31 January 2023: Closing Statements, Simon Bowie KC (NHS Scotland) - A

The collective noun for lawyers is “an eloquence”. Other collective nouns for lawyers include huddle, disputation, greed, quarrel, and escheat; for the last of which the Microsoft built-in thesaurus offers no synonyms. So, make of that telling collection of lawyer collectives what you will, but this morning in the Infected Blood Inquiry Hearing Room it was chock-full of lawyers for some reason.

 

Simon Bowie KC represents the Scottish National Blood Transfusion Service (SNBTS) and the territorial health boards in Scotland. He began by speaking to the infected and affected, offering the utmost sympathy of his clients for all the years of suffering caused. He apologised unreservedly for any part his clients had played in harming people (… was this sincere or obligatory, you decide). It is important to acknowledge the harm caused, he said. The Inquiry is correct to place the infected and affected at the core of the Inquiry. He then explained how he had structured his closing statement in three parts: introductory comments; health board specific matters; and SNBTS specific matters.

 

He began by referring to the closing statement of Mr Snowden and the six questions he had posed, including, “What went wrong?” This particular question has directed the approach which his clients have taken to the Inquiry. The National Services Scotland (NHS-NSS) Chief Executive was in attendance. The two clients had prepared two separate submissions apart from each other. The territorial boards all approved at the highest levels the submission on their behalf. There were also senior representatives of Lothian Health Board and the Glasgow Health Board in attendance. Mr Bowie stressed the absolute sincerity felt by the senior management if his clients about the importance of the Inquiry. The clients have listened carefully, particularly to the infected and affected. He acknowledged that this had not always been the case in the past, including in connection with the Penrose Inquiry (… hooray! … but not before time). The overriding approach has been of critical self-reflection, and a conviction to be really determined to remain faithful to these objectives. There was a desire to be open-minded and to be willing to re-visit certain assumptions. The have tried to be even-handed, even if the evidence was difficult to hear.

 

Each relevant (i.e. Scottish related) witness statement had been looked at to seek to identify where the clients’ staff actions have been questioned. They recognise that they have failed people in the past. Another form of the same sincere apology was repeated. There must be no repeat of this tragedy he said, and despite the passage of time, any lessons must be learned and this requires an honest, frank self-assessment. While recognising the role of the Chair to make his conclusions, Mr Bowie’s clients have sought to provide a considered view even if these views are at variance with others’ assessments. As Scottish-based bodies, the focus has been on Scotkland-related matters.

 

Observations were made on, for example, the assertions of issues such as “hindsight” being at play. Mr Bowie stated his clients’ confidence in the Chair’s experience and capacity to draw his own conclusions. The clients did not seek to speak on behalf of individuals. “Memory” as a potential issue had previously been mentioned in others’ closing statements. In this regard, the assertion was made that in many respect the patient and the clinician statements actually confirm one another rather than conflict as a matter of recall.

 

The second general theme was on the matter of health boards specific matters. The statement concentrated on the key issues about any practice questioned. Mr Bowie stated that the boards stand by their staff past and present. They said that even though mistakes were obviously made, there was no indication from their analysis of the evidence that any clinician ever set out to harm any patients. There were higher-level comments on the developing understanding of the risks associated with Non-A, Non-B Hepatitis (NANB-Hep) which became Hep C (HCV). Mr Bowie asserted that the medical profession generally had struggled with its understanding of viral hepatitis. There had been no satisfactory answers to the questions. The hepatic virus severity had been underestimated. Reference was made to the “Unresolved Issues in Haemophilia” symposium in 1980, held in conjunction with the UKHCDO’s AGM, and the comments of Dr Thomas in relation to biopsy study results. Mr Bowie said there was an emphasis on “the more optimistic interpretation of the uncertain prognosis”. This writer has recognised how the significant focus of matters related to what was known and when is seen as crucial, and clearly these core participants think so too.

 

The Chair intervened with a comment about the use of the phrase “possible risk” in the submissions. Surely a possible risk is simply a “risk”. The topic of the importance of words came back to this phase of hearings. It became a bit of a technical discussion of lawyer-speak but was a useful warning shot to demonstrate the Chair’s familiarity with the issue of risk emergence.

 

The presentation moved to the possible failure to give due regard to emerging evidence from the late 1970s and early 1980s about hepatitis to the matter of HIV-AIDS coming to the fore. This added to the “confusion” about blood borne viruses. Again, the risk was initially assessed as low. The sense of relief that Scotland was mostly self-sufficient was short-lived due to the Edinburgh 17 cases. There appears to have been an attitude of over-confidence in the cleanliness of the Scottish blood supply. The “no conclusive proof” line-to-take was attributed as coming from the UK Government (… so blame them for that one).

 

The difficult matter of “consent” was next on his agenda. There was a breach of patients’ autonomy on consent matters. It seems to be confirmed, he said, that a lack of informed consent was as described by patients, with “complacency” being a possible factor. Risks were not adequately explained. Mr Bowie drew a number of conclusions arising from this collective of evidence, some of which sounded to this writer to be splitting hairs and seeking to defend by detailed dissection of the statements of various people. “For the avoidance of doubt” Mr Bowie said, it was irrelevant to suggest what patients might have decided about their care if they have been fully apprised of the risks of treatment since the key issue was the duty to inform their patient and obtain that person’s consent.

 

On AIDS, Mr Bowie had a similar set of suggested conclusions, including again the uncertainty of scientific knowledge, the assumptions about what patients would have already known, the patients raising questions, the fact of donors but not patients being given leaflets, and more. The boards had charged Mr Bowie to again tender their apology for issues of not obtaining consent. It should not have happened.

 

Shifting to the shift in preferred treatments towards concentrates and away from cryoprecipitate, it was asserted that it became a “Hobson’s Choice” for patients and clinicians. Cryo was not without some viral risks, but its continued use should have been “an option that merited consideration”. AIDS was an even less certain issue for informing treatment decisions. Cryo should have been a more emphasised option, and so this was a further matter for apology. The recognised benefits of concentrates may have too strongly influenced clinicians treatment decisions.

 

The evidence related to Yorkhill children’s hospital pointed to a wrong and “catastrophic” policy pursued by Dr Willoughby. This was in stark contrast to the positions taken by Ludlum, Forbes, et al in Edinburgh and Glasgow (… at least in this one respect). The boards accept the Yorkhill issue as sorrowful and remorseful. On the matter of “8Y” it was acknowledged by the boards as “regrettable” what happened. The importance of treatment guidelines was highlighted, particularly for clinicians such as junior doctors. The administrative separation between Scotland and the UK as a factor was also regrettable (… of course, this was all pre-devolution.)