there were a series of internal meetings at the hospital attended by the Consultants and the Executives. One such meeting took place on 29 June and was attended by Dr Brearey, Dr Saladi, Dr Jayaram, Mr Cross, and Mr Harvey.
RHEINBERG: Okay.
SKELTON: You won't have been aware of these internal meetings?
RHEINBERG: No.
SKELTON: I am not going to put the note of the meetings to you.
RHEINBERG: Right.
SKELTON: But it is fair to say at this meeting and at other meetings at this time there was discussion about the Consultants' concerns about Lucy Letby?
RHEINBERG: Concerns about?
SKELTON: Lucy Letby.
RHEINBERG: Oh, yes, okay.
SKELTON: In particular, at the meeting in question on the 29th, Dr Brearey mentioned her being a common theme between the deaths as early as July 2015, after which, as you know, three children had died --
RHEINBERG: Yes --
SKELTON: -- including [Child A]. They described the types of deterioration that the babies suffered which were sudden and unexpected, the fact that they didn't respond to resuscitation measures as would be expected and Dr Jayaram speculated that there may be some issue with injection of air and air embolism via a cannula. But of course that discussion didn't evolve into any particular investigation as you know. They in particular discussed the Twins on a number of occasions, including mentioning that only one of the
Twins survived but they had both collapsed, as you know?
RHEINBERG: Yes.
SKELTON: [Child A] had a Twin who also collapsed but fortunately survived, [Child B]. All of this I think you were entirely unaware of --
RHEINBERG: Completely.
SKELTON: -- throughout 2015 and 2016?
RHEINBERG: Yes, and it's horribly disappointing.
SKELTON: That is exactly what I was going to ask you about, Mr Rheinberg.
RHEINBERG: Yes.
SKELTON: Would you have expected Mr Cross or someone else prior to [Child A]'s Inquest to have raised those types of concerns with you as the Coroner?
RHEINBERG: Absolutely. It was all within the -- the ethos of the SUDI Sudden Unexpected Infant Death protocol, that we should approach all these tragedies not just in our own ivory towers; that we should share all information because we might individually have pieces of the picture to put together. So police, hospital, everybody that has anything to add should add to the discussion, as I say, to complete a full picture what have has happened. And within Cheshire, the protocol went out under my badge, as it were, so I was the -- I was to be the co-ordinator of action, if action was required. So the protocol went out initially in my -- by this time it had been superseded by further iterations of the document but the initial intention was that the Coroner's office should be the focus for the inquiries partly because of course the Coroner's office had powers that the others didn't have. So yes, I'm sorry, I have rambled on a bit but very, very disappointing that relevant information is not shared.
SKELTON: Just on the SUDiC protocol, is that a local protocol that you would have assisted in drafting?
RHEINBERG: Yes. I think the first protocol was produced in 2001, it -- there was a general -- up until that time there had been a general feeling across the country that there should be better co-ordination in relation to infant deaths and I forget which area had produced the first protocol; it may have been Sussex, it may have been Suffolk, I can't remember, but a very excellent document. And I think I'm right in saying that the triumvirate, me, Dr Nisar Mir and Dr Ruth Spedding, who put together the initial protocol, leant very heavily on that, that precedent, as it were, because it was a very good document.
SKELTON: Just in terms of specifics. How would that -- those concerns have been or how should they have been communicated to you, by whom and by what means?
RHEINBERG: I suppose that we are talking about a discussion after -- some time after the events, as it were. In the initial stages under the protocol, there would be a first meeting within 72 hours, when representatives from hospital, police, paediatricians, et cetera, would decide on a strategy for further investigation. Now, that tended to occur almost exclusively for deaths in the -- in the community rather than in hospital, although the mechanism was there to be employed for the -- in the hospital as well. But under the spirit of the -- the protocol which the hospital had or the hospitals in Cheshire had contributed to the discussions, any information that was relevant should be passed on to the Coroner. But quite outside the protocol, that -- that should be the case in any event. I am holding Inquests, I need information. I am holding investigations. I need people to be forthcoming with information.
SKELTON: Would you have expected Mr Cross to have contacted you with that type of information?
RHEINBERG: As apparent spokesman, yes.
But any individual that had that information should could and should have passed it on, whether by informal chat with me or through one of my officers.
SKELTON: Your evidence I think in writing and today was a suspicion of that type immediately warrants contact with the police, formally or informally?
RHEINBERG: Absolutely. And I -- I think I explained the mechanism in my statement.
SKELTON: Yes.
RHEINBERG: One of the participants or one of the SUDI team, as it were, was Inspector Mark Tasker and I think probably on getting information such as that, I might have gone straight to Inspector Tasker because he -- he would have all relevant knowledge about procedures within the police force for investigating deaths such as this.
SKELTON: Do you take that view, that that contact with the police is required, notwithstanding that at that stage all you have is the opinion of the Consultant or body of Consultants?
RHEINBERG: Yes. The relationship with the police was a close one. I have already explained about my officers being employed by the -- by the -- the police and on many occasions because I only had a limited amount of officers, it was the police that were investigating on
my behalf. And in cases where the -- there was any suspicion of a gross failure within a hospital, the first thing that I would do would be contact the police to seize medical records, not that I distrusted the medics, as it were, but I didn't want any possibility of notes being interfered with or written up subsequently. So yes, I -- I would contact the police in the event of a suspicion.
SKELTON: Ms Langdale asked you about the Serious Untoward Incident or Serious Incident Investigation?
RHEINBERG: Yes.
SKELTON: There is a series of correspondence by email and by letter which you express a great deal of frustration about the non-production of that?
RHEINBERG: Yes, yes.
SKELTON: How common was it for the hospital or other hospitals in your jurisdiction not to produce a report that you requested like that?
RHEINBERG: If it -- there was often a delay not -- not so much in the production of the report but in the disclosure of the report but in the actual preparation of the report. But invariably when a report was available and I had requested a copy, it -- the hospital would provide it.
SKELTON: Your answer may be understood as if one is already there --
RHEINBERG: Yes.
SKELTON: -- you would expect to get it, but if they haven't already done an investigation but you are saying "one is needed and I need to see a report" would that --
RHEINBERG: Okay, clearly my understanding was that this -- there was an ongoing specific investigation. So my expectation would be immediately any report was produced that I had requested, it -- a copy you would be provided to me.
SKELTON: But not that they would do one to your direction?
RHEINBERG: No. No, I didn't have any power to do this. I -- I might make strong suggestions that this would, was an appropriate course for them to take, but not something that I could demand.
SKELTON: You were provided a copy I think of the Thematic Review that had been conducted at the end of 2015 --
RHEINBERG: Yes.
SKELTON: -- into 2016. Do you recall whether or not that version of the report that you saw identified that the babies had suddenly deteriorated and that was a common factor across the mortality?
RHEINBERG: I can't -- I can't recall. I can't recall
now.
SKELTON: Dr Hawdon's review, Mr Cross emailed you and I think may we have the email on the screen just to sort of anchor the period of time on 6 October, INQ0053069. You will see the email there to you from Mr Cross at the bottom. Mr Rheinberg, just by way of summary as you probably have picked up there was a lot going on after June and that included the instruction of the Royal College to do a review?
RHEINBERG: Yes.
SKELTON: And their recommendation that a forensic Casenote Review --
RHEINBERG: Yes.
SKELTON: -- or detailed forensic Casenote Review be done and Dr Hawdon was instructed as a result of that --
RHEINBERG: Yes.
SKELTON: -- before in fact the College had formally reported?
RHEINBERG: Right.
SKELTON: They advised in writing that that was needed?
RHEINBERG: Yes.
SKELTON: I think what is happening here is Mr Cross is contacting you before the formal report but with the recommendation that a Casenote Review be conducted?
RHEINBERG: Yes.
SKELTON: And that you can see he is saying they have indicated they are entirely satisfied with the care within the neonatal unit and raise no concerns, however they recommended the detailed forensic Casenote Review of each of the deaths. And you were aware of that from this email?
RHEINBERG: Yes, yes.
SKELTON: You weren't, I think, provided with Dr Hawdon's instructions specifically?
RHEINBERG: No.
SKELTON: Can I just ask you to look at those on the screen as well, please, that is INQ0012066. And the reason I ask you to look at this, Mr Rheinberg, if you could just have at that first substantive paragraph 2?
RHEINBERG: Paragraph?
SKELTON: Paragraph 2 made a bit bigger because it is quite hard to read on the screen?
RHEINBERG: Okay, yes. Thank you.
SKELTON: That's it, if you just take a moment to read that, Mr Rheinberg, please?
RHEINBERG: Yes. (Pause) Yes, thank you.
SKELTON: So the information in that paragraph is not
provided to you by Mr Cross, but this is the justification that the Royal College give and you will see that it raises a few issues and in particular the pattern of deaths?
RHEINBERG: Yes.
SKELTON: The mode of deterioration in some of them which is unusual --
RHEINBERG: Yes.
SKELTON: -- and requires further inquiry. Is that the type of information that you needed to know when you were approaching [Child A]'s Inquest?
RHEINBERG: It -- it would be extremely helpful. I think one of the things that wasn't undertaken in relation to [Child A]'s Inquest was an independent examination of evidence by an expert instructed by me. The more information that I had raising questions, might well have prompted me to get independent expert advice.
SKELTON: Is the fact that the mode of deterioration is unusual and there is a cluster of children itself something that you as Coroner would be concerned by?
RHEINBERG: Certainly it would be a factor, yes.
SKELTON: Something to --
RHEINBERG: Of concern, yes.
SKELTON: Something to investigate?
RHEINBERG: Yes.
SKELTON: I won't ask you to read the whole document but it does mention you will see in paragraph --
RHEINBERG: Sorry, can I just -- sorry, just to give -- put that in context with a case that I was dealing with at that time with a cluster of deaths at an old people's home that appeared to relate to the fact that they had been lock, stock and barrel moved from another home and then had died within a period of time. That was an investigation that I had an expert undertake because of the fact of a -- an apparent common theme.
SKELTON: Would you have considered the other baby mortalities that occurred in the neonatal unit and thought: well do I need to start looking at these together rather than independently?
RHEINBERG: I -- yes, if there was any common theme identified then, yes, that, that was certainly something to take into consideration. I have it in mind, however, on the other hand the fact that I knew that there was an independent investigation being undertaken by the Royal College, so that is something also I would take into -- into account. I'm not sure if I had been given that knowledge how the balance would, would have tipped;
whether I had thought, well, it's been looked into, or whether I would have thought: I -- I better take this up independently. I -- I can't -- I can't say which way I -- I would have gone.
SKELTON: What appears to occur at the Inquest into [Child A], which I will come on to in a minute, if I may?
RHEINBERG: Yes.
SKELTON: Is that you are looking to try and test what might have happened to this child to cause death?
RHEINBERG: Yes.
SKELTON: Because on the face of it the doctors and pathologist aren't able to provide a --
RHEINBERG: No.
SKELTON: An explanation that satisfies you. If you had known that this investigation was going on independently, and also if you see from sub-paragraph (c) that it was going to be looking at rare conditions, such as air embolism and metabolic derangement, how would you have responded to that fact?
RHEINBERG: Yes. It would be a line that I would want to have been looked into. All that I have at, before the Inquest is a question mark: these could have been causes of death, the error with the line, the crossed pulmonary artery, but not, not a -- it was rather grabbing at
straws to find an answer. So if there was any suggestion provided that there might have been another mechanism, that is something I definitely would have wanted to explore.
SKELTON: At the Inquest, Dr Jayaram gave evidence --
RHEINBERG: Yes.
SKELTON: -- twice. He first gave evidence about his own involvement with the child?
RHEINBERG: Yes.
SKELTON: And then I think you brought him back after speaking to the pathologist to explain his opinion?
RHEINBERG: Yes.
SKELTON: So was he in that sort of quasi expert role that you previously described?
RHEINBERG: Yes, absolutely.
SKELTON: So you are looking to him to assist you on --
RHEINBERG: Yes.
SKELTON: -- possibilities at that point?
RHEINBERG: Yes.
SKELTON: Rather than the facts of what he did or didn't do?
RHEINBERG: Well, I suppose he's -- I'm expecting him to give evidence on a mixed basis; the bases being his own actual knowledge and as a witness of fact but with his
expertise to explain as well.
SKELTON: As I set out earlier in my preface to the questions, Dr Jayaram was in fact suspicious of Lucy Letby at that time and also suspected that she may have injected air into one or more children and was suspicious about [Child A]'s death in particular. He has accepted he should have mentioned that suspicion to you. Can I ask for your reaction to that?
RHEINBERG: Yes. Absolute horror. Why, why not? Why wouldn't you? I -- I think in those, if that had come out at the Inquest, I would have adjourned, I wouldn't have gone on any further, and probably sought police involvement.
SKELTON: Likewise in respect presumably of Dr Saladi although his role at the Inquest was much more minor but he was aware of the suspicions and indeed shared them as well?
RHEINBERG: Yes. It -- it does seem extraordinary.
SKELTON: Can I ask you --
RHEINBERG: Can I ask, did either of these individuals explain why they hadn't brought that information out?
SKELTON: It's --
LADY JUSTICE THIRLWALL: I think that is probably a matter for me to determine. You can certainly read the transcripts if you want.
RHEINBERG: It's inappropriate, I beg your pardon.
LADY JUSTICE THIRLWALL: No, it's all right.
MR SKELTON: The hospital were represented at the Inquest and there is a question about what their counsel, who is a senior barrister at that point, Mr Browne, knew. But it is clear and he has accepted that he was told prior to the Inquest that there was some connection between a specific nurse and [Child A] which the hospital had been considering?
RHEINBERG: Right.
SKELTON: He was also aware of Dr Hawdon's instructions and which is still on screen in front of you which I have taken you through?
RHEINBERG: Yes.
SKELTON: I can't put it any higher than that because Mr Browne, to be fair to him, has not got a clear recollection?
RHEINBERG: Yes.
SKELTON: And note isn't precise about exactly what he was told?
RHEINBERG: Okay.
SKELTON: He was aware of a connection between a nurse and indeed had asked that some research be done to see if the nurse was involved with [Child A]'s care?
RHEINBERG: Okay.
SKELTON: Had advised that that fact be disclosed to the Family?
RHEINBERG: Yes.
SKELTON: As far as you were concerned, the Coroner at the Inquest, would you expect counsel to raise that issue with you the fact that the hospital were considering a nurse and her connection to the [Child A]'s death?
RHEINBERG: Okay. Answering more generally, first of all. It's been my happy experience that the more senior the counsel attending an Inquest the more they embrace the philosophy, if you like, that an Inquest -- that they are here to assist the inquiry. So it's been my experience that in asking questions of their witness, if there is relevant information, even if it might detract from their own client's position, that that question will be asked. So going back to the specific. If counsel knew of serious concerns, then, I would expect at the very least for those concerns to be put as questions to their witness so that the matter came out in the open. I'm not sure what the legal position would be so far as the barrister actually informing the Coroner. I -- I suppose the correct course of action would be:
this is relevant, you must either disclose this yourselves, if you will not do so I am bound by my own professional conduct and must withdraw from this particular set of instructions. But one way or another I would expect a legal representative to seek to have that information brought to the attention of the Inquest.
SKELTON: Just finally on [Child A]'s Inquest can I just ask for your overall observations on the Inquest and in particular the position of the Family. I think as you are aware, because you were in contact with them, the Family were represented and they were extremely anxious to find out why [Child A] had died?
RHEINBERG: Absolutely yes.
SKELTON: Many, many months had passed since his death and they still didn't have any answers?
RHEINBERG: No.
SKELTON: Can I ask just for your observations on the sort of dissonance between what the hospital knew and were investigating and the way the Inquest ended up not answering any questions?
RHEINBERG: Right. Of course I didn't know that there were questions that --
SKELTON: No.
RHEINBERG: -- were unanswered.
From my own point of view, I was not happy with the Inquest. It didn't really achieve very much. It brought the legal process to an end, but without any -- without any solid answers and sadly that is, that -- that can be the case; that the evidence just isn't there. It can't be, can't be found. But it was a disappointment that nothing really very solid emerged from that Inquest.
SKELTON: In this case I was asking you specifically about the fact that the hospital were aware of things that related to [Child A]'s death but that was never brought to the family's attention via the Inquest process?
RHEINBERG: Right. No, to put it mildly, that is extraordinarily disappointing.
SKELTON: After the Inquest you had contact with -- continuing contact with the hospital. Ms Langdale has asked you about the various meetings --
RHEINBERG: Yes.
SKELTON: -- and the correspondence that you had. Can I be clear that at no time did Mr Harvey or Mr Cross or anyone else bring the -- raise the concerns directly in terms with you and discuss them with you?
RHEINBERG: No.
SKELTON: Your answer to what you would have done is exactly the same in terms of contacting the police --
RHEINBERG: Yes.
SKELTON: -- and setting in train a series of investigations through that means?
RHEINBERG: Yes. I used -- probably it was regarded as a bit of a pain but I would go to the police with any suggestion of criminality. As I am sure you can imagine, an Coroners office in an area as large as Cheshire gets a fair number of crank email -- correspondence. The block capitals, underlined, green ink sort of style. Some of these will relate to totally irrelevant matters, some will allege criminality no matter how extraordinary or however unlikely, or however it may be almost crystal clear that the person in question is mentally ill. All such communication was sent to the police for investigation with the instruction that I was to be informed as to the -- as to the result of that investigation. So there would be no case of me withholding information such as that from the police. It didn't mean that it had my endorsement, it didn't mean that I was saying somebody was guilty of a crime. It was -- I was just asking in each case: please investigate.
SKELTON: Even after [Child A]'s Inquest had concluded,
and as you said you were functus officio by that stage --
RHEINBERG: Yes, yes.
SKELTON: -- if evidence or information comes to your attention which may mean that the result of the Inquest is wrong --
RHEINBERG: Yes.
SKELTON: That is something that you can raise as being a possible?
RHEINBERG: Absolutely and I have judicially reviewed myself. One case in particular where really very pertinent information came out due to an advance in medical understanding which showed that what had been delivered as an open verdict in fact had a -- a very specific cause and because it -- it was so important even though the appropriate conclusion would be natural causes as opposed to open, the matter in my view was so important that I -- I sought to set aside the original Inquest and start again, as it were. So being functus officio doesn't -- well, A, obviously stop me passing on information to the police; but also it doesn't stop me going to the High Court to get my Inquest set aside.
SKELTON: In this case, again stepping back, you were not provided with relevant information in respect of
[Child A] and other children. But focusing on [Child A] --
RHEINBERG: Yes.
SKELTON: -- the reasons for that, of course, are the focus of this Inquiry, at least one of its focuses. But can you think of any reform or recommendations that could be made to stop that from happening again?
RHEINBERG: Well, it -- it's so much a matter of professional conduct and particularly in this era of full disclosure, et cetera, it -- it's difficult to see how existing professional standards don't cover it already. But I can't think of anything over and above what is in existence already that could be brought into -- into play.
SKELTON: Could it be for example that it should be made clear in policy and guidance that if a member of staff is suspicious that a child may have died from deliberate harm, no higher than that, that you at least must be informed?
RHEINBERG: Yes. And of course there is a duty which I think is reproduced as a medical standard that the Coroner must be informed. Back to the Middle Ages, it's always been the case that there is a duty to inform the Coroner. It's nothing new.
MR SKELTON: Thank you, Mr Rheinberg. Thank you, my Lady.
LADY JUSTICE THIRLWALL: Mr Baker.
Questions by MR BAKER
MR BAKER: Good afternoon, Mr Rheinberg, I ask questions on behalf of the other two Family groups.
RHEINBERG: Yes, thank you.
BAKER: I want to begin by asking about sharing learning between different Coroner areas.
RHEINBERG: Okay.
BAKER: So there are a number of different Coroner areas across North West --
RHEINBERG: Yes.
BAKER: -- of England?
RHEINBERG: Yes.
BAKER: Many of them adjacent to each other?
RHEINBERG: Yes.
BAKER: Do the Coroners -- Senior Coroners meet up and exchange information, learning or experience at all?
RHEINBERG: Yes. I was -- because my jurisdiction was contiguous to them, I was brought into the -- I was going to say "club", it sounds entirely wrong, but the Manchester Coroners held regular meetings and I was invited to join that group, as it were, so that we should strive to be consistent, nothing worse than having the Coroner in Cheshire acting completely outside the -- the practice of the Manchester Coroners. Wider than that, we have the North West Coroners Society meeting regularly, having education sessions and to a certain extent acting as a discussion point. Not so much though, perhaps, but what has been a unifying factor since before 2013 has been the appointment of the Chief Coroner --
BAKER: Yes.
RHEINBERG: -- and that has been enormously helpful. For the first time it sounds extraordinary to say this but for the first time ever education is compulsory and not something that you -- you go to if you happen to have the time to spare and we -- we have all the Practice Directions, legal sheets et cetera, very, very helpful in trying to get unity of practice.
BAKER: Yes. Now --
RHEINBERG: It doesn't answer your question because of course you are asking about sharing information.
BAKER: It goes to the next question, in fact?
RHEINBERG: Yes.
BAKER: Because of course the crimes of Harold Shipman were committed not in your jurisdiction but immediately adjacent to your jurisdiction?
RHEINBERG: Yes, yes.
BAKER: Did the Shipman crimes and subsequent Inquiry trigger any discussion or training provided to Coroners
including yourself in the North West?
RHEINBERG: Yes, a huge amount. It, it -- we all looked at our practices and it had a huge impact also on doctors, particularly lead general practitioners who started reporting absolutely everything and the -- it was what we described as "the Shipman effect". So it -- it didn't actually paralyze the service but it did lead to a whole lot of inappropriate referrals.
BAKER: Yes, but a greater awareness?
RHEINBERG: It created a huge awareness and, I mean, it sent a horrible shudder throughout -- well, through all the Coroners: could this occur in my jurisdiction?
BAKER: And in 2015, Victorino Chua was convicted of committing murders at Stepping Hill hospital?
