Public Petitions Committee, 27 Jan 2009

Meeting date: Tuesday, January 27, 2009

Official Report 340KB pdf

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New Petitions

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Clostridium Difficile (Public Inquiry) (PE1225)

Agenda item 2 is consideration of new petitions. The first petition is PE1225, by Michelle Stewart, who is accompanied by David Chandler, and by Patrick McGuire from the legal team that represents families affected by Clostridium difficile. I also welcome Jackie Baillie, whose constituency contains the Vale of Leven hospital. She came to know this part of Glasgow very well in her previous roles as a parliamentarian, so I welcome her back to it. I also welcome the petitioners.

The petition essentially asks the Scottish Government, under the Inquiries Act 2005, to hold an independent public inquiry into the outbreak of Clostridium difficile—or C diff, as it is known in newspaper and television coverage—at the Vale of Leven hospital, so that wider lessons for the whole of the national health service can be learned. It asks that the inquiry involves and publicly funds all relevant individuals, groups and organisations that have been affected by the outbreak to determine the inquiry's terms of reference and to identify the issues that are to be examined. I invite Michelle Stewart to make an opening statement, which we expect from petitioners.

We are here today because we are all relatives of folk who have died of C difficile at the Vale of Leven hospital. We have come together as a group because we think that the systems have totally failed, which is why the bug was allowed to run rampant for six months. Nobody detected what was happening or how many people were catching the bug. Until it became obvious from newspaper reports, even we, as the families of those who were affected, did not realise that we were caught up in what was probably one of the biggest outbreaks that Scotland has ever seen.

Given what happened and the way that we found out, we feel that none of our questions about how our loved ones were able to catch the bug, why they were not isolated, why proper procedures were not put in place and why the systems totally failed in the Vale of Leven hospital has been answered. We know that a lot of emphasis has been placed on the police inquiry, but we are not interested in people being charged or going to court—that will not satisfy the families, and it will not help other people.

What happened at the Vale of Leven hospital could have happened anywhere in Scotland, because the hospitals are all under the same surveillance systems—there is no difference. The issue does not affect only us.

We do not know what happened. We deserve answers. Anyone who has lost somebody deserves to know why, but we also deserve to know that lessons will be learned. We need to find out what happened, so that it can be stopped and will not happen anywhere else. We want to know that nobody else will put somebody they love into hospital and end up going through what we are experiencing.

So much support for the NHS and so much morale have been lost that nobody believes in it any more. We do not believe in it any more because it is a closed institution that keeps itself to itself and does not answer to anyone. We are here today because the NHS has to answer to people. It looks after the health of everyone in this country, so it has to answer to us. It has to show us what it is doing, where it is going wrong and how it is putting things right. People will believe in it again only if it comes out and says, "Okay, we've made a mess. This is what happened and this is how we're going to fix it."

In this day and age, it is appalling that we are having to fight to get answers to find out why people died. We will not go away. We totally respect the police inquiry. We have been interviewed by the police and from what we can tell, they are not against a public inquiry. I have met John Watt, the procurator fiscal. Not one person has come out and said that they do not think that there should be a public inquiry. Lessons could be learned in a public inquiry.

People are saying, "We're gonnae do this and we're gonnae change that," but all those ideas have come from the families. We are not medically trained and we do not know what went on, so we are only scratching the surface. For things to change and lessons to be learned, how much deeper do we need to go? At some point this year, everyone here will have a family member who goes into hospital. Are you willing to take the risk that things will not be in place for them?

Thanks very much, Michelle. I know that it is difficult for people who have been affected by an issue to speak about it. That was a very brave contribution.

I invite members to ask questions, to which any three of you can respond.

There is an issue that I want to clarify, because I think that it will help us to come to the best decision. If I understand the situation correctly, you are quite clear in your minds that, regardless of whether the police inquiry concludes that people need to be prosecuted, there should be a public inquiry.

