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4.44 pm

Dr. Doug Naysmith (Bristol, North-West): Like other hon. Members, I want to thank a number of people who contributed to the report and the Government's worthwhile response: first, my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson), who described the circumstances in which he made the brave decision to establish a public inquiry to which we have the opportunity to respond; secondly, Sir Ian Kennedy, who chaired what must be one of the most thorough public inquiries ever, which presented sensible recommendations that are also clear, concise and easy to understand; thirdly, the parents of the children involved, who not only had their individual tragedies to contend with, but their individual grief to bear once more as the inquiry began and many of their stories came into the public domain again.

I rarely agree with my neighbouring Member of Parliament, the hon. Member for Woodspring (Dr. Fox), but I did today when he drew attention to the burden that has been placed on the staff at the United Bristol Healthcare NHS trust hospitals. There has been an unwarranted focus on them simply because they have been close to the eye of the storm. Similar comments apply to the current senior management and senior board members at the UBHT, who were not in post at the time of the tragedies and have coped admirably with their additional unwanted tasks.

Perhaps the most important result of the Kennedy report, and the Government's response to it, has been the recognition that the concerns of so many people in the national health service were ignored or pushed under the table for years. No appropriate action was taken on the very poor results of paediatric heart surgery for far too long. Although bits of information were available over a period of years, they were not acted on.

There are many disturbing comments in the report. It talks of a lack of leadership and teamwork, a hospital that was permeated by a "club culture" and the lack of open discussion. It was a place where review was difficult and, perhaps most tellingly of all,

There was no means of assessing the outcomes of treatment. Indeed, there were no agreed standards to measure local results against. That surely contributed to parents being told the national success and failure rates for such operations, rather than being given the Bristol figures. Had those been available to parents, it is hard not to ask how many children might have been saved if their operations had been carried out elsewhere. Parents who wanted to do their best for their very sick children were let down by the very people they trusted to help them.

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To make matters worse, the report criticises the way in which parents were given details of the operations to be performed on their children. For example, it mentions details that were written on scraps of paper and that when children died as a result of the operation, some of their parents were told of that in an unsympathetic manner, with little help or advice being offered. This rigorous inquiry was therefore welcome, however painful it must have been for those involved.

The Kennedy report made 198 recommendations, and I believe that the great majority have now been, or are beginning to be, addressed. Today the Secretary of State brought us up to date with the progress. The major point about the dreadful happenings at the BRI and the children's hospital is that they highlighted several areas of health care and clinical practice that were not uncommon at that time. Bristol was not the only place where systemic factors led to inadequate services remaining undetected for too long. It may be true that there was an uncommon conjunction of bad practice in one place at that particular time, but elements of the Bristol situation were certainly present elsewhere.

I know that as a result of the scandal being brought to light and the subsequent inquiry, the BRI and hospitals throughout the country have changed, or are beginning to change, auditing and assessment techniques and, at least as importantly, their approach to patients. The result in Bristol has been a dramatic improvement in the quality of cardiac care for both children and adults.

I want to quote from a recent report by a Department of Health review team, to which there has already been a reference today. The team is examining every children's heart service in Britain. On clinical excellence in Bristol it says:

On clinical governance, it says:

That report clearly shows that much of what Kennedy recommended is not only sensible but achievable. That is why I welcome the Government's response to the Kennedy recommendations, including those that have been implemented and those on which announcements were made today.

4.51 pm

Ross Cranston (Dudley, North): My right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) began and ended his contribution with a moving tribute to the parents. My hon. Friends the Members for Bristol, West (Valerie Davey), for Kingswood (Mr. Berry) and for Bristol, North-West (Dr. Naysmith) have all spoken, as constituency Members, of their admiration for the parents. Of course nothing can replace their terrible loss or assuage their grief, but I should like to associate myself with my hon. Friends' remarks about them.

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As the Secretary of State said in opening the debate, much has changed since these terrible events. More money has gone into the NHS and more doctors are in the process of training. There have been organisational responses. There has been work to ensure that patients' needs are taken into account; national standards have been established, and there are mechanisms both to monitor and improve those standards. In addition, more information is being published for patients.