RHEINBERG: Yes.
BAKER: Of course that would have fallen within Manchester South's jurisdiction. But again, do you recall any discussions in 2015 as part of the Manchester group relating to the crimes of Stepping Hill hospital at?
RHEINBERG: I am sure there will have been -- I cannot bring them to mind now.
BAKER: All this brings us to this: if your attention had been drawn to a cluster of unusual, unexpected, sudden, unexplained deaths with comments or concerns
about a single nurse being present for all of those deaths, or at crucial points during them, is it fair for the Chair to infer that if that had been drawn to your attention, it would have immediately triggered an alarm bell for you?
RHEINBERG: Yes, it would certainly trigger an alarm bell I'm not sure that I would discuss it with -- with colleagues on the basis that --
BAKER: No, no?
RHEINBERG: -- at that stage it would be tittle-tattle.
BAKER: Yes.
RHEINBERG: As opposed to something to be taken into account.
BAKER: I suppose the point I am making is that by the time we get to 2016/2017 --
RHEINBERG: Yes.
BAKER: -- there has been so much discussion arising out of Shipman, you have had incidents at Stepping Hill Hospital, you have had your own experience of a spike of deaths in a care home which you described --
RHEINBERG: Yes.
BAKER: -- all of that learning and information would have put you on heightened alert, wouldn't it, to information surrounding suspicions about a nurse being involved in deaths in a hospital?
RHEINBERG: Yes. Absolutely. Perhaps relevant to mention a murderous nurse in one of my hospitals, Leighton Hospital.
BAKER: Yes.
RHEINBERG: There are certain parallels in that case parallels, this nurse was -- it's not an appropriate word but euthanasing individuals in a way that was absolutely undetectable. She was choosing victims at the end of their life typically suffering from congestive cardiac failure which leads to a build-up of fluid on the lungs and the simple expedient that she was using was removing a pillow so that in effect the victim was dying almost drowning on their own fluid. Absolutely no sign at postmortem. But a very terrible state of circumstances.
BAKER: How did that come to your attention?
RHEINBERG: I can't now remember. It was very early on --
BAKER: Yes.
RHEINBERG: -- fortunately and the nurse in question was arrested. It wasn't this sort of timescale.
BAKER: No, but given all of that experience --
RHEINBERG: Yes.
BAKER: -- one of the issues the Chair may have to determine is what information was provided to you about suspicions regard Lucy Letby?
RHEINBERG: Yes, yes.
BAKER: Would it not be fair to say that given your experience, given the general level of sensitivity towards crimes in hospital or Coroner sensitivity towards the possibility of crimes that if it was raised with you in any sort of explicit way, that you would have acted immediately upon it?
RHEINBERG: Yes, of course.
BAKER: Yes. Moving on to a slightly different topic. You were asked a question by Ms Langdale about challenges sometimes in finding the cause of death in a neonate and it is correct the Inquiry has heard evidence from Dr McPartland that it can sometimes be challenging to identify a cause of death at postmortem?
RHEINBERG: Yes.
BAKER: That's because for a number of diseases that don't or processes that don't leave obvious marks on, to be visible at postmortem so --
RHEINBERG: I fear that that to some extent underlines the deficiencies in pathology.
BAKER: Yes.
RHEINBERG: You have a postmortem examination into -- with an elderly patient, you can find so much pathology you could write three or four death certificates.
BAKER: Yes.
RHEINBERG: The actual cause that's identified is the leader in the pack. But whether it actually is the cause of death is another question. With an infant, there's often so little to see that it, it is extraordinarily difficult to find a cause of death.
BAKER: But of course, if you have evidence from clinicians or accounts from clinicians, it is usually the clinical history that tells you what the cause of death was in those cases?
RHEINBERG: Yes, yes.
BAKER: So in other words, sepsis, which may not leave many marks --
RHEINBERG: Yes.
BAKER: -- on the body of a baby, there will be a history of sepsis --
RHEINBERG: Yes.
BAKER: -- and progression of that disease and likewise, you know, cardiac disorders, again bring about obvious symptoms in life in many cases that can be described by doctors in evidence?
RHEINBERG: When I first became a Coroner, it was the practice of some Coroners to give instructions that the pathologist was to be given no information whatsoever on the basis that the pathologist was to act as a totally independent expert and not in any way to be influenced
by the opinions of others. That was absolutely crazy.
BAKER: Yes.
RHEINBERG: The pathologist cannot see an errant electrical activity within the heart that was -- that was observed in the hospital.
BAKER: Yes.
RHEINBERG: You -- you have to have as much information as possible. 99% of it may be irrelevant but the pathologist has to be engaged fully with all available evidence.
BAKER: If I come on to [Child C] whose Family I represent. Again, to be very clear, I am not asking you to comment on any judicial decision-making. I just want to understand what information was provided to you --
RHEINBERG: Yes.
BAKER: -- and in what format. You discuss the conclusions you reached with regard to cause of death at paragraph 52 of your witness statement. Effectively what you say is that it was communicated to you by Dr Kokai that there was a natural cause of death, ie hypoxic ischaemic to the heart caused by respiratory failure?
RHEINBERG: Yes.
BAKER: Lung dysfunction?
RHEINBERG: Yes.
BAKER: So the Inquiry has heard evidence to suggest that Dr Gibbs, who was the treating paediatrician for [Child A], was concerned that the damage to [Child C]'s heart occurred following his collapse; so in other words, he had a collapse and then lived for a period --
RHEINBERG: Right okay.
BAKER: -- on the edge of life --
RHEINBERG: Yes.
BAKER: Before passing away and that the damage to his heart was caused during that period?
RHEINBERG: Right okay.
BAKER: But wasn't the cause of his collapse?
RHEINBERG: Right.
BAKER: His evidence was that actually with regard to his respiratory function and heart function leading up to the collapse, that all seemed to be normal to him?
RHEINBERG: Okay.
BAKER: So he was -- he had discussions with Dr Kokai about Dr Kokai's finding and may or may not have expressed concerns to Dr Kokai, it would certainly be evidence of Mother C that she understood there to be concerns by Dr Gibbs regarding the cause of death?
RHEINBERG: Right.
BAKER: Was any of that debate communicated to you?
RHEINBERG: No. I can't remember having any discussion with Dr Kokai or anyone else at Alder Hey. It was a very comprehensive postmortem report that seemed to produce a very clear line of causation.
BAKER: Yes.
RHEINBERG: The appearance was of a completely natural cause of death.
BAKER: Yes, and of course any Coroner is reliant upon the medical expertise of the pathologist in providing their description of what the cause of death is based upon the postmortem findings, but it is ultimately the role of the Coroner is it not to determine the cause of death?
RHEINBERG: Absolutely, yes.
BAKER: In some cases a Coroner may disregard what a pathologist says because there is other evidence in conflict --
RHEINBERG: Absolutely. Every postmortem report is looked at extremely carefully, particularly with a paediatric postmortem, and yes, if there are any queries or any apparent anomalies, these are taken up and personally I always found Dr Kokai extremely approachable --
BAKER: Yes.
RHEINBERG: -- and more than happy to discuss matters and
explain findings.
BAKER: I want to be clear I am not impugning Dr Kokai's competence, but there is sometimes a difference in opinion between clinicians and pathologist as to cause of death?
RHEINBERG: Yes, yes, I would hope normally though that that would be made clear in a report.
BAKER: Yes. Indeed. And the usual way to determine that dispute, if it can be categorised as a dispute, is to have an Inquest and to hear evidence, isn't it?
RHEINBERG: Yes.
BAKER: So if there is a disagreement as to the cause of death?
RHEINBERG: Yes, if it -- if it is that stark.
BAKER: Yes.
RHEINBERG: And I would anticipate or expect you will have seen in the postmortem reports it's invariable the correlation between the antemortem details and the postmortem details, just to tie the two up and I would have expected something there.
BAKER: Indeed recognising as we you said before that the postmortem findings are contingent upon in many cases what happened in life --
RHEINBERG: Yes.
BAKER: -- when you come to that point?
RHEINBERG: Yes.
BAKER: But it would go, in [Child C]'s case, to be important for an Inquest because it isn't a disagreement between two potential natural causes, it is a disagreement between a given natural cause or death being unascertained as a cause of death?
RHEINBERG: Yes, yes.
BAKER: That would be the reason to have an Inquest. So that would have been relevant and important information to provide to the Coroner?
RHEINBERG: Yes.
BAKER: Yes. In relation to [Child E], again you have been asked some questions, I hope not to repeat them but advice was given to the parents of [Child E] not to have a postmortem, or in other words that a postmortem wouldn't give any more information?
RHEINBERG: Right.
BAKER: Because the doctor concluded that the cause of death was Necrotising Enterocolitis?
RHEINBERG: Yes.
BAKER: Again, the evidence for that condition was somewhat fragile, it might be said?
RHEINBERG: Okay.
BAKER: The doctor who gave that advice has since said that actually I shouldn't have given that advice, there
wasn't enough evidence for Necrotising Enterocolitis?
RHEINBERG: Right, that is disturbing.
BAKER: Yes. Speaking as a Coroner, would you expect a clinician giving advice to parents about a postmortem to say a postmortem is going to be difficult and traumatic and it will be upsetting for you to have a postmortem, so even if there is a reason for it, we shouldn't have it?
RHEINBERG: What I -- well, that may or may not be the case. What I would expect was that the doctor reporting the death to make it clear that there were considerable doubts as to whether this was the correct --
BAKER: Yes?
RHEINBERG: -- diagnosis. In which case I would order a postmortem and obviously one tries to take into account the views of a family and before any postmortem the family will be consulted. Ultimately, it's for the Coroner to make the decision so it's not a question of this isn't a set of circumstances where one is contemplating in an absolutely stock natural cause death, discussing the possibility of a hospital postmortem. This is the Coroner's case and it is the Coroner that will make the decision.
BAKER: So going to two key points. One is that the Coroner is a person ultimately who make a decision about a postmortem?
RHEINBERG: Yes.
BAKER: Not the doctor or the parents. But secondly, Coroners shouldn't be misled by --
RHEINBERG: Oh, absolutely not. I mean, again the duty of candour, it's --
BAKER: Yes.
RHEINBERG: Am I right in recalling that it was Dr Napier that was the Assistant Coroner that dealt with -- I have got a feeling it was.
BAKER: It was the sitting Coroner.
RHEINBERG: On that particular day.
BAKER: I don't --
RHEINBERG: Right. I am almost certain it was.
BAKER: Yes.
RHEINBERG: And the advantage there would be that whereas most of my team were not medically qualified, Dr Napier is and was and -- a doctor second to none. And would have understood the nuances if full details were -- were given.
BAKER: But in Coroner's practice if you receive a telephone call from a treating clinician who says: I think it's Necrotising Enterocolitis, it would be a bold decision, wouldn't it, to disagree with that --
RHEINBERG: Oh absolutely, yes.
BAKER: -- conversation?
RHEINBERG: Oh, absolutely, yes, and I have to say that I think without exception in the case of the babies here, it was always a Consultant that made the report.
BAKER: Yes.
RHEINBERG: Which -- which is good practice. In the Coroners office we often are beset with difficulty because the -- it's the poor junior doctor that doesn't know a left leg from a right leg who's asked to report a death and trying to get something comprehensive before one gives up and says: I must speak to the Registrar ... So to have a Consultant report a death, unusual, but one would expect a very much higher standard.
MR BAKER: Yes. Thank you, my Lady, I have no more questions.
LADY JUSTICE THIRLWALL: Thank you, Mr Baker. Ms Blackwell.
Questions by MS BLACKWELL
MS BLACKWELL: Mr Rheinberg, my name is Kate Blackwell and I ask questions on behalf of the former Executives of the Trust.
RHEINBERG: Yes, thank you.
BLACKWELL: I don't have very many questions and they are based around the evidence that you have already given
today.
RHEINBERG: Okay.
BLACKWELL: In terms of the meeting of 8 February 2017 --
RHEINBERG: Yes.
BLACKWELL: -- you have told the Inquiry that you have no independent recollection of that meeting but you accept from the notes that were made that the meeting took place and that you were there?
RHEINBERG: Yes.
BLACKWELL: Yes. And my note of one issue that was discussed during the course of that meeting, the note made by Stephen Cross --
RHEINBERG: Yes.
BLACKWELL: Is that you are recorded as having said the Trust has done the right thing?
RHEINBERG: Yes.
BLACKWELL: Now, in his meeting note of 15 February meeting, so the following week, there is another note made by him that echoes that note?
RHEINBERG: Okay.
BLACKWELL: It says "absolutely right action by the Trust" Those comments made by you about the Trust commissioning the RCPCH report and then later Dr Hawdon's report?
RHEINBERG: They may, may well have been.
BLACKWELL: Thank you. During the course of that meeting, the second meeting on 15 February --
RHEINBERG: Yes.
BLACKWELL: -- we know that you were provided with three documents?
RHEINBERG: Yes.
BLACKWELL: The letter from the Consultants.
RHEINBERG: Yes.
BLACKWELL: Dr Hawdon's report.
RHEINBERG: Yes.
BLACKWELL: And the third document, which is headed "Observations Additional to the RCPCH Review" --
RHEINBERG: Yes.
BLACKWELL: "... of Neonatal Services." That includes the text that we have referred to --
RHEINBERG: Yes.
BLACKWELL: -- as the green text?
RHEINBERG: Yes.
BLACKWELL: You have said this morning, Mr Rheinberg, that you can't remember if that third document was discussed during the course of the meeting.
RHEINBERG: Yes. I think if it was, it would have been in my note.
BLACKWELL: Well, we have looked at your notes --
RHEINBERG: Yes.
BLACKWELL: -- and they are typed notes, aren't they?
RHEINBERG: Yes.
BLACKWELL: Do we take it from that that they weren't being made contemporaneously during the course of the meeting but written up afterwards or typed up afterwards?
RHEINBERG: No. My writing is absolutely appalling. I take a contemporaneous note and then immediately afterwards, I type it up. So, no. I do -- they are as near as can be properly described as a contemporaneous note.
BLACKWELL: If you didn't look through that third document during the course of that meeting, would you have looked at it afterwards, perhaps in the course of typing up your notes?
RHEINBERG: I can't remember having done so.
BLACKWELL: All right. Would it be unusual for you not to have read the full bundle of documents which you had been provided with?
RHEINBERG: I would hope so, but this particular time was horrendously hectic. I was seeking to hold as many Inquests as I could that on outstanding cases, handing over everything, preparing for retirement, going and doing the rounds of farewells, et cetera. So it, it was a busy time. I can't say one way or another.
BLACKWELL: Should you have looked at it?
RHEINBERG: Yes, obviously.
BLACKWELL: You have told the Inquiry this morning that the police, the hospital, clinicians, everybody, bear a responsibility for bringing any relevant information to your attention?
RHEINBERG: Yes.
BLACKWELL: And only then does the system become fully effective?
RHEINBERG: Yes.
BLACKWELL: We know that you were not provided with the full RCPCH report in January of 2017 and you were asked by Ms Langdale this morning what difference, if any, it would have made if you had been provided with the full report?
RHEINBERG: Yes.
BLACKWELL: Including the green text?
RHEINBERG: Yes.
BLACKWELL: Your answer to that was that: the redacted paragraphs clearly raised a matter that needed investigating.
RHEINBERG: Yes.
BLACKWELL: Your response would have been to report the matter to the police?
RHEINBERG: Yes.
BLACKWELL: You also went on in the latest session to tell the Inquiry that you were regarded as a bit of a pain because you would go to the police with any suggestion of criminality?
RHEINBERG: Yes.
BLACKWELL: But you didn't go to the police when you were provided with that information during the course of the meeting on 15 February, did you?
RHEINBERG: Which suggests that I -- I hadn't seen it.
BLACKWELL: You hadn't read it?
RHEINBERG: I hadn't read it.
BLACKWELL: All right. In fact, you could have gone to the police without informing the Countess of Chester Hospital, couldn't you?
RHEINBERG: Of course, yes.
BLACKWELL: Yes, because it's only a matter of courtesy, as you told the Inquiry --
RHEINBERG: Yes.
BLACKWELL: -- that you would inform them if you had gone to the police. You also told the Inquiry this morning that you had a conversation with your colleague Christine Hurst --
RHEINBERG: Yes.
BLACKWELL: -- a Senior Coroner's officer, about the unexpected deaths at the hospital when you had had
reported to you the deaths of [Child O] and [Child P]. You told us that this morning?
RHEINBERG: Yes.
BLACKWELL: Was that the first such conversation that you had with Ms Hurst or any of your Coroner's officers?
RHEINBERG: No, no, it -- having three deaths quite close together in --
BLACKWELL: In June of 2015.
RHEINBERG: -- 2015 we will, we will have discussed that as a team.
BLACKWELL: What was the state of your professional curiosity back in June of 2015?
RHEINBERG: What was state of ...?
BLACKWELL: What was the state of your professional curiosity in June of 2015? How professionally curious were you about the cluster of deaths then and what was being discussed?
RHEINBERG: Well, it, it was worrying. But -- well, there we are. It was worrying. But as, as the results came, came out they all seemed to be explicable.
BLACKWELL: There were no forensic postmortems in any of the neonatal deaths that were referred to you, were there?
RHEINBERG: Correct.
BLACKWELL: As you have explained to the Inquiry, scrutiny and care is much greater with a forensic pathologist than with -- and during a forensic postmortem?
RHEINBERG: Right, okay. I may -- that's why I introduced the -- my mention of general postmortems.
BLACKWELL: Yes.
RHEINBERG: A paediatric postmortem is absolutely meticulous; not in any way deficient or unsatisfactory when placed against a forensic postmortem. It's just a different focus. So the paediatric pathologist will look with expertise with regard to paediatric mortality. The forensic pathologist will look for any evidence, signs of criminality and will involve the police to a vastly greater extent. The postmortem typically will still be carried out by the paediatric pathologist with the forensic pathologist looking on. Typically it will be the paediatric pathologist who takes the lead in histopathological areas --
BLACKWELL: Yes.
RHEINBERG: -- and in relation to all the other tests. But, as I said, the focus of the forensic pathologist will be on the possibility of criminality. And what that adds to the investigation is partly the
forensic knowledge and what to look for --
BLACKWELL: Yes.
RHEINBERG: -- but, secondly, the close communication with the police and the extra information obtained.
BLACKWELL: So what you are describing in a forensic postmortem of a neonate or a child --
RHEINBERG: Yes.
BLACKWELL: -- would be the presence of the neonatal pathologist?
RHEINBERG: Yes.
BLACKWELL: The forensic pathologist and the police?
RHEINBERG: Yes, exactly. It's a collaborative process.
BLACKWELL: Yes. Thank you. In terms of the deaths that were reported to you during the period relevant for this customer, there was only one. I am so sorry -- yes, there was only one Inquest held and that was in relation to [Child A] because there were three awaiting --
RHEINBERG: Yes.
BLACKWELL: [Child D], [Child O] and [Child P]?
RHEINBERG: Yes.
BLACKWELL: But in fact those were adjourned once the police investigation was launched?
RHEINBERG: Yes, so I understand, yes.
BLACKWELL: Yes. As a Coroner, the decision for you to order a postmortem is driven by the information provided
to you by the clinicians?
RHEINBERG: Yes.
BLACKWELL: Yes, and one of the additional benefits of a forensic postmortem might be that samples would be retained. There might be a toxicological examination ordered and those additional aspects that wouldn't necessarily --
RHEINBERG: No, those are always standard with, with any --
BLACKWELL: With any postmortem?
RHEINBERG: Within Alder Hey.
BLACKWELL: Right.
RHEINBERG: I can't say for the rest of the country.
MS BLACKWELL: Yes. Thank you very much. That is all I ask, my Lady.
LADY JUSTICE THIRLWALL: Thank you very much, Ms Blackwell. Mr Rheinberg, we are going to take a short break but I hope if we just take 15 minutes, then we can conclude. I have one or two questions for you but I want the shorthand writer to have a break and I want to check some references, so we will come back again at quarter past 1.
(1.01 pm)
(A short break)
(1.15 pm)
Questions by LADY JUSTICE THIRLWALL
LADY JUSTICE THIRLWALL: Now, Mr Rheinberg, I wanted just to ask you one or two questions about one or two of the documents.
RHEINBERG: Certainly.
LADY JUSTICE THIRLWALL: You will recall earlier in your evidence you were asked about the Inquest of Baby A [Child A].
RHEINBERG: Yes.
LADY JUSTICE THIRLWALL: And that in the early days, when you were first involved, this is well before the Inquest took place, documents were sent to you and then on -- and some of them on to the parents of Baby A [Child A]. The first was the short report with Dr Brearey's signature --
RHEINBERG: Yes.
LADY JUSTICE THIRLWALL: -- on the bottom, do you remember.
RHEINBERG: Yes.
LADY JUSTICE THIRLWALL: The other document that you received, but it isn't clear to me that that was sent on was the Thematic Review. We have seen --
RHEINBERG: Right.
LADY JUSTICE THIRLWALL: -- various versions of the Thematic Review but we know that you had one and we have looked at it earlier. Would you like to have a look at it just to --
RHEINBERG: No, I can remember. I cannot recall whether or not that was sent to the Family.
LADY JUSTICE THIRLWALL: Certainly the document that we have looked at sending the other letter --
RHEINBERG: Yes.
LADY JUSTICE THIRLWALL: -- doesn't include that report. Can you think of any reason why that report wasn't sent?
RHEINBERG: No. I -- I cannot recall the fact that it -- that anything was sent out. But so I am relying entirely on the -- the documentation that's been produced to me.
LADY JUSTICE THIRLWALL: Would there be a reason not to send it out --
RHEINBERG: Absolutely not.
LADY JUSTICE THIRLWALL: -- now that you have had a chance to see it?