The difference that a public inquiry would make is that it would enable lessons to be learned. Lessons will not be learned as a result of the police inquiry. The purpose of a police inquiry is to find out whether people have been negligent and need to be charged. That will not change the systems that are in place. We need people to be safe and to feel secure; we need them to be able to go into hospital and know that they will come home.

Many members of the public come up to the families and tell us that they have cancelled hospital appointments because they are terrified, not of the operation that they are going in for but of the possibility that they will not come home. There are 80-year-old folk who say, "If I collapse, just leave me lying on the floor. Don't take me to hospital." That is how scared they are. Prosecutions will not make a difference to what is happening in the hospitals. The only way that we can make a difference is by learning what went wrong and fixing it, which can happen only through a public inquiry.

From a legal point of view, it is essential to remember that any criminal prosecution will be highly focused on specific issues—it will be thumbnail stuff. The families do not want only a specific incident at Vale of Leven hospital to be investigated; they want investigation of what happened at Vale of Leven to serve as a springboard for making things better for the whole of Scotland and, perhaps, the whole of the United Kingdom. Only by making things better will the families be able even to begin to put their lives together again.

I would like to pursue the issue a little further. How urgent is it that we start a public inquiry now rather than wait to find out what happens after the initial stages of the police inquiry? We do not even know whether there will be any prosecutions. I presume that if there were to be prosecutions, that could get in the way of a public inquiry or could confuse matters.

It is vital that a public inquiry starts as soon as possible, partly because people forget detail. As we all know, inquiries take a long time. It takes a long time even just to appoint someone to head an inquiry and to get the process moving. The fine detail will be vital as we move forward. That is the main reason why we must start a public inquiry as soon as possible. There is no reason why the two inquiries cannot run in parallel.

I can assist the discussion, using my personal experience. I was—and, because the decision has not yet been released, I remain—the recognised legal representative of all of the families of the victims of the Stockline Plastics factory disaster, which led to the first public inquiry run under the joint auspices of Westminster and Holyrood. However, there was an extremely long delay between the incident happening and the beginning of the public inquiry process. It took about three years to get an announcement that there would be an inquiry, and the inquiry did not proceed until some time after that.

We have heard about due process and the fact that we should not impede the criminal investigation. However, there is no such thing as due process in Scotland; that is an Americanism. The only requirement is that the investigations that are undertaken as part of the public inquiry should not prejudice the on-going criminal investigation. From experience, I can tell you categorically that that is a simple thing to ensure.

When the Stockline inquiry team was put in place, three years after the event, the investigations that took place were extremely restricted, secretive and confidential. Even I, as the recognised legal representative, did not get access to the majority of the information until about nine months after the investigation began. There is absolutely no doubt that an inquiry team could begin its investigations now without hampering or prejudicing the on-going criminal investigations.

Stockline can also teach us a lesson about people's memories fading. The Stockline families were ultimately very pleased with what the inquiry did in relation to the issues that it was able to address—they got answers that enabled them to start to move on with their lives, and there is no substitute for being in an open forum, hearing questions being asked, seeing people being cross-examined and reading people's body language as they give answers—but the inquiry did not explore all of the issues that the families wanted it to. It concentrated heavily on the gas issue and, to an extent, on the role of the Health and Safety Executive. The families wanted many other issues to be explored, including the corporate governance of small companies, but that was not possible, because the inquiry team proceeded on the basis of the HSE and police statements that had been taken two and a half to three years earlier. That was the case because, by the time the public inquiry was under way, people's memories had faded and there was not enough evidence to explore the issues.

The families were happy and got answers, but the inquiry did not address everything that they needed it to, simply because of the passage of time. We have to avoid that happening in the case that we are discussing today. The families that are represented here want to explore far wider issues than the police will be looking at. The answer is to set the team up and get it to have an early meeting with the families to work out what issues the team will look at and what the inquiry ultimately will address.