In many ways, the report is an historic document, dealing with what happened, but also providing an important and challenging map, as the Government response puts it. The Secretary of State indicated what steps have been taken; what steps are being taken in the National Health Service Reform and Health Care Professions Bill, which is before the House; and what will be done in future by, for example, the Council for the Regulation of Health Care Professionals.

My hon. Friends and others have paid tribute to Sir Ian Kennedy, and I should like to associate myself with those remarks. I should declare an interest here, because I was dean of one of the law schools at the university of London when Professor Kennedy was the dean at King's college, London. I know his work. He effectively pioneered the study of medical law in this country and, in many ways, the report is a testament to his accumulated knowledge and wisdom on the subject.

I want to address one particular aspect of the report, which falls under the heading of "Openness". At the very outset, on page 3, the report says that although from the late 1980s there was enough information about mortality rates for questions to be asked at the Bristol royal infirmary, the mindset to do so did not exist. The information was not available to the parents or the public, and the information that was given to them was confusing, partial and unclear. In an important passage, the report states:

That open and non-punitive environment did not exist at the time at the Bristol royal infirmary or more generally in the NHS. As my hon. Friends have said, the anaesthetist Dr. Bolsin blew the whistle. As my right hon. Friend the Secretary of State said in his statement in July, and my hon. Friend the Member for Kingswood said this afternoon, we owe him a great deal.

The report recounts how Dr. Bolsin became concerned about outcomes of children's heart surgery in the late 1980s; how he raised his concerns with his colleagues and within the trust; and how open discussion was inhibited by the culture. We had first-hand testimony from the hon. Member for Westbury (Dr. Murrison), who described his experience of being trained at the Bristol royal infirmary. In particular, Dr. Bolsin was inhibited by the fact that his anxieties concerned Dr. Wisheart, one of the most senior and long-serving surgeons at Bristol. Wisheart's view was that the reason for the poor results at Bristol was the condition of the patients, rather than the care that was provided. The report summarises Dr. Bolsin's position:

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To promote a climate of openness and dialogue throughout the NHS, my right hon. Friend the Secretary of State, when a Minister of State in the Department in 1997, issued a letter, "Freedom of Speech in the NHS", in which he called on chairs of NHS trusts and health authorities to adopt good practice, enabling NHS staff to raise concerns about health care responsibly without fear of victimisation. He noted that there was a private Member's Bill to provide legal protection for whistleblowers; he indicated that it had Government support, but said that it was necessary to act straight away in advance of the legislation. I commend his actions in September 1997 in which he was no doubt supported by my right hon. Friend the Member for Holborn and St. Pancras.

I must declare a second interest at this point, because before entering the House I succeeded Lord Borrie as the chair of trustees of the whistleblowers' charity Public Concern at Work, which promoted what became the Public Interest Disclosure Act 1998. That Act was ably steered through the House by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) and, in brief, protects people who raise genuine concerns—in the context of the NHS, concerns about risks to patients or possibly financial malpractice—whether or not the information is confidential. It protects NHS workers who blow the whistle and have an honest and reasonable suspicion of malpractice. Disclosure is protected if made internally and to identified regulators if the whistleblower honestly and reasonably believes that the information is substantially true. In some cases, wider disclosures are protected.

As a result of the Public Interest Disclosure Act, the NHS executive issued circular No. 198 on 22 August 1999, reflecting the strong support of my right hon. Friend the Secretary of State for the Act's underlying policy. The circular noted that the NHS had had its share of incidents that could, and should, have been prevented, had staff felt able to raise their concerns about health care matters without being victimised. Clearly, what had happened at Bristol was one of the incidents contemplated by the circular, as the Kennedy inquiry had been established a year before by my right hon. Friend the Member for Holborn and St. Pancras.