RHEINBERG: No. We had a rule that everything would be sent out to a family if it was very sensitive information, such as a postmortem report, that might well be distressing, the instruction was that the report should be placed in a separate sealed envelope, clearly
marked with what it was, with the explanation given to the family that if they would prefer not to look at the document themselves, then they could send it or take it to their doctor or someone else to look at it on their behalf. So there would never be a reason for withholding information but if it was sensitive it would be dealt with in that sort of way.
LADY JUSTICE THIRLWALL: But there would be a paper trail for that, wouldn't there, if it was dealt with like that.
RHEINBERG: Yes, I would hope so.
LADY JUSTICE THIRLWALL: Yes, we would expect that to have happened.
RHEINBERG: What was a little bit peculiar in the office at that time was that we were operating on two different computer systems, neither of which talked to the other in typical bureaucratic way. So my office was working on one computer system, the officers were working on another.
LADY JUSTICE THIRLWALL: So does it follow from that that things got lost from time to time?
RHEINBERG: It was a possibility, yes.
LADY JUSTICE THIRLWALL: Do you think that might be a possibility here?
RHEINBERG: It is a possibility. But it's absolute speculation.
LADY JUSTICE THIRLWALL: But would you expect to have known what had been sent to the parents at the time, would that be on the file?
RHEINBERG: Yes, yes, I suppose so. The instruction would come from me and so I would give an instruction as to what was -- what was included. I had very good staff. They didn't often make mistakes.
LADY JUSTICE THIRLWALL: No and we have got the letter that was sent.
RHEINBERG: Yes, yes.
LADY JUSTICE THIRLWALL: Anyway. You presumably then thought nothing more about it --
RHEINBERG: No.
LADY JUSTICE THIRLWALL: -- at the Inquest. Does it follow from that that the Thematic Review wasn't in front of you at the Inquest?
RHEINBERG: Almost certainly it wasn't. But again I can, I can recall in fairly shady terms the Inquest but as to what was before me, I -- I really can't say.
LADY JUSTICE THIRLWALL: And we have got the -- that you have been taken through.
RHEINBERG: I think the Inquest took place in a Magistrates Court in Chester, again --
LADY JUSTICE THIRLWALL: I don't think we need -- I don't think anything turns on where --
RHEINBERG: I am just trying to reassure myself --
LADY JUSTICE THIRLWALL: -- it took place.
RHEINBERG: -- I am recollecting everything correctly.
LADY JUSTICE THIRLWALL: Thinking of the right one. Yes. Thank you. You were asked some questions just now about the meeting of 8 February, where I think you have --
RHEINBERG: Yes.
LADY JUSTICE THIRLWALL: -- got at least a legible or nearly legible copy of what was said?
RHEINBERG: Yes, yes.
LADY JUSTICE THIRLWALL: It was put to you and you agreed that Mr Cross records you as saying that the Trust had done the right thing. Can you remember anything about that?
RHEINBERG: Right, I -- sadly, I cannot remember the meeting at all. I certainly saw the note, the writing is very much better than my own. I had no reason to believe that Mr Cross wasn't accurately recording what was said.
LADY JUSTICE THIRLWALL: Recording.
RHEINBERG: It is just that I can't remember.
LADY JUSTICE THIRLWALL: No, all right. So I won't ask you what you meant by that. Then a few days after that, you had the meeting --
RHEINBERG: Yes.
LADY JUSTICE THIRLWALL: -- on 15 February. Now we are into 2017 by this stage.
RHEINBERG: Yes, yes.
LADY JUSTICE THIRLWALL: At that point, you have got a very detailed note.
RHEINBERG: Yes.
LADY JUSTICE THIRLWALL: You have explained how you kept your notes. I just wanted to refresh my memory because this is something that I may need to resolve in due course and this is the evidence from Mr Harvey --
RHEINBERG: Yes.
LADY JUSTICE THIRLWALL: -- who was being asked about the --
RHEINBERG: Yes.
LADY JUSTICE THIRLWALL: About the meeting itself. He was told that, it was put to him that: "There's nothing that said that puts centre front, does it, that there are concerns and concerns of a nurse deliberately harming a baby?" I should say that question was put on the basis of what your note said?
RHEINBERG: Right, yes.
LADY JUSTICE THIRLWALL: The response was: "I recall that either Mr Cross or I in passing the paediatricians' letter across to Mr Rheinberg explained the background to that letter and the paediatricians' concerns." He went on to say: "I am also aware that there is documentation within the Inquiry that confirms that part of the bundle that Mr Rheinberg received was actually the full RCPCH report which included reference to the paediatricians' concerns." So let's just unpick that a little bit. The last bit I think what's in the bundle in fact are those passages of the bundle of the RCPCH report that had been taken out and then reformatted and put into the bundle that you have; the redacted parts as we have been referring to them?
RHEINBERG: Yes.
LADY JUSTICE THIRLWALL: So we know that that document is in the bundle. What's your view about what's said there, that they explained the background to the letter and the paediatricians' concerns? Did they explain the paediatricians' concerns?
RHEINBERG: My recollection is that the focus of the
meeting was on the request that there should be a general inquiry/investigation carried out by the Coroners service. That seemed to be the -- the theme throughout the meeting with me explaining that I couldn't, couldn't meet their requirements. So yes, I knew that the, at that stage, that the Consultants had concerns.
LADY JUSTICE THIRLWALL: What was the nature of their concerns?
RHEINBERG: I think just in general that some -- something wasn't going right or that they just wanted more information. I think -- I saw Alan Moore's statement, where he had said he wondered whether he had asked rather pointedly: why do you want this investigation? Is it a matter of reputational concern or whatever? By that I suppose he meant: was it a question of trying to deflect blame and find some other factor that could exonerate --
LADY JUSTICE THIRLWALL: Well, yes, he gave us his evidence and explained that wasn't what he meant but anyway --
RHEINBERG: But I can't remember that being said but it does rather fit in with my recollection, that just about everything that was discussed at that meeting related to the request that the Coroner's office should carry out
some form of investigation.
LADY JUSTICE THIRLWALL: Should I infer from that that there was no reference to the document that's headed additional observations?
RHEINBERG: No, no, I don't remember any actual reference to the documents. I -- I think I was handed a bundle, I seem to remember quite a thick bundle, but the -- the meeting then followed on to discuss that particular theme.
LADY JUSTICE THIRLWALL: Yes, thank you. Those are all my questions, anybody want to ask anything else? No. Thank you very much indeed, Mr Rheinberg, you are free to go.
RHEINBERG: Yes, thank you, my Lady.
LADY JUSTICE THIRLWALL: You are free to go. Yes, absolutely, you are free to go?
RHEINBERG: Okay, thank you very much.
LADY JUSTICE THIRLWALL: So we will adjourn now and start again on.
MS LANGDALE: Tuesday at 10 am.
LADY JUSTICE THIRLWALL: -- Tuesday 10 o'clock. Thank you all very much.
(1.28 pm) (The Inquiry adjourned until 10.00 am on Tuesday, 10 December 2024)
Witness: Dr Susan Gilby: Former CEO (September 2018 – December 2022), CoCH
LADY JUSTICE THIRLWALL: Good morning. Ms Langdale.
MS LANGDALE: May I call Dr Gilby, please.
LADY JUSTICE THIRLWALL: Dr Gilby, would you like to come forward, please, and take the oath?
DR SUSAN GILBY (sworn)
Questions by MS LANGDALE
MS LANGDALE: Dr Gilby, you have prepared two statements for the Inquiry, the first dated 29 May 2024 and the second 14 January 2025. Can you confirm the contents are true and accurate as far as you're concerned?
GILBY: Yes, I can.
LANGDALE: And do you have them in front of you?
GILBY: I do. Thank you.
LANGDALE: You tell us in your statement that you were working at the Countess of Chester from 1 August 2018, can you briefly tell us your various roles and the date that you submitted your resignation?
GILBY: Do you mean my roles at the Countess of Chester?
LANGDALE: Yes, at the Countess of Chester.
GILBY: When I commenced working at the Countess of Chester on 1 August 2018 it was as the Executive Medical Director, the Deputy Chief Executive, and the Strategic Medical Director for the Cheshire West Integrated Care
Partnership. I fulfilled that role for a mere seven weeks until Mr Tony Chambers, who was the Chief Executive Officer, left the Trust, and I was asked to act up into the post of Chief Executive Officer, pending the appointment of a substantive replacement for Mr Chambers. I did that from September, I think September 18, thereabouts, 2018, until 1 April 2019, when I became the substantive -- I took up the post of substantive Chief Executive Officer and relinquished the post of Medical Director.
LANGDALE: And subsequent to that?
GILBY: Subsequent to that, I continued in that role until, well, I was employed in that role until 5 June 2023, but in practice, I relinquished, had to step down from the role on 2 December 2022 when I was unlawfully excluded from the organisation.
LANGDALE: We'll come to that briefly soon enough.
GILBY: Thank you.
LANGDALE: You also provided the Inquiry with your CV. Can I ask you about some of your earlier appointments and your qualifications?
GILBY: Yes.
LANGDALE: So, firstly, your qualifications.
GILBY: Well, my medical qualifications are: I studied medicine
at the University of Manchester and achieved Bachelor of Medicine and Bachelor of Surgery in 1992. I then went on to -- I'd studied and practised in a number of specialties. In those days it was possible to try out specialties in -- at a junior level before deciding on a final commitment, and I chose to train as a consultant in critical care. In those days, you also had to train in anaesthesia so I became a Fellow of the Royal College of Anaesthesia, and later, a Fellow of the Faculty of Intensive Care Medicine and that led to, after a long period of time training, to becoming a consultant with specialist accreditation in critical care and anaesthesia in 2005, and I specialised at that time in cardiothoracic anaesthesia and intensive care.
LANGDALE: And you moved into leadership roles, didn't you; by about 2012 you were clinical lead for theatre and critical care new build projects?
GILBY: Yes, that's right. My initial roles in leadership were very much in education and leading junior medical staff. So when I was a consultant at the Liverpool Heart and Chest Hospital, I think only three months after taking up my post, I became the college tutor for training in anaesthesia there. After the birth of my third child, when he was around two years old, I decided to move to
a hospital more locally to me, and I went to Mid Cheshire Trust. When I got to Mid Cheshire Trust I found that there were lots of issues with professional leadership and professional standards, and also with best practice in terms of patient safety and outcomes, and therefore took it upon myself to help to improve those things, and that led to being asked to take on the clinical director role for anaesthesia and critical care. And then, when the Trust was successful in getting funding for a new critical care unit and surgical theatres and assessment unit, they asked me to be the clinical lead for that programme.
LANGDALE: And you, between November 2013 and March 2015, were the Associate Medical Director, division of medicine and emergency care at Mid Cheshire?
GILBY: Yes.
LANGDALE: What was the culture like? The Inquiry is investigating culture in the NHS widely and specifically within the Countess, so how would you have described the culture there?
GILBY: I would say that the culture at Mid Cheshire Trust at that time was the most open and positive that I've seen in my career. It was in stark contrast to other experiences I've had. When I first raised concerns, I would put that at its lowest, sort of questioned the management of patients presenting with sepsis, for example, or the deteriorating patient, I found that the leadership of the Trust were very open to understanding what was best practice and how that different from what was happening in the Trust and looking to learn lessons from perhaps poor outcomes. There was very strong collaborative leadership and a very visible Executive team. I was invited, as a relatively junior consultant, to attend board meetings, to -- so that Non-Executive Directors could understand from the perceptive of the shop floor, if you like, how we could improve services and outcomes for patients. It was very patient focused, and there was an understanding that staff had to be listened to and included in decision-making and that was very much a day-to-day experience in that organisation.
LANGDALE: How does patient focus fit with targets? The Inquiry has heard some evidence that leaders in the NHS may be under pressure to deal with targets, and whether that impacts or not on being patient focused. What's your view about that?
GILBY: My view is that most targets are, with perhaps the exception of financial targets, seen in isolation, most targets are patient safety measures. And that is
particularly the case, particularly the case with the urgent and emergency care standard, which most people will know as the A&E wait target, which officially is a four-hour wait target but hasn't been achieved in the NHS for some time. And the reason for that is that focusing on that, achieving that target, is about patient focus, is because ultimately, if an ambulance is sitting outside an A&E department, unable to leave because there is a queue, and they are therefore unable to get to the undifferentiated patient in the community who may be lying on the floor having had a bad fall or a heart attack or a stroke, and there are time critical interventions that really improve the outcome for patients in that situation, and that's just one small example of how timeliness in treatment is a patient-safety issue. And it's the same with elective care. Whilst the consequences for a long wait for elective care may not be as physically consequential as a long wait for treatment for a heart attack or stroke, it does mean that patients are having a very poor experience, it's often psychologically distressing and symptoms will worsen as they endure that wait. I think it's not the targets in itself; it's more
the way in which the targets are pursued that differs from one organisation to another. And it's the meaningful and honest reporting of how you're achieving those targets is also important. There's been quite a lot of work during the pandemic on how to risk stratify patients who are either on the elective or urgent waiting lists, and I think for the joint Royal Colleges, that's been an incredibly helpful piece of work for providers to acknowledge and adopt, because that patient focused. And I think that clinical leadership, in terms of the approach to targets, is definitely the way forward: As opposed to just looking at numbers, we're looking at people and those situations that they find themselves in.
LANGDALE: You moved on to be the full time Executive Medical Director at Wye Valley NHS Trust, that's between March 2015 and January 2017. How did you find it within that organisation?
GILBY: Well, that was an extremely challenged organisation. I was approached to apply for that role whilst I was -- after I'd undergone quite a long period of training for prospective Medical Directors, and I had no intentions of taking up a role that was so far away from home. However, my parents and other members of my family lived
in that area, and the CQC report was published which shows that the Trust was rated as "Inadequate", and particularly in areas which gave me great concern around patient safety. So I felt that having grown up in that area, it would be something worth doing to try to help them to turn that around. I went to the organisation and found, again, a very -- a group of colleagues who were very open to understanding how they'd found themselves in this position, but they were very culturally isolated. It serves the population of Herefordshire and East Powys, so geographically it is quite an isolated area but very good clinicians and very good managers had made lifestyle decisions to go and work there. Often, I found that they were people who could have worked in any organisation, including big teaching hospitals, but they chose for their own quality of life, and that of their family, to work there. But over time, they had become disconnected with the cultural changes and the practice changes within the NHS, and had become out of touch with what was best practice. I found that particularly the case in learning from mortality, for example. And in terms of governance and particularly quality governance, it was difficult for them to know what "good" looked like because they didn't have interactions with other organisations who were doing well. So I found a very open and willing workforce who absolutely embraced the changes that we needed to make. We did need to bring in quite a lot of external support to bring new ways of working and new governance and I think most of all to develop the sort of safety culture that I had seen at Mid Cheshire Trust and the examples I'd seen at Mid Cheshire had been incredibly useful in taking those to Wye Valley and turning around the safety culture and governance and professional standards in that organisation.
LANGDALE: Do you think that the safety culture and governance did strengthen in the periods you were there between 2015 to 2017?
GILBY: Oh, absolutely, yes. And I wouldn't have moved back to the north west had we not managed to achieve that. There was a further inspection by the CQC, which rated the Trust as "requires improvement"; they were moved out of special measures relatively quickly and there was a new structure put around the organisation which has helped them. I've followed the progress of the Trust quite closely since. It became part of a group which meant that they had connections with other organisations, which geographically were relatively
distant, but one of them, South Warwickshire Trust, led by Glen Burley, who is an extremely experienced Chief Executive Officer and his team, meant that they were able to continue to develop and improve practice in governance and leadership and leaders had others to whom they could turn whom were more experienced who would help them in their development and that was a very positive outcome for that Trust, and I believe it continues to this day.
LANGDALE: And it presumably takes more than one or two leaders, doesn't it, to influence and make that change? How do you think a culture can change in a hospital? What are the key planks to achieve that?
GILBY: I think it's a mistake to feel that you can go in to an organisation and make an intervention to change the culture or improve the culture. First of all, you have to understand the -- where the current cultural views and behaviours have stemmed from and they were different in different organisations. As I said I think at Wye Valley it stemmed most only from the fact that they were geographically and culturally isolated, and so opening the whole workforce's eyes to the possibilities of how to improve outcomes for patients, and also the experience of working in the organisation was key. So lots of
listening events, lots of presentations, both from internal and external individuals and bodies. I think also, celebrating and rewarding people who were brave enough to stand up and say, "An incident happened in my practice and I want you all to know about it", because it could happen in you similar way in your practice, and there's lots of shared learning that we can have here. There are many -- I mean, an incident in maternity can -- learning from that can be useful for a whole organisation because a similar type of incident around, particularly human factors, could happen in, say, orthopaedics or ophthalmology. People were working in silos and bringing them together to learn and share their experiences was probably the most effective first step. And then listening to people in terms of how they want to develop what their motivations are for the roles they're in, and what their fears are as well is also very important. The role of the leader in that is to engender trust in order to make them feel safe and to speak up when something has gone wrong, and we put a huge amount of work into that safety culture at Wye Valley. We got to the point where people had been afraid to speak up, it hadn't been a natural thing to do, not that anybody -- I had any evidence of people suffering
detriment as a result of that; it just wasn't a natural part of the ways of working there. We got to the point where they were coming to a weekly meeting in droves and somebody, often a very junior member of staff, would stand up in front of senior clinicians, managers, Executives, and would maybe describe a drug error that had happened in their practice and what they'd learnt from it. They would be supported by a senior manager and an Executive. I would usually run the presentation, and then as a collective we would discuss how this might happen in a different way and in different parts of the organisation. And for those who weren't able to attend, we would -- within 24 hours, we committed to sharing a written account of the narrative, again with some additional, we called them "safety bites", pieces of information that people might find helpful in their practice, and that just grew and grew to the point where we ran out of space to hold these events. I did actually try to do this at the Countess and successfully did it also at Wirral University Hospitals --
LANGDALE: Just pausing there, so before we move to the Countess, that was your next role, wasn't it, Wirral University Teaching Hospitals?
GILBY: Yes.
LANGDALE: Executive Medical Director, January 2017 to July 2018. And again, as a snapshot, what did you find there with the culture?
GILBY: I found that quite a challenging organisation. I didn't perhaps do the levels of due diligence that I would normally do but I had my youngest child at this point, well, he was eight when I went to Wye Valley and I was working away from home, and it wasn't ideal so when we came out of special measures at Wye Valley, this was the first Medical Director role that came up that would allow me to live at home during the week and I was successfully appointed. But even during the interview process, there was a stakeholder panel which consisted of consultants across different specialties in the organisation and I found their approach to discussion in the stakeholder panel to be very aggressive and it did make me question, when I was successful and offered the role, whether I actually wanted to go to that organisation but I felt that it was perhaps just a one-off. Unfortunately I did find that relationships were very tense there between Executives and the consultant body, in particular, but the standards of care were very high and I don't think people were as open as they had been in Wye Valley to learning. I felt
that they were very confident that what they were doing was excellent and that sharing mistakes was perhaps a risky thing to do, and it took some time, but even in that organisation they did eventually start to reap the benefits of sharing learning from incidents and issues. But it didn't feel like a collaborative organisation in the way that Mid Cheshire and Wye Valley had done.
LANGDALE: Moving to your first statement then now, please, at paragraph 10, you tell us, as you just have, in oral evidence that you were appointed as Chief Executive Officer in 2019. What were your duties and responsibilities in that role?
GILBY: Well, they are quite considerable. So first of all, to develop and to develop the strategy for the organisation in collaboration with partners across the system, stakeholders, patient groups, and the local authority, and then to deliver that strategy and to deliver the Trust's strategic objectives, obviously to appoint and lead the Executive team in the delivery of the Trust's objectives, to advise the board around working in the -- the integrated care systems that we were developing at the time so in working in those systems. As the accountable officer, to be responsible for the legal obligations of the Trust, including those of finance, those -- but the most important thing was to be
a visible, values-driven leader of the organisation in terms of the workforce. There were 5,500 employees at the time, many of whom were part-time, but a large workforce spread over two main sites.
LANGDALE: And who encouraged you to apply for that role, if you were encouraged to apply for it?
GILBY: I was. Sir Duncan Nichol and the other Non-Executive Directors of the board encouraged me to apply for the CEO role, but actually going back to my application for the Medical Director role, it was Sir Duncan who had approached me in March 2018 when Ian Harvey announced his intention to retire that summer. As you said I was working at Wirral Hospitals, Sir Duncan lived in the area that we served, had seen some of the work that I had done there, and was interested in my thoughts on the vacancy that was coming up. I was in the process for a bigger organisation at the time and wasn't terribly interested, I have to say, but he was quite persuasive and when it became apparent that there was a system role within this potential appointment, and the fact that it was -- it fitted very well with my geographical location and family commitments, I decided to look at it, and it was a very exciting opportunity. I applied and was appointed. The Deputy Chief Executive element of that was
something that I didn't think too closely about. It was quite common for the Medical Director to be a Deputy Chief Executive because it shows that there is a commitment to clinical leadership in the organisation. It was something of a shock to find myself having to therefore act up after only seven weeks in the role, and when Sir Duncan asked me to do so, I did say to him that I felt that my time in the organisation hadn't been long enough to act into the role, and I didn't feel confident that in such a challenged organisation, I would be able to deliver what they needed. However, it was pointed out to me that when you're the Deputy Chief Executive it is expected that you act up if that's what is required. But also, more importantly, Sir Duncan and the other Non-Executives gave me their full support and assurance that they would support me during this time. I expected it to be for potentially a matter of weeks until they found somebody perhaps more experienced. As it turned out, it was five months before the process for the substantive role was fully commenced, by which time I'd obviously had to do quite a lot in the role to move things forward. And I was encouraged at that point to apply almost having undergone a five-month assessment and interview process. So it was a difficult decision --
LANGDALE: Your employment was three weeks, wasn't it, that you started after Lucy Letby had been arrested?
GILBY: Yes.
LANGDALE: How did that impact? We'll go into some of the details later, but how did that impact the organisation and the role that you were taking on?