The input that we have had so far will be useful to us in making up our minds.

On timelines, the only other similar inquiry that has taken place in Britain is the inquiry into the Kent outbreak. That took two years, and family and staff were not interviewed. We are told that the current police investigation will take four months, but I think that that number has been plucked out of the air. Given that an inquiry into a similar outbreak took two years without questioning family and staff, we do not know how long the inquiry into the Vale of Leven outbreak will take. We should not rush it. We respect the fact that the police inquiry is on-going and it should be allowed to do its job properly. If that does not happen, we will end up with people criticising it for the fact that it was rushed, was not allowed to do its job and did not answer all the questions.

My mother-in-law will have been dead a year on Sunday, so already a year has passed, and the police inquiry might take another two years. How much will people remember in three years' time?

I accept that there is a strong case for a public inquiry. I would like to press you a bit on how you would like that to proceed. Clearly, it might not be appropriate to have certain individuals give evidence to an inquiry until the police inquiry has concluded and the police have decided whether to prosecute them. Do you agree? If so, should the inquiry team be set up immediately so that it can agree its remit, speak to the families and gather evidence without questioning those who are currently under suspicion? If that were done thoroughly, it might take until the police inquiry had finished, and the public inquiry could then take evidence from the staff.

That is what we have always said should happen. We have never expected that the public inquiry would be in court tomorrow. A lot of groundwork needs to be done in setting up a public inquiry—even deciding who will chair it will take time. We are saying that we should get the ball rolling now and start taking statements from the families, so that by the time the police investigation is over we are ready to go. The public inquiry and the police inquiry can work alongside each other by taking statements together. They do not need to be two separate entities; they can work together. I have spoken to John Watt—the procurator fiscal—and the police, and they have not said either way whether they want to have a public inquiry, but they have not said, "Please don't have a public inquiry, because that could mess up the police inquiry."

The police inquiry could result in prosecutions, which might involve trials. As we know, that process can take some time. Have you had any discussion with the Scottish Government, legal advisers, the Crown Office and Procurator Fiscal Service or the police on how all of that could be handled if the public inquiry were up and running?

No.

Would you welcome such advice if you could get it?

Definitely.

We might need to seek some advice on how the process would be properly handled. Is your legal team aware of how such issues have been handled in similar situations?

It depends on what you mean by "up and running". The families want the inquiry to be up and running in the sense that the chairman, inquiry secretariat and various investigators are appointed—no more, no less. Any evidence gathered in that period would be completely confidential—nothing would be disclosed to the families, their legal representative or anyone else until such time as the police investigation and any subsequent trials were concluded. Because of the entirely confidential nature of the way in which the inquiry team would gather evidence, it would be able to liaise freely with the police and the Crown Office and Procurator Fiscal Service to ensure that neither investigation impeded the other. The families would be entirely content with that.

Is there an example of that arrangement operating in a recent case?

I can give you only the negative example of the way in which the Stockline inquiry was handled, which was not ideal.

Because it took a long time until the public inquiry was established.

Indeed. It took too long. Until the inquiry concluded, the families were anchored to the past and could not move on. Further, because of the delay, the inquiry did not explore everything that the families wanted it to.

If the process were to operate in the way in which you suggest, there would be no public dimension to the public inquiry until after the criminal aspect had been dealt with, either by a trial taking place or by inquiries being concluded and a decision not to prosecute being taken.

Absolutely.

If the non-public aspect of the inquiry—the investigation and speaking to families—was completed and there was a wish to take evidence in public, but the prosecution case was still on-going, would the inquiry be suspended, for as short a time as possible, and then reactivated?

Absolutely. The crucial point is that the evidence would be obtained and preserved.

I understand all the points that you have made.

