10 June 2022: Gutowski - A

Mr Gutowski had an impressive suntan. Given the recent good weather, it may simply be down to doing some gardening; rather than him having to travel from a villa in some exotic location to give account of himself to a pesky Inquiry.

He joined the civil servant at an executive officer level and stayed as a civil servant until his retirement. He retired at a Grade 6 level, so was a mid-level worker whose views most likely were always given to him by more senior staff. He was part the Medicines Division in a fairly junior role which involved checking that information leaflets for medicines were compliant with the rules. Later, he was involved in relevant legal work but did not himself instruct lawyers. Then on to Blood Policy as its Head. A displayed document included his concerns about the Government’s approach to the matter of litigation related to viral infection, including how it could look like a “pay-off”. He clarified that these were not his words alone but were the result of consultation with superiors. The HIV Litigation was recognised as having unique aspects but was still likely to set an unhelpful precedent if it went to an out-of-court settlement position. Concerns included the potential for other peoples’ grievances being settled in this type of way. It might also lead to a more risk-averse attitude to giving out licences and making it harder to recruit people on to decision-making groups for fear of individual litigation. Other paperwork illustrated a strong desire to ensure protecting the Licencing Authority (LA) and the Committee on the Safety of Medicines (CSM) from any litigation.

As part of the HIV Litigation, it had been the practice of anonymising any patient whose name was associated with a report of an adverse reaction, but also anonymising the reporting doctor’s name. A court ordered that doctors’ names should in the future be disclosed, but the witness was seen to decide not to comply with the judge’s order. Sir Brian intervened to clarify this, and it was just so. Already, there is a sense of this witness being positioned as a classic fall-guy. He could not have discussed this with litigation unit colleagues because, as he clarified, “I was the litigation unit”.

In general, departmental policies were not automatically reviewed when a new person came into post. More likely, it would be down to other external change factors, or because a Minister was coming under pressure, perhaps by the press or the public.

A new Minister was in post when Jack McConnell (Scottish First Minister) and Malcolm Chisholm (Scottish Health Minister) wanted to speak about providing financial support to virally infected Scots. This was against the UK position of not providing payments. The situation was made more complicated because the then UK Health Minister was a Scottish MP, John Reid. (So, so much for the reputation of Mr Reid being a strong-arm enforcer within New Labour.) In another document about trying to preserve the multilateral non-payment line, it was stated that “Scottish Ministers had weakened”. Consideration was given to going to the Scottish Court of Session or the legal arm of the Privy Council. They wanted to preserve the line of a UK-wide policy of not making payments. Mr Gutowski admitted that despite his having signed the documents, he was still new in post so was almost certainly relying on previous activity. He could not answer questions about aspects of the thinking behind the decision to just stick with the line. Again, the Chair intervened. Sir Brian’s continued directness indicated that the Chair had the measure of this witness.

When it became clear that the Scots were almost certainly going to announce a scheme of payments, there had to be a swift revision of the Westminster position so that an announcement could be made in the Commons at the same time as the one expected in Scotland. This all demonstrated the uniqueness of the situation because very unusually a public announcement was going to be made without any preparatory work having been done. The announcement was crafted to make it look like it was their decision, with no reference to having been forced into the change due to Scotland. There was “spin” all over this change, seeking to establish that the DH had acted “because it was the right thing to do”. There had been many PQs, but the DH officials thought most could be “stonewalled” (how democratic a perspective). In looking for a new “line”, Bob Stock was approached from a Scottish civil servant perspective. He was not available, but Sandra Falconer had a suggested line arising from a meeting with Philip Dolan. The focus was to be on supporting people who were still alive and experiencing the challenges of living with viruses, and not about anything which could be construed as an admission of liability or being equivalent to compensation. Payments were to be made “on compassionate grounds”, but the witness could not explain the anomaly of a sense of compassion not being directed towards suffering caused.

Clearly, this turn of events created no small storm of activity. Meetings between finance ministers were arranged, but a meeting involving Malcolm Chisholm was expressly not to involve any mention of “Hep C”. Other civil servant attempts at control the agenda (and the purse-strings) were discernible by the focus on being “realistic” and doing things in through a set of stages. The witness shut down any attempt by Counsel to disclose if there was any sense of annoyance in Whitehall directed towards the Scots for publicly announcing their intention to begin making payments. The witness was clearly under pressure so was ducking his head back into his shell.

In remedially back-filling the preparatory work, discussions about expected costs of a scheme included referring to the possible maximum amounts as being a “worse case” scenario (a telling choice of wording). As one possible way of reducing financial exposure, it was suggested that costs could be lowered by not pro-actively seeking people who might be eligible. They also predicted that costs would go up when pressure was put on the Government to include dependents in a scheme, especially if it was administered by the Macfarlane Trust since they already did that for existing scheme members. The Treasury had already stated that it would not make any additional money available, so all costs would need to come out of the existing NHS budgets; as expressly stated by Paul Boateng. Basically, this was an unplanned-for development, very unwelcome, not budgeted for, and a total hassle (… those darn Scots). It became an exercise in financial damage-limitation, involving every effort being made to minimise the costs, and especially with no concern whatsoever for the actual suffering of this nation’s citizens who had been harmed by the State, none at all. The unavoidable matter of including Wales and Northern Ireland in the thinking simply added to the complications this was all causing.

It is thoroughly compelling and refreshing to see and hear these admissions and revelations being made in such a public setting. Yes, it is.