GILBY: The arrest took place when I was -- I think I was out of the country at the time. So in the -- the weeks in between the arrest and the -- my taking up the role, I didn't -- wasn't sighted on how this was being received, how this news was received in the organisation. But I did prepare myself to arrive and find colleagues reeling from this news. I know you'll go into the detail later, so there had been discussions leading up to this of what I might expect from Operation Hummingbird. What I found was not what I expected at all. It was almost a -- well, there were individuals who were shocked, but there was a denial that this meant that it needed to be taken really seriously. I don't know whether that's because people didn't understand that when an arrest is made, it's because the investigating officers have evidence that they wish to put to the person who has been arrested, and that's not something
that is done lightly. But it certainly seemed to me that even at that point, it was believed that nothing would come of this, and the focus continued to be on the people who had raised concerns. So that was a surprise.
LANGDALE: You resigned, you tell us at paragraph 16, midway through the Letby trial and you say it's an action you felt was forced upon you. If we can have, please, INQ0108901, page 2 [not found] and 3, this month, 12 February, the Employment Tribunal handed down its decision in relation to the proceedings you commenced, we don't need to go into the details of that here, but the judgment is a public judgment, but we do see at page 3, that: "The Regional Employment Judge found as a fact that there had been deletions of emails from the claimant's work email account without her knowledge." And it carries on at paragraph 6: "... common ground that a good deal of material one would expect to find in the claimant's HR file is missing, including appraisals from 2019 to 2022." I think it's right to say that they couldn't say which witnesses or who had deleted documents and emails, but that was found to be the case?
GILBY: Yes.
LANGDALE: Very briefly, what period of time, what documents were you unable to find or retrieve?
GILBY: Well, for a very long time, until this Inquiry enabled me to access -- well, order the Trust to enable me to access my emails and the copious numbers of files that were saved on my personal drive, I wasn't allowed to look at anything at all. So when I was looking for documents relevant to this Inquiry, I found that there were emails over periods of time which were entirely missing. So there were chunks of emails -- no emails at all, sorry. And as you can imagine how many emails a Chief Executive might get in a day, there were weeks and weeks of emails just not there. They also weren't in the deleted folders and there was nothing in the sent folders. For the period from two years prior to this, so in 2022, all of my emails had been deleted and were unretrievable. There were also many documents, including my own appraisals, which had been done by Sir Duncan and by Mrs Chris Hannah, his successor, and also by Mr Haythornthwaite, that were missing, and many documents that related to governance failings, the work that was done around the governance improvement and documents that had previously been in the ownership of Mr Harvey where I was unable to find them or retrieve
them in the files. In terms of the findings of Judge Franey, these documents and messages relate to matters to do with my own employment and the measures that the people involved in what they call Project Countess were undertaking from the moment that I raised concerns until I was excluded in 2022 to exit me from the Trust.
LANGDALE: You were subjected to detriment because you'd made a protected disclosure. Can you again, very briefly, what's the significance of a protected disclosure? What's your experience in that context, making one in the organisation at that time?
GILBY: My experience of making the protected disclosure was -- well, it was horrific, quite frankly. I was very careful to go through the proper channels and initially that seemed to me, having taken advice about how to deal with what I was experiencing, it seemed to me doing that through the appraisal process for Mr Haythornthwaite seemed to be the most appropriate and most positive way of addressing it. So when giving opportunity to give feedback for the appraisal, I shared confidentially with the senior independent director Roz Fallon, examples of what had been happening since Mr Haythornthwaite's arrival in the organisation, not only to me but to others, and I fully expected that that would form part of a discussion at his appraisal and hopefully would inform future development, reflection, and probably working together to resolve these issues, even though they didn't apply solely to myself. What actually happened was that when Ms Fallon made Mr Haythornthwaite aware that I had raised these -- and I am sure that she put it in at its lowest -- the behaviours increased in their intensity and ferocity, and others seemed to start to behave in a similar way, until we came to a meeting on 18 July 2022, where having taken advice from my mentor, Dame Angela Pedder, in how to deal with this issue, and the experience I'd had since raising it appropriately, there was -- I -- in a one-to-one meeting discussed with Mr Haythornthwaite, the fact that there was an internal and external perception that we were not getting on and not working well together, and I wanted to discuss it. Now, I knew that doing this was not without risk, but I didn't anticipate the aggression with which that invitation to discuss the issue was met and I was subjected to a very long, aggressive monologue about my personality, my approach to leadership, veiled threats and comments about what other people may or may not have said but not telling me exactly what they said or who
had said it, which I now understand to be gaslighting, although I didn't really know the meaning of that term. There was banging of the fist on the table and shaking of their -- his hand in my face -- his finger in my face. It was frightening, and distressing. And I really did everything I could to try to bring it to a close and get out of the room.
LANGDALE: Just pausing there on the question of appraisals which you've raised, please. When your Chief Executive, was it Sir Duncan Nichol and then the subsequent chair who did the appraisals for you?
GILBY: Yes.
LANGDALE: What else happens with an Executive apart from appraisal by the chair? Is it feedback from people that are working -- that you're leading, if you like, as well, what was it like for you when you were being appraised by Sir Duncan?
GILBY: Yes, the appraiser, which in my case was the chair, coordinates the appraisal but it's not simply an assessment done by that individual of your performance. It's very important to receive what's known as 360-degree feedback. So multiple people are asked to, in a structured way, and it was administered by the then HR director, Alyson Hall, to give feedback on aspects of your performance as well as to give, in a freehand way,
if you like, some advice about what you've done well, what you could do better. So there was a great deal of evidence gathered prior to the appraisal. Also as the Chief Executive, you have objectives to deliver in any given year, and they fall into different categories. They might be financial, they might be operational. Some of them would be cultural, and in this organisation, particularly in the first year, a lot of it was around developing strategies because the organisation didn't have any strategies when I arrived. So it, as well as going through how well or badly you'd achieved your objectives, it was also reflecting how colleagues at different -- in different roles in different departments and at different levels of seniority across the organisation and also partners and stakeholders in the local health and care system were invited to give feedback, and I think it's fair to say that there were some comments that were helpful in terms of my development, particularly around perhaps being -- delegating more was one of them, but overall the feedback that I had from stakeholders, colleagues, and some Non-Executive directors, was overwhelmingly positive and the appraisals were glowing.
LANGDALE: And this is with Sir Duncan, and they --
GILBY: And with Chris Hannah and also with Ian Haythornthwaite
weeks before it was decided that I needed to leave the organisation.
LANGDALE: So the Inquiry shouldn't get the impression that being appraised by Sir Duncan is just something between the Chief Executive and him, there was more information --
GILBY: Oh definitely not, no.
LANGDALE: -- that's gathered?
GILBY: Yes, in a way -- I've done many appraisals myself and it's helping the appraisee to reflect on what others have fed back is their observations about their performance and also the more -- the things that you can quantify more easily. There are measures of success, obviously, as well as measures of how well or badly you are doing in terms of leadership and that might be financial, it might be operational, it might be -- most importantly should be -- patient outcomes.
LANGDALE: You tell us in your statement that you had conversations with Mr Harvey and Mr Chambers prior to starting your role at the Trust, one with Mr Harvey as part of your induction into the Wirral University role.
GILBY: Yes.
LANGDALE: You met him in 2017. Can you tell us about those early conversations before you were working at the Trust with Mr Harvey and Mr Chambers, about the Trusts and encouraging you or not to apply to the Trust?
GILBY: Yes. I had taken up the role at Wirral Hospitals in January 17, and the Countess of Chester was our nearest District General Hospital. There were a lot of services in which the two organisations collaborated. And there was at the time a-- an informal, if you like, intention to bring the organisations closer together. So Mr Harvey was the first person that I reached out to in terms of Medical Directors in the Cheshire and Mersey system to go and see, and to get to know because we were hopefully going to be working closely together and I particularly wanted to talk to him about the services where we collaborated, and that included the vascular service and a few other services, but it didn't include neonates. Mr Harvey was very welcoming and open in his discussions, and we had a number of things in common that we were able to discuss and I felt that he was going to be a good colleague. I did, however, find it surprisingly -- surprising and a bit -- I was slightly taken aback that he started talking about the problem with neonates because I actually had no knowledge of it whatsoever at the time because I --
LANGDALE: So this is February 2017, you say?
GILBY: Yes.
LANGDALE: Carry on.
GILBY: I'd been working in the West Midlands and therefore I hadn't heard on the grapevine, or in any way, shape or form, that there was a police investigation in -- at the Countess. Actually, sorry, there wasn't a police investigation, that there had been unexpected and unexplained deaths in the neonatal unit, and that there had been greater numbers than would be expected. So I didn't know to what he was referring but he said, "This issue we've got with the paediatricians is how it started" and he went on to discuss how they had asked for more numbers in the consultant body in the department, that it had been not approved, it was unaffordable. But they had kept on making the point and stamping their feet, is how he put it, until they got what they wanted and, you know, they were the problem. So I left feeling that in the back of my mind, thinking: I wonder what that was about? But it wasn't until later that I discovered that he was referring to the concerns they had about the deaths and unexpected collapses on the neonatal unit, and his irritation at their persistence in that.
LANGDALE: What about Mr Chambers? You tell us at paragraph 31 in meetings with him prior to starting your new role, he shared he was planning to move on to a bigger
organisation at some time. Can you tell us about that?
GILBY: Yes, this was after I'd been appointed, so the interviews were in March, and I'd started on 1 April and we had several conversations in the intervening period. I do remember that this was an offsite meeting and he'd suggested that we met in a coffee shop in between the two hospitals where we were both working, and he told me that he was applying for a role in a hospital on the south coast in a big teaching hospital. I was quite taken aback. I hadn't even started in the role yet, and my new boss was telling me he might be leaving. He was quite confident that he would be leaving, and when you choose to apply to an organisation for a role such as Medical Director and Deputy CEO, it's important that you know who you're going to be working for, and at the time when I applied, I had felt that I would learn a great deal from the team that I would be joining, and in particular from Mr Chambers, because he had been CEO for six years at that point. So this was a concern, but I understood why at this point in his career he might want to move on, and I was grateful that he was choosing to be so open with me.
LANGDALE: You say at paragraph 45: "At the time that [you] joined, the Trust had
a solid reputation externally as an organisation which provided good medical care and attracted high calibre clinicians. It was a first wave Foundation Trust ..." So when did you expect and what were you relying on when you tell us that, that it had that reputation?
GILBY: Well, I had trained in the region. I, as you know, went to medical school in Manchester and I had worked clinically across the north west for many years and the Countess of Chester was known as a -- an organisation, you know, the best went to, in terms of consultants. A bit like Wye Valley in the sense that people would choose to go there rather than to a big teaching hospital, because they wanted the -- there's quite a different experience of working in a District General Hospital as opposed to a teaching hospital. Most of my experience prior to Mid Cheshire had been in teaching hospitals. So people were -- there was a lot of competition for consultant roles at the Trust, I have to say, I didn't know much about the other professions in the organisation, but certainly in the medical world people in the Trust would take leadership roles nationally in their respective Royal Colleges, at -- in education establishments, and they were often, I would say, punching above their weight in terms of the size of the organisation and the representation that it had across the health economy and even nationally. The president of my own college was at one point the consultant at the Heart and Chest -- sorry, not Heart and Chest -- the Countess of Chester. So I really, knowing it had been a first wave Foundation Trust and that the chair was a very eminent NHS leader who -- highly respected and had been the Chief Executive of the NHS as a whole, I was optimistic that having spent quite some time now in turnaround roles, that I was actually going to an organisation that was solid. This just the looking at the CQC report, it also, at first glance, would imply that it was a good organisation who were delivering good care. And whilst that was true within individual specialties, there were real issues that I didn't expect that I found when I got there. So I was expecting to go into a high performing organisation with a high performing team, and I was looking forward to not doing that turnaround role, which I'd been doing for quite a number of years by that point.
LANGDALE: You mentioned the CQC reports. Can we go perhaps now to have look at the relevant ones in the period. INQ0014183, page 1 is the report arising from the
inspection in 2018, and the report in May 2019 and we see a services care in "Good"? Sorry, if we can go to an earlier one, not that one. Can we go to INQ0002649, page 1. This is one from the visit in 2016, and we see there overall rating for the hospital "Requires Improvement". "Good" for various services apart from end-of-life care. If we go to page 2, for leadership and management, recording there: "The hospital was led and managed by an accessible and visible Executive team. The team were well known to staff, visited most wards and departments regularly, responded to issues that staff raised. However some staff on surgical wards did not feel they were as engaged with board members." It continues: "There was clear leadership and communication in services at a local level, senior managers were visible, approachable, and staff were supported in the workplace. Staff achievements were recognised both informally and through staff recognition awards." Over the page, page 4, medical staffing: "Medical treatment delivered by a skilled and committed medical staff, information received showed that medical staffing was generally sufficient at the
time of the inspection. Shortage of paediatric consultants was recorded on the Divisional Risk Register on 21st October 15 however approval had been obtained to increase medical staffing and the number of palliative care consultants was below the recommended staffing levels." Looking at the CQC report there, the reflections or the summary of the leadership, before I take you to the next one, is fairly positive, isn't it?
GILBY: Yes, it is, and I would agree with quite a bit of what is written there, although it is obviously high level. The leaders at Executive level certainly were visible in the organisation, and people did know who they were, which is -- you know, that's absolutely essential. But what -- so this was obviously two years before I applied for the role.
LANGDALE: Yes. We'll go to the one -- shall we have a look at the INQ0014183, page 1. This was an inspection visit 13 to 15 November 2018. So very shortly after you've arrived in the August. And the report 17 May 2019. And we see there that "Requires Improvement" in a number of categories, including on services safe. And we see at page 3: "Our rating of the Trust went down." Setting out why it was rated as "Requiring
Improvement". If we go to page 5, in terms of are the services well led, penultimate two paragraphs: "There was no clear strategic objective in place to lead the organisation. This meant that there was no robust and realistic strategy for achieving Trust priorities and developing good quality, sustainable care. "Staff did not always feel actively engaged or empowered. We received mixed comments from some staff groups in relation to the level of engagement and support they received ..." And over the page it reflects at page 6: "The Trust board had undergone changes in its representation including the Chief Executive and Medical Director. Changes in senior leadership such as the appointment of the interim Chief Executive and interim Medical Director had led to recognition that improvements were required. "Staff were positive about the support they received from their local departmental team leaders." So this is very early on, of course, in terms of your arrival. Does that sound about right, how it's been recognised there?
GILBY: Yes. I would say that perhaps they hadn't quite appreciated the breadth and depth of the issues. The inspectors, I had literally been in the acting Chief Executive role for five weeks because when I was asked to act up, I -- in the first few weeks I was actually out of the country on a pre-planned trip which I couldn't do anything about. So when the CQC arrived, I'd been, if you like, on the ground as the acting Chief Executive for five weeks. So their interview with me as the Chief Executive was very much a collaborative discussion, rather than challenging me about what I had or hadn't done in the organisation. We were sharing observations almost as much as them asking me questions and it was a very long discussion. I remember a particular area of discussion was governance. I don't think it comes out quite as clearly here as it could have done, that there was just a vacuum of governors in the organisation, from board -- from ward to board. And the same was true of performance and oversight. And it's hard for me to, having read the previous report, and thinking that's what I was coming into, what I found was more akin to what you see here, except that having come from an organisation which had been rated as inadequate by the CQC for safety in particular and other areas, what I found at the Countess
was actually more seriously concerning than what I found at Wye Valley, and it was hard to see how that had completely gone under the radar, and that if the report from 2016 was accurate, and I have reason to believe that it might not have been, that a great deal of deterioration had happened, both in terms of what you're reading here but also what I was seeing and hearing, and it was hard to understand how and why that had happened. I did feel both at this inspection and subsequently that perhaps there was a bit of an agenda in the terms of that the CQC were more open to finding negative things than perhaps they had been in 2016.
LANGDALE: Why was that, do you think?
GILBY: Well, it was after the Trust had -- it was after the police had arrested Letby, and I know that that came as a big shock to the NHS and presumably the regulators. And I would have expected them to look back at their own reviews of the organisation and their interactions from NHS -- well, it was NHS Improvement at the time -- their point of view, to see whether they had any inkling of the issues that were now being raised about the organisation and whether they had actually assessed their -- the levels of risk in the organisation correctly. So a lot of the discussion was about governance but
there was also quite a bit of discussion about some very practical issues around patient safety and also about reporting.
LANGDALE: We'll come to those.
GILBY: Okay.
LANGDALE: You set those out in your statement. Just completing the series of CQC statements, if I may -- reports, rather, INQ0014184, page 1, is the 2022 report, where services -- "Are services well led?" They're recorded as "Inadequate" if we look at page 1, the Trust "Requires Improvement". The only are it grants as "Good" was "Are services caring?" And if we go out to page 3 it sets out: the well-led provider rating was "Inadequate": "The Trust did not have suitable governance systems and processes to effectively manage patient referral to treating waiting times." If we go over the page, page 4. "Warning notices were served." "Needed to make significant improvements in the quality and safety of healthcare provided in maternity services." And then if we go to page 8, "Leadership". "Several new appointments to the board, and the plans the board had developed had not yet had time to
evidence their impact or sustainability. Not all senior leaders were visible or approachable in the organisation. Leaders not always fully sighted on risk within the Trust or acted upon it in a timely way." Then if we go to page 10 and "Culture". Take your time, please, and others might wish to, to read what's said about culture, and the NHS staff survey. So the results showed the Trust scored the lowest nationally for staff morale. That is 2022, so you've been there some time by then?
GILBY: Yes.
LANGDALE: So what's your view about that? I mean there's clearly no improvement, and on the face of it, it gets worse during your tenure on the face of that report. So what would you say about that?
GILBY: Well, a number of things. So first of all the CQC came to do this unannounced inspection when we were still in the thick of Covid. We had at the time 100 patients being treated for Covid in the hospital. That's many wards-worth of patients. They kept saying to us "We don't want to hear about the pandemic." Literally those words. They said it to a number of my Executive colleagues and to me during their interviews. Within two days of them arriving, one of the lead inspectors who should have been part of my interview, contracted Covid, and she'd been interviewing people in close proximity, and it was a very odd experience. So I think the most important line there is that the bold at the top, it says: "The Trust was working towards an open culture where patients, their families and staff could raise concerns without fear. However, this was not yet embedded." The issue was that previously, staff -- there wasn't an open culture, and staff couldn't raise concerns without fear. And during the pandemic, where we were -- in terms of inpatient care, and numbers of beds occupied, and the proportion of those beds, we were amongst the hardest hit in the country. We were the hardest hit outside of London and the fifth hardest hit in England overall. There are many ways of measuring the impact of Covid but I'm talking about how -- the proportion of your beds that have patients being treated for Covid as opposed to something else, and at times we had -- it was 70% plus. So eight, nine wards of patients. I was personally very visible as a leader, and that was -- all of this was examined in my recent Employment Tribunal.
LANGDALE: Oh don't worry, I'm not asking you specifics about you but --
GILBY: No, no.
LANGDALE: -- the business of changing a culture or improving it more widely --
GILBY: It was a really difficult place to -- I talked earlier about what do you do? You go and you listen to people. You don't try and improve the culture. There's a reference here to the reward and recognition scheme, and on the face of it, that looks really positive. But when you actually talked to people, they would say, "Oh this is all a stitch-up by HR. It's all the favourites, the usual people. Often the HR people will nominate each other or their friends". So there was even distrust about whether or not you took that at face value and I think you have to, about whether the review and recognition system was an open and transparent process. So when you're celebrating people -- trying to celebrate people for raising concerns, and they're not even trusting that you're celebrating the right people for doing well and achieved going above and beyond, the depth of the distrust is something that takes years and years to address.
LANGDALE: Looking at your statement, if you look at your statement dealing with what you found in terms of governance when you joined, you comment on a number of things. Firstly
at paragraph 48 you comment on the fact that: "The focus at the Trust for at least the previous nine or ten years appear to have been largely on finance but in a very short-term way." So can you elaborate on that, please? Are you saying finance rather than patient safety? Or should it be the same or what?
GILBY: I think patients were -- had become lost in the organisation. They were -- there were lots of words said about the importance of the people that we serve, the importance of our staff, the importance of patients, but if you looked at the actions that were taken and the priorities of the board, and the priorities that were given to the divisional divisions and their services, they were all about efficiency, which is a euphemism for, in their experience, rather than what I believe it to be, in cost cutting. So every year, there would be a financial target for each service and division and for the Trust overall, and the way that that was being delivered was in salami-slicing the organisation to the point where you had very overworked staff, even at a quite junior administrative level, who were doing the jobs of multiple people. And you had senior managers who weren't able to be true leaders because they were acting
down doing roles that had -- the people who should be doing those had been stripped out of the organisation to reduce costs. And whilst the focus was on all of that, there was also investment in very expensive technologies which were aimed at improving productivity rather than patient outcomes, or certainly the way in which they were being used, it seemed that that was the priority.
LANGDALE: You say it was a new electronic patient record platform that was being introduced?
GILBY: Yes, it was -- the thing I'm referring to is really the operational flow management tool, which is a way of tracking the movements of staff and patients through the -- flowing through the organisation. And there was a very significant investment made into that system, but there was a £500,000 annual fee being paid which the board didn't seem to be sighted on. So there was a disconnect between what was happening at service level in terms of the cost cutting and the failure to invest in, for example, the right levels of staff in theatres or on the wards, or in the maternity unit, and actually, there are things that very significant things that should have happened in the maternity unit that didn't happen, in terms of investment. And yet, big investments being made in large electronic platforms, without getting the basics right that the board did not seem to be fully sighted on, in terms of what the implications were for the organisation.
LANGDALE: And you say there was little performance oversight, divisional leaders seemed to be working almost autonomously?