I have been privileged to work with the families who have been affected by C diff. The scale of the outbreak at the Vale of Leven hospital was unprecedented. Michelle Stewart was generous on that point—in terms of the percentage mortality rate, it was the worst outbreak in the whole United Kingdom. I am clear about the need for us to ensure that such an outbreak never happens again. That is a responsibility for the Parliament, too.

I am equally clear about the fact that the issue is not restricted to the Vale of Leven hospital—it affects people, hospitals and care homes throughout Scotland. The incidence of C diff is rising: year on year, the trend has been upwards. New strains are being diagnosed as we speak. At this point, no one is quite sure about the toxicity of the new 078 strain that has been discovered. However, in England, the number of C diff cases has dropped by 38 per cent in a year. Clearly, there is much work to be done and much to be learned. A public inquiry would enable us to learn lessons not in a piecemeal way but in a comprehensive way, so I hope that the committee will look favourably on the petition.

I have two questions for Michelle Stewart and David Chandler. I know the answers, but I hope that the committee will find them enlightening. What are your views on the validity of the independent review report on the tragedy at the Vale of Leven hospital? As members will be aware, the report was used as evidence that a public inquiry was not needed, on the basis that a review had already been carried out.

The independent review panel did what it could with the remit and the time that it was given, but it was inadequate. We have scratched the surface, but it did not even do that. At the back of the report was a list of about 30 people the panel had spoken to, but none of them were quoted inside; all the comments in the report began with "The families think" or "The families feel". There were no medical or staff comments—absolutely none. It is totally unacceptable that 18 people died but the panel came up with a booklet of only eight pages.

The report was put together quickly and was inadequate. The aim was to placate people and to show that something was being done, but the report did nothing. One guy—I cannot remember his name—described it as "not fit for purpose".

Was it Hugh Pennington?

No, it was Brian Toft, who wrote the report on the King's Cross disaster. His job is to deal with such issues every day.

I have a question for Patrick McGuire, as a lawyer's perspective is sometimes useful when dealing with issues such as this. Others have suggested that we should hold a fatal accident inquiry rather than a public inquiry. For the record, could you help the committee to understand the difference between the two and say why you think that a public inquiry is more appropriate?

I also want to draw out a point of detail. In the petition, you say that the inquiry should involve "all relevant individuals"—including relatives—"groups and organisations", and that their involvement should be publicly funded. Can you explain that, as I was unaware that such involvement could not be facilitated otherwise? Involving the public and families is critical when we are dealing with issues such as this.

Thank you for that massive question.

Please give us a brief answer, Patrick, not a lawyer's answer.

I will do my best, convener—but, unfortunately, my answer to the question on whether a public inquiry should be held, as opposed to a fatal accident inquiry, proceeds from a legal analysis. Article 2 of the European convention on human rights is on the right to life, and that right has now been established in Scots law through my firm's efforts with hepatitis C victims. The cases of Black and O'Hara have been in the press again recently. The state has a duty to investigate such matters and to do so properly, which means holding a full inquiry.

The important point to grasp is that a full inquiry—like article 2—would cover more than just the people who suffered fatal injuries; it would also cover people who were afflicted but survived. Of course, a fatal accident inquiry can deal only with fatalities—the people who died. Our group contains members who are survivors, so it is not only on behalf of those who died that we are calling for a public inquiry—although that is obviously a strong part of our case. A fatal accident inquiry would disenfranchise the survivors. More important, it would not be ECHR compliant.

There is also a political aspect. By statute, fatal accident inquiries must take place under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. There is no choice about that—a fatal accident inquiry must take place if a fatality occurs in certain circumstances. A public inquiry is a totally different matter: it is a matter of political will. There will be a public inquiry only if our political leaders say, "We consider this matter to be serious enough, and we think you deserve a public inquiry. We know you want answers; we're going to give you answers. We want lessons to be learned." That last point is the important one, and it is why we have to take the public inquiry route. This is a political issue, and we want answers for the whole of Scotland. That will not be achieved by an FAI.