The circular required every NHS trust and authority to have in place local policies and procedures complying with the provisions of the 1998 Act. I hope that in his reply, my right hon. Friend the Minister of State will lay out the steps taken to implement the circular. For completeness, I should say that the charity Public Concern at Work has done a great deal of work in the NHS to ensure that there are adequate whistleblowing procedures.

I return to the report, and in particular its consideration of the whistleblower, Dr. Bolsin, and of whistleblowing in general. I do not want my remarks to be misunderstood when I say that there is a flaw in the report. I am not criticising anyone for that flaw. It is inevitable in a task of such magnitude that not every issue will be given the same detailed consideration.

I look to my right hon. Friend the Minister of State, in his reply to the debate, to confirm my understanding of the correct position. It is important for the future of the NHS and even more so for other parts of the public

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services, as so much has been done in the NHS since my right hon. Friend the present Secretary of State's letter in 1997. It is important that whistleblowers such as Dr. Bolsin feel able to take action in relation to serious concerns, without fear of victimisation.

What does the report say? At page 162 it states that Dr. Bolsin would not have been protected by the Public Interest Disclosure Act 1998 if that had been in force, despite the report's assessment that although his actions may not have been the wisest, his conduct was understandable and he was right to persist in raising his concerns. His good faith is not questioned in the report. Unfortunately, the report does not mention my right hon. Friend's 1997 letter or the 1999 circular.

The legal analysis underlying the report's conclusion about Dr. Bolsin is in annexe A. I apologise to the House if what I am about to say is unduly technical. All that the Act requires of whistleblowers such as Dr. Bolsin is that they reasonably believe—I emphasise those words—that the information tends to show—again, I emphasise those words—the concern, and that the disclosure is in good faith.

The report states at page 141 of annexe A, first, that it is not clear whether any of the disclosures would have been protected as reasonable, and secondly, that mixed motives, which it rightly says are easily attributable to whistleblowers, would deny protection under the good faith requirement.

With respect, both those points are wrong. The test that a person should reasonably believe that the information tends to show something is a very low threshold. To suggest that Dr. Bolsin would not have met it is surprising—I put it no higher than that. The report sets out his collection of data, which clearly must have led him reasonably to believe that his concerns were credible. There is no criticism of Dr. Bolsin in that regard. Although hindsight cannot be taken into account, it confirms his reasonable belief. Doctors have been struck off, and we have a massive report with more than 200 recommendations. Clearly, Dr. Bolsin reasonably believed that the information tended to establish his concerns about children's heart surgery.

As for the point about good faith, my right hon. Friend the Minister of State will no doubt remember from his own legal studies that in English law, the test of good faith is basic: it is honesty. By contrast, good faith in the civil law and in some aspects of United States law is more demanding. It requires fair dealing. To suggest that mixed motives, which whistleblowers typically have, obliterate good faith is to misunderstand the distinction. Of course, if the dominant—I repeat—dominant motive of a whistleblower is mischief making or if it is ideological, that good faith would come into question. However, the mere existence of mixed motives in no way means that there is an absence of good faith.

I believe that a third aspect of the report is in error, in relation to the wider disclosure that Dr. Bolsin made to Dr. Phil Hammond, the GP and media commentator. The report focuses on whether a particular gateway was satisfied. In my view, another gateway was clearly satisfied, as Dr. Bolsin had raised matters internally but had got nowhere and could therefore raise them outside.

I have detained the House for too long. I believe that it is very clear that Dr. Bolsin would have been protected by the Public Interest Disclosure Act 1998 if it had been

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in force at the time. The Act and the measures to implement it in the NHS, and more generally, have ensured a fundamental shift in culture since these terrible events occurred. I was especially pleased to hear my right hon. Friend the Secretary of State announce acceptance of the report's recommendation on establishing a free confidential telephone line for the reporting of sentinel events. There is now a climate of greater openness and dialogue. Nothing in the report should dissuade people from expressing concerns because of a fear of victimisation. It is to the credit of Ministers that the culture has changed. The signal has now been given that speaking up about serious concerns is a safe alternative to silence.

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