GILBY: Yes, something I would be used to, and I've seen in every other organisation, would be a performance and oversight framework, which is about how you support your leaders of services and divisions, and I'm not just talking about clinical services. I mean people who were working across the organisation, how you would review their objectives, how they were delivering them and what the outcomes were, particularly for at the end of the day outcomes, and if they were failing in that regard, you would put in additional support. And those would be regular -- it would be an organic way of running the organisation, they would be regular meetings at different levels. But at the very least I would have expected there to be quarterly performance and oversight meetings with the large divisions. Once I'd been there for a couple of months and I didn't see any of these in the diary, I actually asked
at an Executive Directors' meeting: when and where do we have the divisional performance meetings? And there was an uncomfortable sort of shuffling in the room and one of the colleagues in the room said, "We don't talk about performance" and I said, "What do you mean, you don't talk about performance?" And they said, "It's not a word that we use in here. We talk about autonomy and creativity". And I think creativity is really important, and autonomy, if it has been earned and can be shown to be safe, is a very positive thing for a leader of a service or a division, or indeed of an organisation, but when your organisation is being shown to fail in the worst possible way, the fact that it's seen as a positive that you don't have close monitoring and support for those leaders is really alarming, and I think that was one of the -- I remember it so clearly because that was one of the more shocking moments, and there were many of them, in my first months at the Trust.
LANGDALE: You also say that: "The Trust did not have a corporate strategy." What did you mean by that?
GILBY: Well, an organisational strategy would describe what the purpose of the organisation was, what it was there to do, in order to serve the people, the population that
are living in its constituency. It would describe over a period of time, within the NHS it tends to be a five-year strategy of what services would grow and where you would collaborate, where you would invest, how you would innovate, how you would develop people, how you would improve standards. There would be supporting strategies such as people and organisational development, digital, infrastructure. There wasn't even a clinical services strategy which described: what specialties are we doing? How are we doing them? How are we going to grow and innovate them and what actually should we do less of that somebody else does better? And the first thing I looked for as the Medical Director -- and I had asked for it before I started -- was the clinical services strategy. And I was told there wasn't one and therefore was, you know, given that as one of my first objectives by Mr Chambers when I arrived. And as the Medical Director, really, that was the only strategy that I could drive forward, and it was only when I became acting Chief Executive that we started work on the other strategies. When I asked about, in terms of the board, about, you know, where is our strategy, what are our strategic objectives, how do you know that we are meeting them and
how do you know you're addressing the risks associated with them, if we don't have a strategy? I was told that the model hospital was the document that was used for strategy but the model hospital is not a strategic document. So in discussion with the board, and in particular with Sir Duncan, it was agreed that one of my objectives in year one was to develop and deliver an organisational strategy for the next five years, and we did do that. We did it in a very collaborative way, and the final event actually we had 130 stakeholders at a meeting. I remember it so clearly because it was the last time that we were all together before the pandemic was declared and lockdowns started, where we presented to multiple stakeholders from across the system, and including in North Wales, our proposals and asked for their input and feedback, having done that in a more informal way prior to that, and then that strategy document was delivered to and accepted at board in there shortly after that, in 2020.
LANGDALE: At paragraph 52 you also refer to recording your surprise that there was no Board Assurance Framework, and "Where do we look at it?", you say. So tell us what was the Board Assurance Framework? What did you not see that you expected to see?
GILBY: I think there was a Board Assurance Framework, it just didn't appear in the places that I would expect and wasn't used as a living document in the way that I would expect to manage risk. So the Board Assurance Framework would have been the highest level risks in the organisation in terms of addressing their strategic objectives, and this probably wouldn't mean much to patients, but if you put it to patients and families that this is really about how we are keeping you safe, giving you the best possible access and outcomes, and spending the Cheshire West and North Wales health pound to the best possible benefit of you as a community and protecting our staff, the importance of it becomes clear. So it's not a dry document. It's something that you need to examine on a regular basis. You have to have very clearly defined strategic objectives in terms of the things that I've just listed and others, and you need to understand what is the risk to delivering those and what you're doing to mitigate them, and how is that risk reducing or increasing over time. So in the notes that I made or in reference to the -- they called it QSPEC, it was the Quality Safety and Experience Committee, yes?
LANGDALE: Patient Experience?
GILBY: Patient, yes. So that was -- in most organisations would have been called a quality and safety committee, it's the subcommittee to the board, where I believe to be the most important subcommittee, where they talk about -- they look at data, and they receive reports surrounding patients and staff, safety and experience. And there are elements of the Board Assurance Framework which refer to patient safety, quality of services, and patient and staff experience. And so those elements of the BAF should have been on a regular basis been discussed at that committee, and the operational teams challenged by the Non-Executive Directors as to any improvements that needed to be made, how those were being made and how they were being monitored.
LANGDALE: In terms of the background of those Non-Executive Directors on QSPEC and generally looking at issues of quality, do you think it's helpful if they have medical or clinical backgrounds?
GILBY: I think it's essential that the -- some of the Non-Executive Directors on the Quality Committee have medical -- there should be at least one person with a medical background, and another with other clinical experience.
LANGDALE: You comment in your statement at paragraph 55 that:
"The Non-Executive Directors were, however, predominantly (and increasingly) from finance and business backgrounds ..." Was that your experience upon arrival? That's your understanding of the NEDs that you were working with?
GILBY: That's right. Yes, there was one who had a nursing and midwifery background for many years previously, that was Roz Fallon, but the rest were finance and business.
LANGDALE: Can we have on screen, please, INQ0099064-page 5. And it's an email from Mr Cross to yourself, Dr Gilby. "Hi Susan, please find attached governance framework overview for consideration. This a working document and I am happy to amend as you wish." This was sent to you 13 November, and then if we can see page 6 and page 7, if we can scroll slowly, please, so people have a chance to see the Governance Framework Overview sent to you. Then if we can go to the same INQ number, page 4, we see an email from you, 13 November: "Sending this via personal e-mail. I asked Stephen and Claire for a document which gave account of our governance framework including risk management framework and strategy. Over three weeks later this is what's been produced. I feel that it falls significantly below what I would expect to see and it concerns me that it
took so long to produce such an inadequate document. I intend to use this as a trigger to commence the review of board support which was previously discussed." Was that your understanding, that that had just been produced at your request? You deal with it later in your statement as well, that Claire Raggett had put this together at your request?
GILBY: Yes, one of the many things that I'd asked to see, having found myself suddenly in the acting Chief Executive role, was the Board Assurance Framework and the governance handbook and also the governance framework, and Claire Raggett was Stephen Cross's assistant so I asked Stephen directly and he said, "Oh can you liaise with Claire" so I repeatedly asked Claire. I was feeling a bit like a -- well, I didn't have the tools that I needed to lead the organisation in many ways, and this was one of the issues, and I repeatedly asked her, and then she produced what you've just shown, which is not a governance framework, and indeed, it even refers to the governance framework -- it actually refers to the governance framework as being one of the things that will support a governance framework. It's a nonsensical list of -- clearly hurriedly put together in a bit of a panic, and it was simply that the person who was responsible for governance in the organisation, who was the company secretary and was the Director for Corporate and Legal Affairs.
LANGDALE: Mr Cross?
GILBY: Yes, genuinely didn't understand what a governance framework was, or what a governance handbook should look like, or what the requirements of governance in a NHS Foundation Trust were. And I actually, until I saw this, didn't remember that I'd sent this to Sir Duncan's personal email and I don't know why I did that, except that I had found that questioning Mr Cross was not something that you do in the organisation. And I was actually warned that, "Be really careful about this, he's got very powerful friends". And I am not one, as perhaps you've seen from my Employment Tribunal judgment, who is going to take threats like that and therefore take a back step and not do the right thing. So I needed Duncan to be aware that this is a very serious concern and I know that this email was followed up with a discussion. But the worst thing for me was the fact that when I said to Claire Raggett "Look, this isn't a governance framework, you know, this is what" -- I described what a governance framework looked like and I said, "You must have it, you know, where is it?" And she burst into tears and she --
Claire is a very honest person and Claire said to me, "I've been told not to tell you that we don't have one". And another moment where the depth of the issues that you're going to have to deal with suddenly becomes deeper, and not any that, you then worry about the people around you who are reporting to individuals who are requiring them not to be honest and open with their new, albeit acting, Chief Executive. So what else are they being asked to do? Why was she so fearful? And the discussion that we had at board was very much along the lines of I would find it, and I think the board and the organisation would find it, helpful to have an independent review of our governance structures, systems and processes from ward to board.
LANGDALE: And you instructed Facere Melius to do that first governance review?
GILBY: That's right, yes.
LANGDALE: And you have been requesting something that also includes risk management. The Inquiry has seen evidence around the risk register and heard from the Head of Patient Safety and Risk Management. What's the purpose, first of all, of a risk register, and what is risk management in a hospital?
GILBY: The purpose of a risk register and what I was referring to in terms of the risk management sort of knowledge and
awareness in the organisation, wasn't around the Board Assurance Framework, it was -- because that is a risk register. It was more at service provision level. So the risk register there for the divisions would be, in terms of their objectives and their -- the services that they had to deliver, what was a risk to delivering that or to delivering it safely, for example? So you would describe the risk, so I'm trying to think of an example. So if you had not enough nursing staff in the emergency department, the risk would be that patients would not be seen and assessed in a timely way, for example, and there would be a whole other list of risks associated with that problem. And then there's a national scoring system for what is the likelihood of that happening, and what is the impact of it? So the impact could clearly be very serious indeed. So if it was catastrophic, that is, say, the death of a patient, that would be the most serious impact and it would receive a high scoring. And then you would factor those and you would quantify the risk. You would then describe what was currently happening in order to mitigate that risk. So for example, our establishment of nurses in the emergency department is not great enough to keep patients safe, and therefore we
are mitigating that by employing agency staff, and we are mitigating the risk to agency staff by doing X, Y and Z. It might be induction, it might be supervision, working alongside experienced staff, et cetera. You would then rescore the risk and say what is the mitigated risk, but you would be always working towards a fundamental solution of the problem that had led to the risk. So what I had done at Wye Valley where there was also a problem with identifying and managing and mitigating and even describing risk, was we had put together an Executive risk group. So every member of the Executive team, I think with the exception of the Chief Executive in that case, would sit with the divisions, and we would go through their risk registers and support them to identify the biggest risk. Have we really captured the issue here? Are we talking about the wrong thing? For example, you might talk about reputation instead of the real risk, which is harm. And it was a learning process. So we'd certainly had that at Mid Cheshire as well, and at Wirral. So at the Countess again having expected there to be quite a mature process for this, I wasn't seeing these risk meetings happening, and that's because they weren't. They were happening within the divisions but there was no -- again, no oversight. So we decided -- I'd recommended that we do an exercise where we sit down with every division and the lead Executive for risk was the Director of Nursing, that sat in that portfolio. So that would be at the time Alison Kelly and she would lead an exercise with the Executive team and the senior members of the division to go through their risk register line by line, over -- I mean at least half a day, sometimes more than that for the bigger divisions, to actually make sure that these risks were the problem was properly identified, the risk was properly characterised, it was properly scored, the mitigations were identified, and the progress of addressing that issue was being monitored. So in the very first of those meetings it became very obvious, quickly, that the Executive team didn't understand risk any more than the divisional leads did, and the sorts of things that I'd seen at Wye Valley, in terms of the inability to describe risk and to address it appropriately was in fact it was worse, what I was seeing was worse. And particularly because at Wye Valley the other Executives were -- I was the Medical Director, the other Executives were at least as able as I was, if not more so, to be able to support the divisions to learn and develop in this area. What I was
seeing around me from the Executive team was that they were as much in need of that learning and development as the divisions that they were leading and so initially perhaps inappropriately putting my sort of interjecting and having to sort of tactfully say, "I don't think we're on the right page here and can we take it back to the beginning", I eventually said, "I'm going to lead these exercises". And they were still ongoing when we got to the point of the pandemic, and unfortunately a lot of the work that we were doing in terms of improving governance was slowed down, if not completely halted for periods of time. But that was something I think that was really a fundamental issue in the organisation, that meant that the -- which means that the strategies that were being in the neonatal unit were not being seen at board level.
MS LANGDALE: That's the moment, my Lady, I think to pause for the morning break.
LADY JUSTICE THIRLWALL: Thank you very much. We'll take a break now until quarter to 12. So if we'd all be back by then, please.
(11.27 am)
(A short break)
(11.45 am)
MS LANGDALE: Dr Gilby, you mention at paragraph 79 of your statement that you were also made aware of issues in the human resources team and that was a matter of concern to you in your early time at the Trust. What was your concern about that?
GILBY: When I first started and had a short period of time as the Medical Director, I didn't see the human resources function around the responsibilities of the Medical Director and the medical workforce and medical training set up in a way that I had seen in other organisations. And then, when I became the Chief Executive acting into the role, going around the organisation and talking to colleagues in different departments and specialties and at different levels, HR support or lack of it, or HR support to that approach to their work was something that was frequently raised in almost every conversation. And the substantive director of HR, Sue Hodkinson, became quite unwell and she had to have a period of time off work. We had an interim director of HR, which was going to be initially for a period of about three months, and having looked at the structure of the portfolio, she felt that, you know, there were some probably improvements that could be made but they were for Sue Hodkinson to make when she returned to work, which we were fully expecting her to do.
So I invited Alyson Hall, who was the interim director, to do a sort of root and branch review of the HR structures and functions and processes, literally as a -- to see whether there were any recommendations or tools for improvement that Sue could use on her return, and also, for us to be able to report to the board if there was a need for improvement in funding or resources in other ways. So that process started, and then she came to me to say that both her and the person who was helping her with this process were having conversations with HR professionals who were raising very serious concerns about bullying and harassment within the HR division, and this was from -- not from Sue Hodkinson herself, there was no suggestion of that at all, it was from senior members of the HR team who reported directly to Sue. This was obviously really concerning, but people were speaking up, which was heartening, in a sense. And so we had to change the focus of the review to listening to these individuals and actually doing a full investigation into the concerns that they had raised, which resulted in a report which, my recollection is that it was a shocking indictment of the way in which these individuals, but also people within their portfolios, were behaving towards not only each other but towards partners in the business. So they would be supporting a particular specialty or division but the way in which they enacted their responsibilities was inappropriate in the extreme. And that had resulted in this way of working to be learned by non-HR professionals, which was why relatively junior, or relatively inexperienced -- I've used the word "junior" a few times and I don't mean that in a derogatory sense, people that were still in their roles and developing would learn behaviours that were unhealthy for them and their colleagues in the organisation.
LANGDALE: You say in your statement: "Human resources staff were feared in some cases rather than seen as a partner in delivering safe patient care. They were also seen as barriers to the official recruitment and on-boarding of staff. I also observed several times that when a member of staff had performance or behavioural issues in their role they'd be moved sideways around the organisation. This was especially the case in the nursing division."
GILBY: Yes.
LANGDALE: So in terms of performance management, which of course is a function of HR, and sometimes investigating and sometimes making findings --
GILBY: Yes.
LANGDALE: -- making decisions, are you suggesting there that those difficult decisions might have been avoided and were sideways moves, or what?
GILBY: Yes, on occasions they were avoided and sideways moves -- I've never seen sideways moves happen in the way they happened in the Countess and even when I was substantive Chief Executive, they would be happening without my knowledge. I would discover that -- and it was exclusively in the nursing portfolio at this point -- that a senior nurse in a particular department had been moved into a different department or into a non-patient-facing role because of concerns about their -- usually about their behaviour rather than their competence. It seemed that if there was a clinical practice or competence issue, that that would be dealt with appropriately, but if the issue was about behaviours or competence within a managerial or leadership role, that wasn't addressed, and so there were quite a number of these moves had been made historically, and as a result of that, there were individuals across the organisation increasing in numbers who everybody was concerned about because of their not necessarily exhibiting the right values, but also, because they were put into a role that
they weren't trained to do and weren't happy doing, and there was therefore a lot of harm and, you know, discomfort to the individuals concerned.
LANGDALE: We know of course in the context of the Inquiry that Letby was placed in the risk and governance team in 2016, and remained there until her arrest in 2018. In your experience of other cases, were these short-term, sideways moves, or was there anything that was lengthy? That was clearly a lengthy period but did you see if that arose --
GILBY: They were always long term moves. I don't think I ever saw anybody moved into a role like into risk and governance or patient safety or education, and then moved back to their initial role.
LANGDALE: Was the transparency around it -- I don't want to know about any individual cases -- but would there be transparency around why this nurse might have been having a clinical facing role and then moved into something administrative if that happened or if --
GILBY: Absolutely none, no. It was -- and of course, that then results in, you know, rumours running rife around the organisation, often what has been said about the individual isn't accurate, which is why it's not fair, not just on patients and the service and colleagues, but also on the individuals, to treat them in that way. And
we have policies for performance management or conduct issues that are there for a reason, and they're to keep the individual safe as well as colleagues and patients in the organisation, and those policies were just not being followed. When I became aware of it, I would take steps to question and challenge that, and it was stopped. But it certainly -- it was not -- the reason it wasn't raised with me is because it was so endemic it didn't occur to anybody that this wasn't the right thing to do. And it seemed to stem partly from the values of the organisation at the time were safe, kind, effective, which on the face of it seem perfectly sensible values to have in a hospital. But it's how you interpret and live those values that's important. And the word "kind" was used a great deal by the Executive team that I first joined, in terms of iterating those values. So if somebody was found to be poorly performing or there were multiple concerns being raised about their behaviour, the kindness would be just to move them sideways and not to deal with it, whereas to me, that was a misinterpretation of that value on a number of levels. And "safe", "kind", "effective", was something that was repeated almost like a mantra everywhere, and I actively discouraged this, because it was becoming -- it was having a negative effect. It was almost becoming a toxic value in the organisation, and people were very cynical about it.
LANGDALE: Paragraph 93 of your statement. We touched upon risk earlier and assessment of risk. And you say: "At the time of [your] joining the Trust there was a reluctance to report incidents, for fear of the consequences ... [and] the reporting of 'low harm' and 'no harm' incidents was very low in comparison to peer hospitals ..."
GILBY: Yes.
LANGDALE: What's the importance of being able to discuss and report low harm and no harm? Is it to get the reflective culture you've been referring to earlier and the sharing of knowledge from there was events or why do you say it is so significant they didn't seem to be reporting those events?
GILBY: It is partly to have that reflection, and to -- for people to learn, you know, how to report incidents, and the benefits of doing so. But it's also -- almost like a canary in a mine. If you have multiple low and no harm incidents in a particular area or of a particular issue, then it gives you an indication of where you might need to review the service or the procedure, and have an intervention.
But more importantly, it's an indication of a really healthy safety culture. So what happened at the Countess was the first question would be: well, did anybody really come to harm here? Well, no. So I'm not going to mention it, because if I do -- and I wouldn't say this was universal, but it was more common than not, the staff would feel that if they did, not the Executive, but their immediate line management or perhaps the level above that, would be -- would not appreciate that in the spirit in which it was meant. It was: why are you reporting these incidents? It's making my service look bad, it makes me as a leader look bad. And it goes back to the behaviours of attitudes of HR and perhaps, you know, some of the Execs that they'd learned, which is managing people in an aggressive way as opposed to celebrating the person who has reported the most no-harm incidents. So it's been -- there is plenty of research and data that shows that the Trusts who have the highest 10, 20% reporting rates for low and no-harm incidents, tend to be those who are categorised as "Outstanding" organisations or "Good" organisations, particularly in the safety element of the CQC standards. But putting the CQC to one side, the outcomes for patients and the experience of staff tend to be the best in those
organisations where they report a lot of low harm and no harm.
LANGDALE: Paragraph 104 in your statement. You tell us that: "On 24 May 2018 Sir Duncan called me to discuss the neonatal situation, and asked for my help. He then sent me a list of questions that the consultant paediatricians had submitted to the Chief Executive Officer [Mr Chambers] followed by a draft response." The Inquiry has examined the paediatrician's questions and the response that went back ultimately, so we don't need to go back to that document. But can you just tell us what Sir Duncan Nichol said to you and the conversations you had with him about the breakdown in relationships between the paediatricians and the Executives.
GILBY: Before he sent me this list, and actually, I'd been appointed in the March, and it was in the -- in that interim period where people were starting to be open with me as they wouldn't have done as a candidate, about the relationship issues between the Executive team and the paediatricians.
LANGDALE: So you didn't have any clue about it when you were a candidate?
GILBY: No, the only thing I knew was what Ian Harvey had told me in January 2017.
LANGDALE: February 2017?
GILBY: Sorry, February 2017. So more than a year before I applied for the role, and it didn't really come up again, in terms of the relationship, I obviously knew about the issue by then. So one of my meetings with Tony Chambers, he discussed with me the problems that they were having with the paediatricians and Duncan was meeting with the paediatricians at the time to try to broker some sort of improvement in relations. I think everybody acknowledged that it's a potential patient safety issue for there to be conflict between or a totally broken relationship between the leadership of the organisation and specialty experts in one of the important specialties in the organisation. So by the time this list of questions was sent, I was aware, and they had discussed it with me. And Duncan was very, very concerned. He was visibly trying to broker peace, if you like, between the two groups, and I do find --
LANGDALE: What did you say about the draft? You were sent the draft from Mr Chambers?
GILBY: Yeah.
LANGDALE: And he asked you and Sir Duncan to read it or review it --
GILBY: Yes.
LANGDALE: -- and you say "I found the draft to be tone deaf".
GILBY: Yes, I think he was concerned that the questions weren't necessarily being answered and he was starting to question the approach that was being taken to the paediatricians, and now that I'd been appointed, I think that he felt, before this was sent, that he should run it by me. I don't know whether he discussed that with Tony in advance but I don't think that he did. When I read -- I read first of all the paediatricians' list of questions, and, you know, you could -- I'd never met them before that point, I didn't know their names. But you could see the anguish coming off the page, and yet the response that had been formulated read as though, with all due respect, it had been written by lawyers. That it was very defensive, it was dry, it didn't acknowledge their experience, and I felt that you could -- if you were trying to broker the peace that Duncan was describing his desire was, that this probably was going to be detrimental, and so I had a very -- I remember it was quite late at night, I had a very long conversation with Sir Duncan on the phone about what -- how it might be reframed. So the substance of the answers were not different;
it was the way in which it was being expressed in particular.