From the fact that the petition is before us, it is obvious that the bereaved families and others are not at all happy with the results of the review.

I have to declare an interest. I live in south Argyll, and an enormous number of people there have depended on what used to be thought of as a great hospital. I regret to say that I believe that the hospital has been run down very much in the past few years.

It is important that we make progress with this petition, because it is vital that we restore the reputation both of the hospital and—as Michelle Stewart said—of the national health service.

We are taking about 18 people who have died. However, Professor Pennington, who is the acknowledged expert on these matters, says that more people may have died. Do you know how many more people the professor has suggested may have died?

No, but from our personal point of view, we honestly believe that more people have died. People who have lost family members have come to us and said, "See what you said in the paper about your family? That's what happened to our family, but they never told us that's what it was. It's not on the death certificate, so how do we prove it?" All that we can advise them to do is try to get the medical records, but people then come back to us and say, "They're not giving us the medical records. We've to go and get a lawyer." At least three families have stopped me in the supermarket and said, "That's what my mum had. All the symptoms were exactly the same. Within a week she had died and we had buried her. But nobody's told us that's what it was." So we honestly believe that more people have died.

The hospital itself did not seem to know. In our case, the infection was mentioned on the death certificate, but when we were in the hospital we were not led to believe that the infection could kill somebody. We were told that it was a bug and she would get over it—and that was it. When we then saw the death certificate, we thought, "Why did the infection contribute to her death?" If it was just a wee bug that people get over, why did it contribute to her death? The problem was a total lack of education. The hospital staff did not seem to know what they were dealing with or how rampant the infection was in the hospital.

Are you happy with that, Jamie?

Yes, convener. I should, however, declare an interest—my son was born in the hospital and my father's leukaemia was treated there. It is high time that we got to the bottom of what has happened at the Vale of Leven. I think that having a public inquiry would be a very good move.

The question is not only whether a public inquiry should take place but how wide its remit should be. I understand the relatives' feelings about what happened at the Vale of Leven hospital. I am concerned by Michelle Stewart's comments on the recording of deaths in hospitals. I suffered a bereavement over Christmas. When I received the death certificate this week, it confirmed that the death was due to C difficile. I should point out that it was contracted not at the Vale of Leven but at another Scottish hospital.

As a result, I believe that, instead of simply getting to the root of the problem at the Vale of Leven, a public inquiry should examine a number of wider questions. We know that there is a problem in the UK, but the parameters of an inquiry need to satisfy not only the relatives of those who died at the Vale of Leven hospital but people throughout Scotland who are just becoming aware of C difficile's impact on their loved ones and relatives and what is happening in our hospitals. The NHS will, of course, learn lessons from a public inquiry into what happened at the Vale of Leven, but I believe that the wider impact of this infection needs to be addressed.

As Michelle Stewart pointed out, C difficile infection is simply not being recorded on people's death certificates. Other people might have died from it in other Scottish or UK hospitals, but we do not know, because the death certificates cite things other than C difficile as the primary cause of death. How do we track that back? In many cases, death certificates cite only one ailment, illness or cause, but might there be some way of listing the various factors that contributed to a person's death in hospital?

As I say, I feel close to the issue, given my bereavement over Christmas, and I have a great deal of sympathy for the relatives in the Vale of Leven situation. However, I believe that it raises wider questions, and the more the issue is raised in public, the more people will come forward and say, "This might have happened to my loved one, but we can't be sure," either because records have not been kept or hospital staff have said that they are not prepared to release the necessary documentation. Not every relative is a medical expert who can go through medical records and discover, for example, that C difficile might have led to someone's death. As Jackie Baillie has pointed out, new strains are emerging that might have a more devastating impact, although they might not: we simply do not know.

If a public inquiry were held, would the panel welcome its being widened to take those issues on board?