LANGDALE: And at that time you hadn't spoken in detail to Mr Chambers, Mr Harvey, or any of the paediatricians? It was just Sir Duncan --
GILBY: I'd never met the paediatricians. And I had spoken to Mr Harvey and Mr Chambers but only in very sort of high level terms. And it was mainly them expressing their frustration about the ongoing behaviours and about the reputation issues of the police investigation because this was prior to Letby's arrest, and they were fairly confident, I would say very confident in some cases that, you know, they've been investigating for X number of months, I'm sure they're going to tell us soon that it's all over and, you know, the problem is the paediatricians and their department. And that was the mantra I was given right up until the day I started.
LANGDALE: Did you, from Mr Chambers or Mr Harvey in those early stages before she was arrested or -- get the sense whether they thought the concerns of the paediatricians were genuine at that time, albeit wrong in their view, in terms of what the evidence led to, as far as they were concerned, but that they were being genuine in using them?
GILBY: Yes, I felt they did believe they were being genuine, but they were wrong. They were very dismissive of the paediatricians and on a number of occasions it was said to me that they were just looking for somebody to blame and they had -- I remember Tony on one meeting said -- well, he looked around the room and, you know, he physically pointed and he said, "And they said, well, we'll say it was her". And in fact ... so at this point I hadn't seen the Royal College review, I was told the Royal College review had not found any evidence of deliberate harm. I was told that there had been a detailed specialist review of the cases and that had not come up with any evidence of deliberate harm. I had no reason not to take any of this at face value at this point. And so did we have a group of paediatricians who were making something up? They didn't ever give me that impression; they just felt that the paediatricians were unable to accept that they weren't the best, and so when outcomes were poor, they were looking for somebody to blame. There was nothing at my disposal that enabled me to challenge that view at the time.
LANGDALE: Paragraph 145, you say you were surprised that Mr Harvey: "... told me that he had had no Maintaining High
Professional Standards ... cases in his six years as Medical Director."
GILBY: Yeah.
LANGDALE: Do you remember? What do you mean by that? Why was that surprising?
GILBY: Well, he was responsible for the registration and revalidation and training of hundreds of medical staff, and the notion that in six years, not one single doctor had any concerns raised around their practice or behaviours that required examination by the GMC or to go through an MHPS process, it seemed highly unusual. And I remember -- again I can visualise that conversation -- he was proud of that. I, on the other hand, had been a Medical Director, albeit in two different organisations, for a number of years and prior to that an associate Medical Director for several years and even as a clinical director for that, had had cases where it was necessary to use the policies around Maintaining High Professional Standards to address a doctor's practice, whether it was competence behaviour or professionalism. And I just found it very hard to believe that there were no concerns of that nature in the organisation for an entire six years.
LANGDALE: You set out in that paragraph what you say his parting words were after that conversation. What was that about?
GILBY: Well, it was our handover meeting. And it to be fair to Mr Harvey, it probably was quite an emotional couple of days for him. He'd been a consultant and then a Medical Director in the Trust for decades, and he was in his last hours in that organisation. So the handover process to me probably was, I would imagine, a very minor part of what was happening in his head that day. We sat in Meeting Room 1 in the Long House. He had an A4, a ringbinder with notes to hand over to me. I made handwritten contemporaneous notes which I believe you've seen --
LANGDALE: The Inquiry has seen all of your handwritten notes, yes.
GILBY: And he went through various specialties, the challenges in those specialties. There was very little, if anything, said about the neonatal department that -- we'd had that conversation previously. And then we stood up to go, and as we walked out the door, he's packing his things away and he said to me "You need to refer those paediatricians to the GMC". And I said, "Well, why haven't you?" And he jokingly said, "I don't want to" -- I can't remember the exact words now, but "I don't want to break my clean record" was effectively what he was saying.
And I can understand why, because I know, I've read the transcripts, that Mr Harvey denies that he said that. I can understand why he says he doesn't recall saying it, given the nature of that day and all of the other things he'd had to deal with around the tragedies on the neonatal unit and the paediatricians raising concerns, but to me, it was a very significant meeting, and it was a very shocking statement.
LANGDALE: Although you say you'd put your notes away at that point and --
GILBY: I had and was already at the door, yes.
LANGDALE: If it was said to you, would it be flippant? Could it have been a flippant remark?
GILBY: No, it wasn't a flippant remark.
LANGDALE: Not a serious one?
GILBY: No, he was serious. I mean, he said it in a -- I wouldn't say a jokey manner, it was sort of "Huh, and by the way", it was like that. So obviously I came away from not just that but also the briefings I had before I started thinking: it looks like one of my initial serious tasks as a Medical Director is to have a look at this for myself and I obviously have to meet with these paediatricians and I will make it a priority, because I was being given the impression that I had some problem doctors that needed dealing with, and I think we'd had
that discussion over a couple of months with Mr Chambers and also at this point with Mr Harvey.
LANGDALE: You met with Mr Chambers you say on the first day of the Trust and then you went on to meet Dr Brearey and Dr Jayaram. And again, we've got all your notes, all of the core participants have all of your notes, but summarising, if you can, your discussions with Mr Chambers around the issue of Letby's arrest and what was going to happen or what might not happen, what kind of discussions did you have him about that topic?
GILBY: They changed as time went on, as my first few weeks went on, because my view of things changed once I'd had a chance to speak to the paediatricians and look at documents. So initially, and this is particularly on day one, the same day, I think as the handover with Ian, first of all, Tony Chambers was very concerned about the breakdown in the relationship, and he emphasised the need to address that, to fix it, and he had already made some effort to identify a team of people who were professional mediators who might be able to help but he felt that it needed, the commissioning needed to be done by somebody who wasn't conflicted. And as just about every member of the board was conflicted, that meant that it needed to be me. He gave me the contact details of the person who
he'd been in touch with, and he told me that they would be expecting my call, and I did call them the same day, because I agreed with him that if there has been a complete breakdown of relations, then that is a patient safety issue as well as a staff experience and safety issue. So that was on the one hand wanting to fix the relationship with the paediatricians for all the right reasons, and --
LANGDALE: And we know for various reasons the mediation didn't go --
GILBY: No.
LANGDALE: Didn't take place in due course, did it?
GILBY: And on the other hand, the discussions about the very recent arrest, I found to be quite bizarre. So I would have expected and I did expect to come in, as I said earlier, to particularly an Executive team who were absolutely reeling from the fact that a person had been arrested for multiple -- in the investigation for multiple murders and attempted murders in their organisation under their watch. And what I found and what Tony wanted to discuss with me, was his concern that actually, he still believed, in spite of the arrest, that no deliberate harm had been caused. He kept repeating that there was no single cause found, and I said to him, "Well, it's not for you to find the cause. You have unexpected and unexplained collapses and deaths of patients, and that even one of those, is a cause of concern". And he just was very focused on the worry that the paediatricians may have caused this nurse harm, and that that his worry was a wrongful conviction. But he was still confident that even though she'd been arrested, that there would be no progress, that there wouldn't ultimately be a charge. And at first, I was -- I'd mostly listened. But that changed after I had spent time with Dr Brearey and Dr Jayaram, and also had gone through a large number of documents I found in Ian Harvey's old office.
LANGDALE: Shall we put appendix 1 up which sets out the documents in a box file that you found, and that's INQ0101076, page 53. It's your appendix 1. Here we are, here's the list. If we scroll down the list, you -- did you find this index? Who produced the index to the documents?
GILBY: I did.
LANGDALE: You did. So if we go down -- well, tell us, how did you find the documents? We know Mr Harvey texted you about them later, we can go to that, but how did you find them and what did you do when you found them?
GILBY: Well, having spoken to Dr Brearey, I then arranged to
meet with Dr Jayaram, who was on annual leave, actually, and came in to see me. And he asked that we didn't meet in the Executive suite. He wanted to meet in a different location, so that he didn't have to bump into Mr Chambers or any of the other Executives. So I agreed to meet him in what had been Mr Harvey's old office, so he hadn't moved when the others moved into a shared space. He had kept his -- the traditional Medical Director's office in the main hospital building. It was a really large room, and I got there early, and I was sitting at what had been his desk, and the room was otherwise completely empty of documents. And Ravi was a little bit late, and the desk was about this size, it had drawers, and I started opening them because officially this was my office but I wasn't intending to use it for my personal use. And then the very bottom drawer I opened, and unlike every other shelf and drawer in the room, it had a large box file. And on the side of the box file was written the letters "NNU" which I took to mean neonatal unit. And I thought: what? I mean, I just could not believe that there was a significant pile of documents relating to the neonatal left in an empty office in the main hospital. And this was something that might have been handed to me at the handover so I thought perhaps there's nothing important
in here. Opened it up only to find the list of printed out emails, the reports --
LANGDALE: Is this the order?
GILBY: No, that's not the order. The order is changed from the original because I gave it to the police, actually we went through it together. DCI Hughes and I went through it together. And he took it away and then gave back to the Trust the documents that they already had copies of.
LANGDALE: So you gave this index as we see here with all of the documents in it to the police?
GILBY: Yes.
LANGDALE: Because there's a number, for example, the letter from Tony Chambers to Lucy Letby, some of the handwritten notes of Mr Harvey that we haven't yet seen?
GILBY: Yes.
LANGDALE: But the police had all of these, as far as you're concerned?
GILBY: Yes, they did.
LANGDALE: And the summary to the board prepared by Sue Hodkinson. So that was all handed over. And if we can go please to INQ0101076, page 53. Sorry, that is the one we've on. If we go to INQ0099064, page 18. So this should be a text from Mr Harvey to you, Dr Gilby. 0099064, page 18. We see there you have his phone number, you're
messaging each other at various times, aren't you, Dr Gilby? "Hi Susan -- hope all okay. Just had a long chat with Tony. Rumour has it that I can expect to hear from the GMC -- alleged paeds have referred. I left a file of neonates documents for you locked in desk drawer in T block office. Please could you get Claire Raggett to copy them for future reference." So he's left them in a place, knows you're going to see them or should see them. Did you get the text before you'd seen the box or after --
GILBY: No, well after it.
LANGDALE: Okay. So you read the documents, do you --
GILBY: Yes.
LANGDALE: -- before you speak to Dr Brearey or Dr Jayaram or around the same time?
GILBY: No, I'd already spoken to Dr Brearey, so I'd already spent three hours with Dr Brearey -- I don't know if you want me to talk about that meeting but I spent three with Dr Brearey and then as a result of that, had arranged to meet with Dr Jayaram.
LANGDALE: What did you learn from talking to Dr Brearey that you didn't know about before? You've set out in detail what you've said about different babies, I don't need to ask you about that, but what did you ascertain in that meeting that you hadn't been aware of until you spoke with him?
GILBY: To be honest there was very little that he said that I'd been aware of previously. He very calmly took me through the timeline of events, but before starting that, he said that they had been raising concerns about -- and initially, it was about unexplained, unexpected clinical collapses and deaths in the unit, and they hadn't been listened to, and it hadn't been addressed appropriately. Now, that bit of it I had heard from the Executive team and Sir Duncan. So I was listening with an open mind to what I thought was going to be the other side of the story of -- of what I'd so far heard, which was it's a -- there's problems on the unit, problems with the individuals. But he started to tell me the pattern of events, and not just the clinical pattern, but what happened as a result of them raising concerns. And we didn't get very far into the conversation before it became obvious to me as a clinician, never mind as an Executive, that these just -- it was most unlikely that these were clinical explainable collapses. It didn't seem possible. And I think at one point I made an exclamation when he told me about a particular issue, and he said to me "You've been here for five minutes.
You get it. We've been trying to tell them for years". And so I went out and asked Claire Raggett to clear the afternoon. And so we spent three hours going through the timeline, both clinically and non-clinically, of everything that had happened. So I discovered clinical histories of patients who were doing well, who were expected to go home, who perhaps even the day they were due to go home, suddenly having a cardiorespiratory collapse and being refactored to resuscitation in a way that you would never expect with a child or especially with a baby. Perhaps it was helpful that my background is critical care and I have spent quite a bit of time in paediatric critical care and in surgical neonatal and critical care. But even had that not been the case, even with adults, on an intensive care unit you have a watchlist of patients who are at risk of deterioration or who are, you know, whose clinical condition is fragile, and if they deteriorate it's not like flicking a switch, it's a gradual worsening of their vital signs, if you like, if their oxygen saturations, their blood pressure, their heart rate change, either became too fast or too low, wrong rhythms, you see patterns in breathing changing, interventions take place to stop that from deteriorating.
What Dr Brearey was describing to me was something that I have never ever seen or heard of in my clinical practice, and just one of those for me would have been enough as a Medical Director or a director of nursing to absolutely want to get to the bottom of what has happened here. And to involve the parents right from the beginning, in terms of being open about their concern that we haven't really got a full -- we haven't got an explanation, we are going to get external help. Being open about the fact that we will learn everything we can about the death or collapse of your baby --
LANGDALE: Would you have asked any of the parents about their experience of the treatment of the baby or their interactions with the staff?
GILBY: Definitely, yes. When you're investigating an adverse event, whether or not you believe that there's been deliberate harm, it's the most important people. They are the most important people. And if it's possible, you should talk to the patient. Clearly in these cases that's not relevant, but you -- not only would you talk to the parents because they were there, but even had they not been there, you would want to sit down with them and explain the entirety of the baby's admission to the opportunity, what had gone well, what had not gone
well, what you were concerned about, what were their concerns? Do they have any concerns? And I'm sure in some cases it would be an entirely -- I'm not talking about these particular cases but generally, in medical practice, and I can actually think of a recent incident of this, that you would perhaps -- perhaps it would be a surprise to the parents that you were concerned or to the patient that you were concerned about a particular outcome, but it's very important to -- it's their health; it's their child's health and it's very important to have their input right from the beginning. And often, they've got valuable insights, but it's just -- it's their right to know what is happening with their care and what is happening, and to review the care afterwards. So one of the things I did learn from Dr Brearey is that the parents -- and he was quite distressed about this -- that the parents had not been offered candour in the way that he would normally want to use, you know, in a poor outcome. And he was very distressed about that. But we went through each collapse and each fatality one by one and also each incident of them going to or communicating with the Executive team about their concerns, and the final events that finally led to the police being called. And I confess that I did have in my mind questions about why were they not able just to go to the police themselves? Our A&E Consultants, for example, would call the police all the time, and they don't ask the Executive team if that's okay. But later, I went -- I learned that the interactions had been so threatening that they were fearful. So we had discussions about the clinical scenarios, and it was the first time I was hearing that so you asked me what did I learn? Well, I learnt clinical information that gave me great concern. Not just about the findings, but the nature of the collapses and as I said the unexpected nature of them, and I also learnt of the efforts they'd made to go through the right processes and use investigations to get to the bottom of it.
LANGDALE: You comment in your statement on the Freedom To Speak Up process, it's going back in your statement at paragraph 119. You say before you joined the Trust, the Trust had adopted a Freedom to Speak Up process such as had been recommended in 2016 by Sir Robert Francis. Then you continue at paragraph 120: "Somewhat unusually, the Freedom to Speak Up Guardians at the Trust were mainly Executive officers -- I recall that Sue Hodkinson (the Human Resources
Director) and Alison Kelly ... were amongst them." What was your experience or expectation, then, as to where the Freedom to Speak Up Guardians would come from in the Trust or any Trust?
GILBY: Well, my previous experience of the Freedom to Speak Up process had been at Wirral University Hospitals, where the Freedom to Speak Up officers were independent from the Executive and the board. There were Freedom to Speak Up champions on the board, both Non-Executive and Executive, but the people would -- staff were being able to go to someone who was completely independent from the leadership of the organisation to raise a Freedom to Speak Up concern, which makes sense because if you don't -- if you're not worried about raising the concern, you would do it through normal line management channels. So by definition, you're going through Freedom to Speak Up process, where you don't feel able to use the line management route. And ultimately, the line management route leads to the Executive and the board. So it was counter-intuitive that the people who were hearing Freedom to Speak Up concerns were the top of the line management tree. And there was a process already started, when I arrived, to recruit a Freedom to Speak Up Guardian who -- it would be their sole role in the organisation
on a part-time basis. And it was made very clear to me that the intention was that that would be one of the HR team who reported to Sue Hodkinson and her deputy, although we were interviewing several people but a decision had been made in advance of the interviews. Now --
LANGDALE: Sorry, can you say that again, the decision --
GILBY: The decision had been made in advance of the interviews who was going to be appointed. However, that didn't happen, because the interviews, I think, took place after I became acting Chief Executive and I chaired the interview panel, and we appointed an external person.
LANGDALE: Do you think this is peculiar to the NHS? You describe, for example, how Sir Duncan approached you and was encouraging you because of your reputation and here you are describing in another division not only interviews lined up but a decision --
GILBY: Yeah.
LANGDALE: -- or people already talking about who is the right person for the job. It doesn't reflect how it works or doesn't reflect how it should work generally, does it, in any case?
GILBY: No, I mean when it came to appointing both the Medical Director and the Chief Executive of the Trust, they were using independent recruitment consultancies, so
headhunters, and there were a number of other applicants and there were external people on the panels, very senior, including NHS England, etc. So there was the safeguards were there, but internal processes didn't seem to work that way.
LANGDALE: Is it the fear of dismissing people, do you think, or performance managing people, that people are moved to different jobs and sidelined to different jobs -- I'm not obviously talking about your job as a Medical Director but generally within an organisation if someone doesn't fit in one part of it, move them to another part, rather than take difficult decisions --
GILBY: Yeah.
LANGDALE: -- about --
GILBY: I mean, I think that's separate from the Freedom to Speak Up Guardian process which I think was more about control, which -- but if you're referring to moving people around the NHS or around an organisation, yes, it does seem to me -- and it is something that was attempted with me actually, at the end of my time at the Countess, that if someone seemed to be a problem for whatever reason within that particular organisation, then rather than have something that's going to look bad in the public domain, we will simply move them somewhere elsewhere they will hopefully have some time to apply for another job where there is a competitive process somewhere else but we'll give them that breathing space. Occasionally there is genuinely a role that that individual's skills and experience would be helpful for and it is a temporary role, and there's no employment rights associated with it. But I've seen -- and this isn't just in Chester or even just in the north west, I have seen time and again Executives moved from a provider organisation, a provider Trust, into a regulator or a think-tank or a system role, so NHS England or an ICB still being paid for by the provider Trust, and nobody is questioning it. And often it's not the fault of the individual. They've done nothing wrong, but they've just become a thorn in the side of either the organisation or the system, and this is something they are offered as a fait accompli: you know, move or we'll make life difficult for you. You may lose your job. And most people in that position are -- they're providing for families and they can't afford to challenge that behaviour. Or, they can't, in terms of their own personal resilience, go through what they know will be an incredibly difficult and protracted process to stand up for what's right. And when I've seen it happen to others, it's been
with that in mind that they had no choice. And there's been a reluctance, particularly from NHS England as it is now, to really listen to some individuals who are saying, "I'm raising a concern, I need your help to deal with it". So as I told you earlier that I had wanted to go through the proper channels to raise my concerns and I did that through the appraisal process and I did that through the formal grievance and bullying and harassment policies, and when that didn't work and when I was attacked further I went to NHS England -- sorry, I went to the lead governor, and when no action was taken then, I then went to NHS England at regional level. And I was given some assurance that I had their full support, they didn't want a change of regime, as they put it, a change of Chief Executive, that they would speak to the senior independent director and address the matters. When I returned from some leave, I was dismayed to find that actually they just took a step back and then some time later I was offered a role as yet undefined in NHS England, but the Trust required me to drop my concerns about bullying and harassment in the organisation and particularly by the chair but not exclusively so.
LANGDALE: You say in your statement at paragraph 128: "I believe that had the Freedom to Speak Up process
been properly implemented from the outset ..." In relation to the events we're dealing with?
GILBY: Yes.
LANGDALE: "... rather than being an adjunct to a human resources function that was a bullying hotspot, the paediatricians' concerns might have been objectively listened to sooner -- and they may have been more forceful about raising the issues because they might not have had the same fear about retribution."
GILBY: Yes.
LANGDALE: So do you think Freedom to Speak Up and those systems can be effective --
GILBY: Yes.
LANGDALE: -- if they're used properly?
GILBY: They can. The Freedom to Speak Up Guardian, if you like, it's a different term in different places, would effectively act as their advocate. The Freedom to Speak Up Guardian should have direct access to the Chief Executive and if there is an issue with the Chief Executive, to the chair and, you know, further to the board, if there are issues with the chair. But the paediatricians didn't have that independent voice, making sure that the proper listening was being done and the proper examination of their concerns, and more importantly, perhaps, that they weren't suffering
detriment as a result of having raised those concerns. They may have been wrong, but they had the right to be listened to and for their concerns to be properly investigated, and they were raising the most serious concerns you could ever have, which is unexpected and unexplained deaths and collapses of babies in an environment where they should be at their safest. It's hard to understand why that wasn't taken as seriously as it might have been.
LANGDALE: You set out at paragraphs 189 onwards you had a meeting with Dr Jayaram, and you say he told you of his frustration regarding the fact that the paediatricians hadn't been allowed to contribute to the terms of reference of the Royal College review. Can you remember that meeting and what he said about that?
GILBY: Yes. Again, this was a very long meeting with Dr Jayaram on the same day that I'd found the documents and shortly after I'd met with Dr Brearey. And he spoke less about the clinical scenarios, because he was aware that I already had been briefed on that by Dr Brearey, and more about the various investigations and processes that went on around their -- the concerns that they had raised. So I had been told that the Royal College of Paediatricians review -- of Paediatrics and Child Health review had excluded any possibility of deliberate harm, but I had a glance through that paper before meeting with Dr Jayaram, and it was clear that it was at the Invited Service Review, which is not a review of the clinical cases. So I raised that with Dr Jayaram, and he -- and I said, you know, why didn't they look at it? And he said, "We were not allowed to contribute to the Terms of Reference, even at an early stage. It was drawn up solely by the Medical Director without any reference to our specialty, knowledge, or expertise, or the concerns that we had". And not only were they not sighted on the Terms of Reference, but when the report was delivered, they weren't allowed to review and give feedback on it in a meaningful way.
LANGDALE: The Inquiry has heard evidence, of course, from the RCPCH, Dr Hawdon, and seen all the documents you read in the box of documents read by Mr Harvey. When you had read them and you'd spoken with both of the paediatricians, you told us you had discussions then with Tony Chambers and Sir Duncan Nichol about your report, your views?
GILBY: Yes.
LANGDALE: And what you had learned through that process. But what
was Sir Duncan Nichol's reaction? First of all, what did you say to him you had learned from that process and what you thought about that situation and what was his response?
GILBY: I'd told Sir Duncan about my meeting with Dr Brearey and also with Dr Jayaram. I'd also told him that I'd had the opportunity to review their reports upon which the board was relying in terms of being assured that there was no evidence of deliberate harm, and I also told him that I had been taken through the timeline of events of the concerns raised by the paediatricians and who they'd been raised with, and what the response had been. And I had come to my conclusion that the board, and in particular the Executive team, had got this wrong, and I explained to him why. So I went through the clinical rationale, and also some of the evidence that I'd seen. I explained to him, and he seemed to be hearing it for the first time, the difference between a Royal College review of cases that might lead you to suspect or be satisfied that it hadn't -- there hadn't been deliberate harm, and therefore commission or not commission further forensic reviews, and a service review, which is what this was. And I also explained to him that at the time I didn't know that Dr Hawdon had written to Mr Harvey to say, "I can't do this review",
but what I had seen was her brief synopsis of each occasion and that in no way, shape or form was a full case review and the methodology and the conclusions, to me, did not give any assurance whatsoever. And Sir Duncan's reaction was, first of all he fully accepted what I was saying, which was in stark contrast to the same conversation that I had with Mr Chambers and actually I'd had the conversation with Mr Chambers out of respect first. And he -- I think almost the first thing he said to me is "I'm just horrified at the prospect that maybe some of these deaths or collapses could have been prevented if we'd taken action sooner". And I said to him that I didn't know, at that stage, whether that was the case or not, but it was absolutely imperative that we found out -- that we looked at ourselves and really independently assessed whether there was something that could have been -- could have done differently. I can talk about that -- what happened to that letter of claim. But he was very upset, actually, very visibly upset. And he asked me if I would tell what I just told to him to the rest of the Non-Executive Directors and he arranged for an urgent meeting in private with all of the Non-Executive Directors, and I was accompanied at that meeting by Dr Jameson, who was the chair of the
Medical Staff Committee. And the response that I had from the Non-Executive Directors without exception was the exact same response that I'd had from Sir Duncan: they were visibly upset, horrified, the very first words that were expressed were "We need to look at ourselves". It was a very, very difficult discussion. But there was no defensiveness at all, and it was just horror. But I also think there was -- there had been a lot of confusion and puzzlement. I think -- I don't think they had really understood everything that was being said and hadn't been sighted on the various reports in detail, hadn't had time to consider them. Had very much deferred to the medical expertise of the Medical Director, and I think they had a lot of pieces of the jigsaw that just weren't there and so my discussion with them kind of was starting to fill those gaps, and it was an awful dawning realisation.
LANGDALE: In terms of the medical expertise of the Medical Director, you say at paragraph 135 of your statement: "Ian described the Royal College of Paediatrics and Child Health review to me, saying that the Terms of Reference could have been better and didn't include a review of the cases. He told me that pathologists at Alder Hey Children's Hospital had discussed the cases and that an expert review by Dr Jane Hawdon had found all but two of the deaths explained. He said that the pathologists at Alder Hey had felt that they were all explained. He also told me that the Coroner Alan Moore had no concerns." And we see in your note that you do record all but two of the deaths explained. Again, did he tell you that in one meeting at one time? Was that your understanding about the level of assurance that he had on the topic?
GILBY: Yes, he told me that in one meeting, yes.
LANGDALE: In one meeting?
GILBY: Yes. It was before I started, but just before, so he hadn't given me the opportunity to read any of those reports. I didn't see them until after Ian had left.
LANGDALE: So you weren't able to say what you've said about Dr Jane Hawdon's report?
GILBY: No.
LANGDALE: Or even about the two deaths, if you like?
GILBY: No.
LANGDALE: So it was a one-way conversation, if you like, on the detail at that point?
GILBY: Yes, he was giving me the information rather than asking -- he certainly wasn't asking my opinion.
LANGDALE: In the meeting you mentioned a moment ago with the NEDs, Sir Duncan Nichol and Dr Jameson was there. You say: "Dr Jameson told those at the meeting that the Consultant paediatricians intended to present their experience to an Extraordinary Committee Meeting and they were asking for a vote of no confidence in the Chief Executive Officer." As far as you were aware, was that the first time the NEDs knew of that or was it the first time Sir Duncan as well?
GILBY: No, Sir Duncan knew about it much earlier. I don't know whether the other NEDs did. Sir Duncan may have briefed them privately, but it certainly -- I don't think that Dr Jameson knew whether they knew or not. So he was making it clear to them that that was potentially about to happen.
LANGDALE: You say at paragraph 254: "I recall Tony Chambers was made aware (presumably by Sir Duncan Nichol) of the impending request for a vote of no confidence. Tony asked me to do what I could to persuade the paediatricians against this."
GILBY: Yes, that's right.
LANGDALE: What was your response to that?
GILBY: Um ...
LANGDALE: You say "I did make efforts to do so", but what was your
response?
GILBY: Well, I had been told by the paediatricians that they had asked for an Extraordinary Medical Staff Committee Meeting with a view to describing what had happened to them when they'd raised concerns, and asking for a vote of no confidence. And I became aware that Tony knew about this, but they had planned it back in July, before I started, and the reason it was delayed until September was because they wanted as wide a -- as many of the medical staff to be present as possible so that they could all hear the story, because they were only going to tell it once, and they had to have Cheshire Police Authority's approval to do so. I remember sitting in Tony's office with him, and saying -- him saying to me: "I can't have a vote of no confidence. I can't have it. I've done nothing wrong," and we had the usual conversation about the -- his view of the situation in terms of the paediatricians and the way they behaved. And I actually said to him that I -- if he really believed he'd done nothing wrong, and I had no reason at that point to believe he had, I certainly didn't, and I don't to this day, believe that he was deliberately lying to hide the murder and attempted murder of babies on the unit. I don't think that for one moment. But
I said to him, "If you really feel that everything has been done that should have been done then you have a right to a voice as well. So why don't you go to the meeting and provide some balance and stand up for yourself?" And he said repeatedly "I can't have a vote of no confidence". And he meant even if -- or I took him to mean even if the vote of confidence is not passed. It was having that on his record seemed to be an absolute red line for him. I knew that he was having discussions with Sir Duncan but I wasn't party to them and it wouldn't have been appropriate for me to do so, but by this time I had the trust and confidence of the paediatricians and I was discussing with them the upcoming meeting more in terms of the content of the presentation and the liaising with the police. And they made it very clear to me that they were going to go ahead with that action, and nothing that I said to them, in terms of a dialogue, you know, perhaps with me in the room, would that help, that nothing was going to deter them from going through with that. So what then happened was I was told that Tony Chambers had decided to step down. We did speak briefly but mostly the conversation was with Sir Duncan, but Tony said, "Look, I need you to speak to them and tell them that I'm going to step down and I give you my permission to do that", and Duncan also gave me his blessing to do that. So I had another discussion shortly after that with the -- it wasn't just with Drs Brearey and Jayaram, most of the conversations were with the entire group of paediatricians who were involved. I think seven at the time. And I explained to them that it was going to be announced that Tony Chambers would be leaving the organisation. He would be doing so before the meeting, and therefore, you know, they -- the vote of no confidence would be null and void. And as a result of -- and Dr Jameson had the same conversation. And as a result of that, they decided not to ask for the vote of no confidence. I think they were mostly concerned to find out whether other teams or other individuals that had similar experience in raising concerns and being -- and suffering detriment as a result.
LANGDALE: And you tell us it's Dr Gibbs who gave the clear and calm presentation?
GILBY: Yes.
LANGDALE: And other paediatricians commented about their individual experiences?
GILBY: Yes, Dr Gibbs delivered a presentation supported by PowerPoint, and then one by one, each paediatrician stood up and talked about their personal experience of different aspects of the events of the previous two or three years, and I remember, and this was the case with my discussions with him as well, that Dr Jayaram focused quite a lot, if not entirely, on the grievance process, and the trauma of having to deliver an apology to Letby and having to sit in a room with a mediator and Letby. And others had had similar and difficult experiences which were personal to them, which they described.
LANGDALE: During the course of your first year as Chief Executive Officer you tell us at paragraph 263 that three Executives, Lorraine Burnett, Sue Hodkinson and Stephen Cross, left the organisation, as of course did Mr Harvey and Mr Chambers. Ms Kelly remained, of course, and you said she'd proved a really important asset during the Covid pandemic; is that right?
GILBY: Yes, in terms of her visible leadership and support for the nursing staff who were going through a terrible experience, and as everybody will appreciate, very hands-on, and in that respect, she was, you know, consistently strong throughout my time working with her. Where she wasn't as strong was perhaps in the sort
of more the issues in her portfolio around quality governance, leadership, HR, that sort of thing, and in strategy. But she was a very visible and caring leader to the nursing team.
LANGDALE: You say at paragraph 265 -- well, how much did you discuss the events that this Inquiry is interested in with Ms Kelly and what was her response to your views about them?
GILBY: We discussed it at length on numerous occasions, and at particular -- you know, there were particular events. So further arrests of Letby, when Letby was charged, and when some of the findings from the report that I commissioned were being made available to me, but very early on, I discussed with her the findings of -- that my discussions with Drs Brearey and Jayaram and the other paediatricians and also with the documents that I'd had the opportunity to review, and even we discussed some of the clinical scenarios, because Alison also had an experience of critical care nursing and she agreed with me that patients don't just suddenly go from doing well to suddenly dying. And they certainly don't do that in the numbers that we were looking at. So there was never any -- the approach that I found from -- certainly from Tony at the time that we were working together, which was this will be nothing, it
will be the paediatrician's fault, was once the arrest had taken place, I don't believe that Alison had that view. But what she was insistent about was that she had no knowledge of any of these concerns throughout 2015 and well into 2016, and the meetings that I was being told that she'd been chairing, even, she had no recollection of it, and she hadn't been there. And Duncan also was of the view that that was probably the case: that most of the events centred around Ian Harvey, Stephen Cross and Mr Chambers, and that he had a lot of confidence in Alison Kelly. So it wasn't until -- I felt it was really important that we had an independent sort of verification of this, rather than me saying to her, "Well, you know, I've been told that you were chairing the incident panel in July '15, and many other instances, where you were made aware". I needed to know, and see the evidence, that that was the case before really challenging her with it in the sense that her position was completely untenable. And that didn't come until 2021, early 2021, because the Facere Melius investigation was delayed by the pandemic so it was brought to my attention that there was plenty of evidence to that effect, and for that reason, and others, Alison stepped down from her role in about March 2021.
LANGDALE: Paragraph 279, you tell us: "In addition to informing the board of my concerns regarding how the Trust had responded to increased mortality rates on the neonatal unit, I shared those concerns verbally in late 2018 and early 2019 with regional directors at NHS Improvement, NHS England, namely Bill McCarthy and David Levy and with Andrew Bibby at the Specialised Commissioning Unit. I also met with and fully briefed the local MPs ..." In terms of as a Chief Executive and mortality rates increasing, at any time in your career in any institution, who should you be communicating those increases to? Who would you expect to be talking to about them?
GILBY: You would expect to be talking to your commissioners, who at that time would have been the local CCG, the Clinical Commissioning Group. You would expect to be talking to the regulator. So at that time it would have been NHS England -- sorry, NHS Improvement, which then became NHS England. You would also expect to be talking to the CQC. So every organisation has a CQC relationship manager and --
LANGDALE: And why would you be talking to them? What are you supposed to do if you have the increase and you don't know what they mean anyway, so what are you supposed to
do with --
GILBY: Well, they would be having -- they would have oversight about what you were doing about it. Whether you were taking the right actions, whether you needed additional support, either from their own organisations or from other organisations, who they could broker that from, where they could broker that support.
LANGDALE: So for example, when you commissioned reports or reviews, in relation to governance or anything else, would you share that more widely than within the Trust?
GILBY: It depends what the review is. If it's a small review and not organisation-wide, it probably would be shared with the board, but a review of organisational governance, for example, which we commissioned in early 2019, would be shared with the CQC and with your relationship partners within the CCG and NHS England. So yes, it's also something that should be discussed at board, which is a meeting in public. So your responsibility, ultimately, is to the public that you serve and it's very important that they see that where there are concerns they're investigated, that the learning is identified, and that the implementation for improvements is being monitored. So board is really the place where you are accountable through the Non-Execs and the governors through the public.
LANGDALE: And in terms of learning from deaths generally, perhaps we can have on screen, please, INQ0086797, page 13. So if we can go back to page 13, so INQ0086797, page 13. This is a Countess of Chester document, Mortality Review responding to and learning from the death of patients. It appears from September 2017 a Learning From Deaths Group is established. If we look at page 14, INQ page 14, if we scroll down. "Duties and responsibilities": "On delegation of the Chief Executive, Medical Director is accountable to the board for ensuring compliance with this policy across the Trust and, as such, has responsibility for the Learning From Deaths agenda." It looks as though this document came into being in about 2019; is that right?
GILBY: Yes.
LANGDALE: When these meetings began?
GILBY: Yes.
LANGDALE: If we look at appendix 1, INQ0086797, page 21, you see the terms of reference for the Mortality Surveillance Group. Scroll down slowly, and then, when we see what the duties are, we see the membership. That's the group composition. We see meetings into 2018, meetings of the Learning From Deaths Group, and we see data being
analysed and looked at. Can you tell us about that development? Is that a development in your time?
GILBY: No, this was -- it was a national requirement, and the process and the governance around mortality has changed considerably since that time, but at the time, every Trust was expected to have a mortality governance framework of which a -- it was called different things in different places but which the Learning From Deaths Group would form a part. What I saw, and I'd sat in on these meetings, what I saw at the Countess was just not fit for purpose in any shape or form. I actually had a special interest in mortality governance and learning from deaths, which stemmed from my time at Mid Cheshire Trust. So when I became the Associate Medical Director there, the Trust was an outlier in terms of statistics associated with unexpected as opposed to expected, numbers of deaths, and the Medical Director there at the time had led a complete root and branch review, and improvement in how we approached learning from deaths, but also how we reviewed deaths, and we would go through every single set of notes of every single patient who died in that organisation, every week. And there were a group of very senior clinicians, including myself, who would do this every -- I think it was every Friday lunchtime, actually. We would sit for two hours and go through every set of notes, and you wouldn't just identify whether or not the patient's death was expected or unexpected. It may be that the death was inevitable and in many cases very elderly, very sick people, that was the case. In most cases. But you looked at the whole pathway of the patient, and identified areas for improvement in the care of the patient irrespective of whether that would contribute to the death of that patient or not, because the purpose of the learning is to improve care overall. So that whilst it might not have been a contributory factor in this patient's death, which was unavoidable, it might be something, in the future, that could be adversely -- that could adversely impact on another patient. And a report from that learning would go to the Quality Committee, would go to the clinical governance group, and ultimately to board in a really meaningful way, along with the reported data which was available to every Trust. But there is a lot behind the data and you have to understand how to interpret it. And you have to be looking in the right places. And what I found when I went to the Countess is that first of all, they weren't looking through the patients'
notes; they were just looking at the statistics, numbers, and only if a death had been reported as an incident was it examined properly at this time in 2018. The group, you can see the membership is basically with one exception, members of the board. Three members of the board, and an Associate Medical Director who actually was a Consultant obstetrician. So there was a -- there was limited knowledge about best practice in terms of mortality governance, and the reporting into QSPEC, as they called it, to my horror, actually, at the time, was verbal. So the Associate Medical Director would give a verbal report to the Quality Committee, who would then reassure the board that there were no issues around mortality but there was no data to be examined. There was no real identified learning, and it was really clear that they were focusing on the wrong things and didn't understand the data that was being presented to them in these learning from deaths meetings. So it was quite a challenge to -- again, it was a cultural challenge, to engage the clinical staff, to come together, to actually see the benefits of looking at every death in the organisation. This is before the current national requirement, which does enforce that, if you like.
But it was probably the least adequate approach to learning from deaths I've seen anywhere in my career, and given the history in this organisation at this point that was very disturbing, to say the least.
MS LANGDALE: My Lady, I see the time. It may be time to take a break now.
LADY JUSTICE THIRLWALL: Very well, thank you. I will take a break now and we'll start again at 2.00. (1.06 pm) (The Short Adjournment) (2.00 pm)
MS LANGDALE: Dr Gilby, before lunch you were giving evidence about the national guidance on Learning From Deaths, and the National Quality Board requirements for Foundation Trust boards, and how the hospital, when you arrived, were looking at mortality reviews and you give your comments about how you found that system. You also tell us at paragraph 232 of your statement, that you effectively reviewed Serious Incident and Mortality Panel records in respect of the neonatal deaths; is that right?
GILBY: Yes. From the meetings in July 2015.
LANGDALE: And 2015 and 2016? Or what were you looking at?
GILBY: No, I was looking at the -- well, in fact I attended the Serious Incident Panels for the time that Kelly was
still the Director of Nursing but I was looking at the meetings where the paediatricians had brought cases that they were concerned about.
LANGDALE: At so-called Neonatal Mortality Meetings, those meetings. The Inquiry has seen lots of evidence about meetings so I'm not asking you for the particulars but I just want to understand what you had a look at?
GILBY: No, the general conduct of the Serious Incident Panel, and whether that was going through the right processes, but also a bit like the issues with risk, the right questions weren't necessarily being asked to get to the root of a problem. So I was looking at how those were conducted and the methodology they were using but also the -- whether the attendance was appropriate and whether the clinicians who were actually involved in the cases had the opportunity to contribute.
LANGDALE: What's your understanding, and you may want to say or not say, in 2015/2016, about when deaths should be reported through the STEIS system, the neonatal deaths? In what circumstances?
GILBY: In 2015/16 -- I mean, it's changed a number of times but I expect that at that time you would expect an unexpected collapse and death would be reported in the STEIS system.
LANGDALE: Why do you say that?
GILBY: That was my understanding of the regulatory requirements at the time.
LANGDALE: You say in paragraph 236: "I had not seen any evidence of neonatal mortality and morbidity data being discussed at Trust governance meetings." When you say governance meetings, do you mean the patient safety meetings, QSPEC meetings?
GILBY: Yes.
LANGDALE: And the Trust's board itself?
GILBY: Yes, that's right.
LANGDALE: And would you have expected data to have gone to those meetings?
GILBY: Definitely, yes.
LANGDALE: And when you say "data", are you talking about realtime numbers that people on the wards are aware of or that they've accessed through a data viewer, or something? What way do you expect -- would you have expected numbers to have been discussed on a board meeting?
GILBY: It wouldn't just be numbers; it would also be even with low numbers, if they are unexpected, then that should be reported as an incident. So all Serious Incidents would -- there should be a report at every Quality Committee as to the progress being made to identify the learning and to monitor the implementation of it.
And in terms of data, there would be monthly escalated data on mortality in terms of both specialty and conditions, so for example, if it was in respiratory medicine as well as the overall mortality trend, as well as the actual in-month numbers, you would be able to analyse that further into conditions. So it might be pneumonia or Chronic Obstructive Airways Disease, et cetera. That's what I wasn't seeing. And when they were looking at the statistics, they were focusing on things that clearly weren't really issues. It's actually -- dealing with mortality, standardised mortality data is actually quite a complex thing for boards and Quality Committees to understand, and in my previous experience I'd found it was beneficial to do learning sessions for the board and other members of the subcommittees on how to interpret that data and in what ways it can be most meaningfully interrogated and presented. I'd done that in both of my previous two Trusts and it had been really effective and we'd also changed the way in which the data was reported from RAG ratings to data control process charting, which gives you an opportunity to see how trends change in time but also if you've got a step change, either positively or negatively, you can use process control data to see whether you have got an
actual problem that needs to be investigated or whether it's an in-month anomaly.
LANGDALE: And indeed, you say, in suggested lessons learned or recommendations, that boards should be mandated to use evidence-based reporting tools which enable them to spot variations in outcomes in realtime?
GILBY: Yes. So it's not uncommon for -- it doesn't necessarily need to relate to mortality, but for data to be presented as bar charts, RAG ratings, and to be compared with, say -- and this was the case at the Countess -- to be compared with the previous month when you actually don't know whether the previous month was part of a trend, whether it was an outlier or not.
LANGDALE: Did you have a lead reporter at the Countess of Chester when you were there, to report the data to MBRRACE?
GILBY: Yes.
LANGDALE: We know the data was reported because we saw the results of course two years later, but in terms of entering data around deaths, who would you expect to be doing that in the hospital when you were there?
GILBY: In terms of MBRRACE I would expect it to be the lead for the specialty, but for the hospital as a whole, there was an employed data analyst and business analyst, and -- but the ultimate responsibility lay with the Directors of Nursing and Medical Directors.
LANGDALE: At paragraph 277 of your statement, you refer to the circumstances of the police investigation, and you being the Chief Executive Officer when that was taking place. The Inquiry has heard evidence about Mr Cross allegedly saying that there would be blue and white tape everywhere if the police were called in, and it would be very difficult for the hospital. What was it like in fact, when the police came and did their investigation?