As we say in our petition, we want lessons to be learned not only at the Vale of Leven but throughout Scotland. In fact, I think that your comments about death certificates not being filled in properly argue my case for me. If that issue came out at a public inquiry into what happened at the Vale of Leven, measures to address it would be put in place throughout Scotland.

What is happening at the Vale of Leven is indicative of what is happening across the country. No matter what we say, we have to remember that there might be different NHS health boards but there is still only one NHS Scotland. If death certificates are not being filled in properly at the Vale of Leven, they are not being filled in properly across the whole of Scotland. If that turns out to be a problem, it can be fixed across the whole of Scotland. [Interruption.]

Oops. Sorry. That is my phone.

That shut me up, for a change.

It is okay; we will force him to sing at the Christmas party. We have not decided which outfit he will wear, yet.

John Wilson makes an excellent point. If someone dies partly as a result of a hospital-acquired infection, it should show on their death certificate as one of the primary causes of death. That approach would allow us to record properly the number of people who caught such infections. At the moment, that is being missed.

I know that, in pilots that are being introduced at some hospitals, all admissions are screened before their operations to find out whether they already have any of these infections. However, are people who die screened to find out whether an infection was a secondary—or, indeed, primary—factor that might have been missed? It seems an obvious way of comprehensively assessing the size of the problem, Scotland-wide.

But, under the current law, C diff does not need to go on death certificates; all that needs to go on them is the primary cause of death. If that is found out to be an issue in a public inquiry into the Vale of Leven hospital, it can be addressed across the whole of Scotland. That is why a public inquiry is the right approach.

We have had a chance to explore some of the issues. I thank the petitioners for their comments. We now have to deliberate on what needs to be done next. I realise, of course, that this input into the Public Petitions Committee is only one part of the family members' campaign.

I am in members' hands. How do you want to take the petition forward?

Before I comment, I should apologise for my earlier minor interruption.

Don't worry, Robin. After all, I have heard you singing.

And nothing worse could happen. Well, perhaps it could. [Laughter.]

After reading the committee papers, I was in no doubt that a public inquiry was needed. Before we started this afternoon's proceedings, the only question in my mind was whether it would be better to wait until the police inquiry had been completed and any subsequent prosecutions had been brought or whether we should simply cut to the chase and ask the Scottish Government for a public inquiry now. I have to say that I am fully persuaded that we should go now.

Do members have any other comments? There seems to be broad consensus on the need to get to the very bottom of the issues raised in the petition. None of us wants to be put in the same position as the petitioners and one or two members who have been brave enough to indicate that the same thing might have happened to their family members. The issue, after all, seems to affect more than your own neighbourhood hospital.

We have had a clear view from Robin Harper. What do other members think?

I agree. The presentation has been very persuasive and we have received answers to the legal concerns that we all had about how the public inquiry process could work alongside an on-going police inquiry. We are not legal experts on these issues, and pausing for legal advice might take a number of weeks or months. We should therefore put the case for the public inquiry to the Government, the Crown Office and Procurator Fiscal Service and whoever else needs to be involved. If any legal issues arise on the handling of an inquiry in these circumstances, it is really for the Government to explain how the situation would be handled, in consultation with the police, the COPFS and others. That would allow us to deal with the matter today as positively as we possibly can deal with it.

I think that everyone can hear that the consensus around the table is that we should try to get to the bottom of this. We will take on board all the comments that have been made. The clerk has registered a number of key indicators that were raised in responses and in questions. We will pull all that together and make a submission to the appropriate agencies and the appropriate minister to see whether they can interrogate and deal with this issue of concern to the petitioners and other family members.

I hope that the process has been positive for the petitioners. I know that your campaign is continuing and that there are other things that you want to do over the next period. Thank you for your patience.

We will have a brief comfort break before we move on to the next item. That will also provide an opportunity for the television people to speak to family members, but I suggest that that is probably best done in the corridor.

I just want to thank the committee for its support for the petition today.

Thank you very much.

Meeting suspended.

On resuming—