GILBY: When I arrived, the police investigation had been going on for well over a year. I think it was 15 months, and Letby had already been arrested. But my understanding of the experience in the Trust in the first year was that the police were very respectful and discreet in terms of the ongoing work of the Trust and not causing unnecessary distress to patients and families and other members of staff. Even to the extent that if you talked to people across other departments of the Trust there was very little knowledge of the investigation and its impact. It wasn't immediately obvious that the Trust was at the centre of a huge police investigation. My own experience was that all of the police officers that I dealt with and principally, that was Detective Chief Inspector Paul Hughes, but also with other senior officers, were extremely considerate about the services we were continuing to provide, and about our staff and their concerns for their support. They worked very much with me to try to make giving witness evidence easier for members of staff, and there was no disruption to services whatsoever, and there was certainly no visibility of the investigation as you walked around or approached the organisation.
LANGDALE: You provided a second statement, Dr Gilby, and you raised a number to matters there. Firstly at paragraph 4, you raise, as far as you're aware, how many people understood that there was going to be or could be a vote of no confidence against Mr Chambers. Would you like to tell us what your understanding is about how widely that was understood that that was an issue?
GILBY: It was very widely understood. And so I have read the transcript of Mr Chambers' evidence and I was very surprised to see that both he and Lyn Simpson said that they knew nothing of that. I had a number of discussions with Tony Chambers, as I said earlier, where he was at great pains to tell me how distressing the prospect of a vote of no confidence was to him, and how he couldn't have that on his record, irrespective of the outcome. I appreciate a great deal of time has lapsed since then but I remember those discussions very clearly and also there were -- members of the senior medical staff
were aware and had been aware since July 2018. Sir Duncan and other members of the board were aware. It was widely expected that that vote would go ahead right up until the point where Mr Chambers announced his resignation.
LANGDALE: You also at paragraph 6 tell us you'd: "... read the transcript of the evidence given to the Inquiry by Dr Brearey and noted he was challenged about the lack of apparent evidence to support some of what he was saying ..." And you wanted to bring to the Inquiry's attention a communication that you'd had. If we can have on screen, please, INQ0014610-page 1. An email from Dr Brearey to yourself, May 2019. I'll give people time to read that, if we can scroll up so it can be read. Dr Brearey is asking you: "Further to discussions we have had since August 2018, I am writing to confirm my request that you investigate emails to and from Mr Harvey that I have not been able to locate on my computer and Outlook account." "I asked for help from IM&T... " What does that mean?
GILBY: Information management and technology.
LANGDALE: And that's a department in the Trust, is it?
GILBY: Yes, it's basically the digital services.
LANGDALE: "... in August 2017 to help me find emails to and from Mr Harvey which would have supported statements I have made to the police and to the GMC ... confident the emails in question were stored at the time in folders on my Outlook account. IM&T could not find any emails sent to or from Ian Harvey before June 2016. Of particular note are emails sent in the weeks commencing the 8th and 15th February 2016." And he therefore asks if you could request a thorough investigation of the hospital server, and if necessary, interview relevant staff with a view to answering the following questions. And he lists the questions. So what was your response to that and what were the discussions on that topic that you'd had with Dr Brearey about his emails?
GILBY: Dr Brearey told me, prior to this, that he had concerns about a number of missing emails which he had been at pains to make sure were in files and were maintained, and I can understand why he would have done that. I discussed at the time with the then head of IT whether it was possible that these could have been deleted. But to be honest, I wasn't getting anywhere with that discussion. So I asked Claire Raggett to organise for all the accounts that Dr Brearey had had access to, and
to look into Mr Harvey's emails to see whether she could find these and to get the assistance of the IT team to do so, and in spite of those searches we were unable to locate any of the documents that he was concerned about. At the time, I felt there was really no more we could do. And I searched through the documents that I had myself of Ian Harvey but there were no relevant emails between him and Dr Brearey. However, much later, during the course of my own employment case against the Trust, as I've mentioned earlier, we discovered that files and emails had been selectively and comprehensively deleted, and were unretrievable. And evidence was given, and finding of fact was that that had been done deliberately and it wasn't possible to retrieve any of those documents. That there -- it reminded myself and my legal team of the email from Dr Brearey and the discussions that I'd had with him about this and I therefore wanted to make both Dr Brearey, which I did at the time, and also the Inquiry, aware of the fact that this had happened to me and therefore it was entirely plausible that it may have also happened to him.
LANGDALE: That can go down now, please. Thank you. Going back to your first statement, Dr Gilby, your lessons learned and suggested recommendations, you say at paragraph 298: "It is a false economy for a Trust to cut back on numbers employed, and systems deployed, to analyse healthcare outcomes and patient safety." Would you like to expand upon that?
GILBY: Yes. In the -- so the financial outturns are imposed upon an organisation by the regulator, which is now NHS England. And the focus of the organisation, because of the way of the top-down command and control nature of provision of healthcare currently is that the focus becomes delivering that financial outturn, and if the organisation is not patient focused, that can be done at the risk of harm to patients via dismantling systems and processes, and removing what are seen as dispensable staff in numbers, which -- who would have previously been investigating incidents, reporting incidents, supporting staff to do so, and making sure that the proper governance processes were being followed. So even if you have an appropriate policy and an appropriate structure of reporting, you need people to actually follow those policies, and to be enabled to do the work to be freed up to do the work. And what was happening at the Countess is that people who were in administrative roles were seen as dispensable, and so the object was to cut the payroll as much as possible to
achieve the desired financial outturn without really looking at the quality impact of those cuts, if you like. Every division was given their financial objective of the percentage of their outturn that they had to cut each year and they would definitely do so by cutting the payroll. But there comes a point where that becomes a danger to staff and also, most importantly, to patients.
LANGDALE: And in terms of, you say they're seen as admin roles, in terms of the support you'd had as a Medical Director or leading an organisation or Chief Executives, there is a fair deal of support needed, presumably?
GILBY: Yes.
LANGDALE: What about doctors? They see patients in the clinic. Are they expected to type their own letters, their own communications? Or did they have proper support? How did that work?
GILBY: It's really variable across Trusts but I would say that they had very little admin support, doctors in particular, and this was a real issue within the -- in the Women's and Children's Directorate, because they were under the umbrella of a much bigger directorate who had what they saw as bigger, more important concerns, such as the emergency department or at one point it was elective care. And therefore we found that very busy
clinicians would be having to deal with incident reporting with quality governance issues in general, almost in their own time. They would be given maybe four hours a week in which to do that, but the amount of work that was required for a department of that size was much greater than could be delivered in that time. And the technical staff, if you like, who would have supported them had they been there, had been stripped out and often replaced --
LANGDALE: When you say "technical stuff", does that mean, for example, risk management, risk team, people who should --
GILBY: Yes, people in that field whose full-time role was to support the quality governance work including risk management and incident reporting, mortality data and feeding into national databases such as MBRRACE or the joint registry in orthopaedics, that it was very common to go to a department, and this was particularly the case in Women's and Children's, and find that the support for the clinicians in those areas was minimal, and often the people who were in the roles were in a lower band. And this is something that in the organisation I saw across the board, really, that people would be paid at a lower pay scale than you would see in the neighbouring Trust.
So actually, the Countess of Chester was midway between Mid Cheshire Trust and the Wirral Trust so I'd worked in all three of them, and over a relatively short period of time, and I saw people being -- not being valued for the work that they were doing and the roles that they were delivering, because there seemed to be a lack of understanding in that every single person in that hospital contributed to patient outcomes and patient safety. Before the pandemic, I used to hold team meetings with non-clinical teams who would come along and we'd talk about their role and what they were doing in patient safety, and it was, if I remember the finance team saying, "Nobody has ever said to us before that we have anything to do with patient safety". And the same was true of everything, really, from catering to medical engineering. So people weren't being valued in the way that I've seen in other organisations. And yes, every organisation had to make financial efficiencies, but what I'd seen previously was a much greater degree of quality impact assessment before those were approved, whereas at the Countess the divisions seemed to be working autonomously without much oversight and the impact of those reductions in support staff was -- wasn't appreciated at board level.
LANGDALE: Paragraph 301. You say: "One manifestation of unacceptable bullying behaviour -- the making of ill-founded threats to report staff to their professional bodies (for example the General Medical Council or Nursing Midwifery Council) should be particularly discouraged." First of all, have you come across that being used in other work in other jobs -- you don't need to tell me where or how -- but have you come across it being used as a threat in circumstances where somebody experiences bullying and says they're being bullied, and they're told that they will be reported? Is that something you've encountered.
GILBY: Do you mean prior to the Countess?
LANGDALE: Yes.
GILBY: No. But I have come across people being afraid of that as a possibility, with no good reason for it. And I think that begs questions around the culture and the conduct of those regulatory bodies. Why do professional clinicians, whether it be nurses, midwives or doctors, see their professional regulator who are there to yes, protect patients, but also to support clinicians, as a threat? If you were inappropriately referred to your regulatory body, you would expect there to be an open and fair examination of the issues presented to them, and it's not --
LANGDALE: So you think doctors should have more confidence --
GILBY: Yes.
LANGDALE: -- or nurses, that if it's malicious or just arising out of a set of circumstances --
GILBY: Yes.
LANGDALE: -- and it's being cynically deployed they should feel reassured by that: the regulator will understand that or work that out?
GILBY: They should, but I don't feel that doctors and nurses do have that confidence. And part of that is from very well publicised accounts of long, drawn out investigations into concerns that perhaps were unfounded. And unfortunately, in my own experience, I have worked with a doctor who was -- he worked across two Trusts, one was a big teaching hospital and the other was a DGH, and prior to me becoming Medical Director there -- this is not the Countess -- he had been referred by a patient to the GMC, and without justification, as it turned out. But the GMC, 18 months down the line, hadn't taken any action to resolve the situation. And this doctor became very distressed and depressed as a result, and so myself and the Medical Director and the teaching hospital took some action to write to the GMC to agitate for a resolution to this issue.
Unfortunately -- well, tragically, this very talented and dedicated doctor took his own life as a result of the mental illness that was exacerbated by this process, and those -- this was -- there was an account of this incident in the British Medical Journal and it wasn't the first time that there had been articles about the experience of being under investigation by the GMC. So I think it -- rather than it being always employers who are causing clinicians to have a lack of confidence in the support they might get from their regulator, it's these tales from their colleagues that are sometimes well known, that make them fearful of the process that actually it should be fair and open, and they shouldn't be at all afraid of it. As you will be aware, I was threatened with referral to the GMC myself in my latter months, and also after I had -- even after my employment had ended at the Countess of Chester, and I was not concerned, because I knew that I had nothing to fear in the sense of GMC findings, but the reason it was happening, and I was well aware of the reason, was because they knew that I potentially would see that as a threat and that it would make me step away from the actions that I was taking and the truth that I was seeking.
LANGDALE: You say in your statement: "Maliciously threatening or submitting ill-founded reports to professional boards should itself be a disciplinary offence."
GILBY: Yes. I think that's part of a code of conduct that should be absolutely embedded in public service, that maliciously reporting somebody or using the regulator as a threat should be a never event.
LANGDALE: You say at paragraph 304: "The backgrounds of Non-Executive Directors on NHS boards should be balanced in relation to healthcare experience and finance backgrounds. There should be at least one medically qualified Non-Executive member with a proven track record in the core business of the organisation, whether that be mental health, acute care or specialist services. Mandated training courses should be provided for all new Non-Executive Directors with education in safety standards and quality assurance related to healthcare and how to constructively challenge Executives and when to bring additional expertise to the board." My question specifically, how to constructively challenge Executives. In your experience, can it get a little cosy or a bit comfortable and get difficult for Non-executive Directors to do this?
GILBY: Yes, I think there is a possibility of it getting cosy although to being a sort of groupthink, and I think that at various stages, the Countess were very comfortable about their -- the board was very comfortable about the performance of the organisation as a whole. Coming into it from the outside, I was very shocked by the state of the organisation and it clearly was -- nobody was challenging the Execs to say, "Why are we where we are?", because they didn't recognise that where they were was so far from the norm as to be inadequate, in my view. But I've seen boards where there hasn't been enough knowledge in the Non-Executive Directors to challenge the clinical Executives, or to -- I don't mean challenge in an aggressive way, I mean to have informed discussions where they are asking questions, seeking clarification. They're often unable to do that because they just don't have the background, whereas you observe a different type of questioning of the, say, Director of Operations or to the Director of Finance, and I've seen on many occasions board meetings being very focused on finance and operations because that is the comfort zone of the Non-Executive Directors when it comes to challenging papers that are brought, or business cases.
LANGDALE: In your experience, do Non-Executive Directors and the
Chair meet without Executive Directors very often or at all, where they might say things in a more open fashion if they've got worries or concerns?
GILBY: Yes, they do, yes. I'm sure that in most organisations the Non-Executive Directors will have meetings without the Executive, and you would hope that the clinically qualified Non-Executive Directors would be able to perhaps explain some of the background and some of the questions that they should be considering in those more clinically orientated papers. And vice versa, in terms of finance.
LANGDALE: You say: "Healthcare provider organisations should be clinically led with leadership and management training becoming an integral part of undergraduate and post-graduate training programmes in all clinical professions, particularly in medicine." Why do you think that would assist?
GILBY: I think the UK is quite unusual in that it's rare for a medically qualified person to be the Chief Executive of a provider Trust, whether it's a hospital or -- particularly in hospitals, sometimes in mental health Trusts and community Trusts, it is more common. I think that understanding of the core business and being entirely patient focused brings a great deal of
value to the organisation and more particularly to patients and the community that we serve. I, when appointed as Chief Executive, was one of only question medically qualified Chief Execs in the whole of England in acute and specialist Trusts, and I think at the time there were 162 of those. It seems to me that we have got things the wrong way round, and the clinical leadership should be enabled by really strong financial Executive leadership alongside it, and digital, and HR professionals, but unfortunately there is no mechanism for medical staff as through their training, whether undergraduate or post-graduate, to understand the benefits to patients of actually leaving a service, let alone a whole organisation. It was a very difficult thing for me to agree to step aside completely from clinical practice and be a full-time Executive Medical Director. But I could see that there was so much to do at Wye Valley that it was about making the biggest difference to the most numbers of -- the highest numbers of patients for the longest time, and I could do much more good in doing that with the knowledge I'd brought from my clinical practice and my interest in risk and governance and patient safety, than just the patient in front of me and their families, because there were many people around me who were
skilled and could do exactly the same job that I was doing. I also find that when you -- I used to give lectures to medical students and junior doctors and sometimes even consultants about how the NHS is structured. Where do we get our money from? You know, how is it regulated? And I'd be really surprised to find that not only do the undergraduates not know any of this, but even consultants of many years' standing are hearing it for the first time. And the distrust this engenders between very talented bright, professional clinicians and Executives who they don't understand why they're there or what they do is to great detriment to the people that we serve. So I do feel that it should be a core part of the business of becoming a doctor or indeed a nurse.
LANGDALE: You say: "Mentoring and coaching should be mandated for all Executives in their first board role." In what form? Who should be the mentors and coaches? What are you thinking that would assist with?
GILBY: Well, first of all I would say that it needs to be somebody completely independent from the organisation in which you're working. I had the benefit of really strong support when I went into my first Medical Director role in terms of professional coaching and mentoring from a very experienced Medical Director in a different part of the country, and the Trust Development Authority, which preceded NHS Improvement, the Medical Director there made sure that that support was made available to me, knowing what I was going into. But that is actually quite unusual so I believe that a mentor should be somebody who is experienced in the role and it should be chosen on an individual basis because it -- the Trusts were all very different, and the challenges going into a smaller specialist Trust are very different as to going into a big district general hospital with all the different services that it has. In terms of coaching, that should be with somebody who is a professionally trained coach, as opposed to somebody who is within the organisation and is doing this as an adjunct to their day job.
LANGDALE: You say: "All unexpected cardiorespiratory collapses should be reported as serious patient safety incidents and there should be a framework for the investigation of all clusters of patient safety incidents." Cardiorespiratory collapses, why do you identify that as a single collapse or cause that requires serious patient safety incidents?
GILBY: Well, cardiorespiratory collapse is what happens as the ultimate outcome of an undetected and untreated deterioration in the patient generally. So the original problem may be sepsis, for example, or it could be trauma or it could be following a procedure. When we say cardiorespiratory collapse, I mean a cardiac arrest or a stopping breathing. So if that happens it's at the end of a deterioration, more often than not, and it should be something where there is an intervention, the deterioration is recognised and then there is an intervention to try to prevent the cardiac arrest if it is preventable. So for this to happen out of the blue is very rare even in adults, and each instance of a cardiorespiratory arrest should be treated as a serious incident if it is not anticipated.
LANGDALE: Paragraph 312, the Care Quality Commission. You point out they were made aware of concerns about unexpected and unexplained deaths in a February 2016 inspection, but their 2018 inspection didn't examine Women and Children's Services. What do you say about that?
GILBY: From reading of the transcripts, I know that there is some controversy about what was said in CQC --
LANGDALE: Don't comment on that. Just whether, in 2018 or not --
GILBY: In 2018 I found it odd that given the circumstances of the organisation, the CQC chose not to inspect Women's and Children's Services, particularly as it was one of the areas where I had the most concern. And some of the things that they found in 2022 were even after improvements that we had made, especially in maternity. So when I queried the decision not to inspect Women's and Children's services, they said that they weren't going to do that because of the ongoing police investigation, and --
LANGDALE: When did you query that?
GILBY: At the time. And that, to me, it seemed counterintuitive. The police obviously would be consulted as to whether there was any risk of it interfering with their investigation and I'm quite sure they would have said no, there wasn't, because they were investigating events from 2017/16, and we had a duty of care, as did the CQC to the patients in the here and now in 2018/19 and I actually found the CQC reports over the years as a useful tool to help colleagues to recognise the need for improvement, and to get the board to see the need for investment in some cases. And there was a great deal of need for investment particularly in maternity at the time.
So that, to me, didn't make any sense.
LANGDALE: Next paragraph, you say: "Healthcare provider organisations should be run on a basis of openness. The public should be helped to understand that healthcare is not risk free. Admission of mistakes and the learning from them should be widely communicated." How do you think those communication strategies enabling transparency should be put together? How do we achieve what you've set out there?
GILBY: Well, I'm sure it's multifactorial, and I probably would give a better and more considered answer if I'd thought about the mechanisms of it. But there are reporting mechanisms which most members of the community are not going to go and read the board papers but there are opportunities through, especially now, with digital facilitation, to have on your website information about how do we investigate incidents, what sort of investigations -- what sort of the incidents do we have? How common are they? There's loads of opportunities to do that. And I think also there needs to be overt accountability so owning issues when they happen as opposed to deflecting and defending. One of the things that I was very -- it meant a lot to me that when we got to the end of the trial, we needed to be able to own and be accountable for what had happened in the organisation, and I therefore commissioned a report, a review into how the Trust had responded to the concerns raised by the paediatricians. It was my intention that once that report was finished and before the verdict, we would prepare something for the public, but obviously initially privately for the parents, so that we could stand up. I personally would have stood there and said: we made mistakes, there is learning, and we are accountable for this and we want to be held to account for how we implement that learning. But unfortunately, that is not how the NHS operates. And there was a great deal of resistance to my intention to openly say that after the verdicts. That was my intention, and it was known to be my intention and it was made very clear to me that that was not how we deal with things. I think if we started to be more open in, either in person with patients and the population or on our information sites that people can access very readily, about where things have gone wrong and what we're doing about it, the ownership of that, then the patients and the public would have greater trust in the fact that we are doing our best for them even though those delivering
care are humans and sometimes things do go wrong.
LANGDALE: Finally you say: "I believe that the historical cases both in the UK and internationally, together with known pathological variations in human behaviour, make the emergence of a future clinically qualified serial killer a certainty. All available academic research should be deployed and further research undertaken to enable identification of 'red flags' at the earliest opportunities. Boards should be required to address this theoretical possibility as part of their programme of development of workshops." Would you like to elaborate on that?
GILBY: Yes, well, obviously I'm not a psychologist, but it -- there are so many cases over the years reported internationally that it would be foolish for us to believe that this will never happen again in the sense that there will never be another Letby, Shipman, Allitt. But there are reports already, and there is academic research, which if it was properly shared with leaders in healthcare, and that we were required to consider it and how we would respond to the sorts of concerns that paediatricians were raising in 2015 and 16, and to look back at those cases, that when somebody is asked to think the unthinkable, they are not triggered to back
away from that, but to openly seek to understand, and to recognise that it isn't unthinkable. It's happened time and time again. And that we need to make sure it's not happening here. And I'm reassured to a certain extent in that I have been contacted by Medical Directors in other organisations to ask how they can learn from the experience, and I'm hoping that that in the future will be possible for them. But the Clothier Report, for example, which was published after the crimes of Beverly Allitt, was not something that was ever considered or mentioned in any of the training that I've done, either nationally or internationally, in terms of leadership, patient safety or culture within organisations. And I think that's something that needs to change.
MS LANGDALE: Thank you. Those are my questions, Dr Gilby.
THE WITNESS: Thank you.
MS LANGDALE: My Lady, there are no questions from Families 1 and 2, no questions from the former Exec's legal team either. So that concludes our questioning.
LADY JUSTICE THIRLWALL: Very good. So as you know the way it works is that people indicate which areas they would like questions asked about and sometimes that they would like to ask them themselves, but obviously decisions have been taken by all parties that they don't want to ask you any more questions. So thank you very much indeed for making yourself available today. I know it has been a long session and we're very grateful to you. THE WITNESS: Thank you.
LADY JUSTICE THIRLWALL: Thank you. Do feel free to exit. (The witness withdrew)
LADY JUSTICE THIRLWALL: Ms Langdale, I think that's the last witness from whom we're going to hear.
MS LANGDALE: It is, my Lady. And it's oral submissions in Liverpool, 17 March.
LADY JUSTICE THIRLWALL: 17 March. Thank you very much indeed. And the deadline for written submissions is now 4 March now, rather than 20 February. Thank you very much. We'll reconvene in Liverpool in about a month's time.
(2.45 pm) (The hearing concluded)