NR ADRE
AU Dyer,C.
TI "Unprecedented" row delays second phase of BSE inquiry
QU British Medical Journal 1999 Feb 27; 318(7183): 558
IA http://www.bmj.com/cgi/content/full/318/7183/558
PT news
VT
Witnesses at the inquiry into bovine spongiform encephalopathy claim procedures are unfair. Will the Bristol inquiry adopt the same methods, and will witnesses again cry foul? Clare Dyer, legal correspondent, reports
Sparks have been flying behind the scenes at the inquiry into bovine spongiform encephalopathy (BSE). The bland press release issued last week by the inquiry announcing that it will not be able to report, as planned, in June 1999 and adding that it needs more time, contains little hint of the backstage drama, beyond a statement by the chairman, Lord Phillips, that "preparing for phase two is proving a more exacting process than we had anticipated, and we are anxious that it should be done fully and fairly."
The word "unprecedented" has been used to describe the row that has blown up between the inquiry and lawyers representing civil servants from the Ministry of Agriculture, Fisheries, and Food and the Department of Health. Strongly worded letters have been exchanged between the lawyers and the inquiry, and judicial review has been threatened.
Phase one of the inquiry, the fact finding exercise, has ended after evidence from more than 300 witnesses was presented over 95 days. Civil servants have objected to the "draft factual accounts" produced on the various issues, and have posted them on the internet with an invitation for corrections to be made. Witnesses claim that these accounts, far from being factual, are "value laden" and prosecutorial, contain errors of fact, and selective, and even inaccurate, quotes from documents and, thanks to technology, they have now been broadcast to the world.
The row is delaying the start of phase two, which is set to deal with "potential criticisms, clarification, and conflicts of evidence." The inquiry had planned to put "Salmon letters" - the letters that witnesses receive before they appear before the inquiry detailing the criticisms they are likely to face - on the internet, together with the witness's response, on the day the witness gave evidence.
This is now being reconsidered. Those whose conduct comes under scrutiny at official inquiries inevitably feel vulnerable, and questions about fairness come with the territory. Britons are used to the adversarial process of court cases and disciplinary hearings by regulatory bodies like the General Medical Council (GMC). Unlike inquiries, however, these have a body of formal precedent laying down strict procedural rules. Court cases and GMC hearings take place in public but few documents are publicly available, and there are tight controls over what evidence can be admitted.
The inquisitorial process of the inquiries often comes as a shock to witnesses, and it is not accompanied by the strict procedural rules that operate in the court system. Though all the inquiry chairmen emphasise that they are not presiding over a court of law, that no one is accused, and that they are merely trying to get at the truth, to the witness whose professional reputation is on the line it can feel like a court of law but without the safeguards.
The internet has also introduced a new element into the equation. Everything is instantly available to the tabloid reporter or to fellow professionals halfway around the globe. The BSE inquiry has posted transcripts of evidence and witness statements on the internet. It also has a library of all its documents which the public can consult. Even documents such as civil service memos, thought when written to be protected by public interest immunity even from scrutiny by a court, are freely available to the public. Extracts have been read out in public, ensuring that they get on the internet.
If the inquiry is being delayed because of the anger and sense of injustice felt by witnesses, can the Bristol inquiry into paediatric heart surgery at Bristol Royal Infirmary, learn anything from the experience of the BSE team?
The Bristol inquiry, which starts on 16 March and is chaired by Ian Kennedy, professor of health law, ethics, and policy at University College London, is going to adopt some of the same procedures as used in the BSE inquiry. There are plans, for example, to put transcripts of evidence and witness statements on the internet.
The Bristol inquiry's terms of reference go far beyond those of the General Medical Council's investigation of the case, which itself prompted allegations of unfairness from the doctors' lawyers. The GMC considered only whether two surgeons at Bristol Royal Infirmary and the chief executive of United Bristol Healthcare Trust were guilty of serious professional misconduct, and looked at only 53 paediatric heart operations of two types, in which 29 babies died.
The inquiry will want to identify factors in the running of the hospital and the department which allowed the tragedy to happen. Illuminating evidence may come from three Bristol consultants - two cardiologists and an anaesthetist - who refused on legal advice to give evidence to the GMC. They will not have that choice at this inquiry because it is a statutory one; it will be convened under section 84 of the National Health Service Act 1977, which gives it the power to compel witnesses to attend, to call for documents, and to imprison anyone who refuses to comply. The inquiry into the personality disorder unit at Ashworth Hospital, chaired by Peter Fallon QC, a retired circuit judge, which reported in January, was also a section 84 inquiry. The BSE inquiry, by contrast, is a non-statutory inquiry, with no powers of compulsion.
In both types of inquiry, most of the decisions about how to proceed are taken by the inquiry panel, and particularly the chairman. The Bristol inquiry, for example, has still not finalised its thinking on Salmon letters. It has not yet decided which witnesses should receive them and how they should be framed, both being issues fraught with difficulty.
A recent comment from a spokesman for the Bristol inquiry suggests that its members are aware of the delicate nature of its work and the tightrope that it is going to have to walk. The spokesman said: "Lord Justice Scott [chairman of the inquiry investigating the sale of arms to Iraq] criticised Salmon letters as excessively adversarial. Ours is an inquisitorial process. At the same time there has to be a commitment to fairness."
Whether the present furore over the BSE inquiry will provide lessons for the Bristol inquiry team remains to be seen.
ZR 0
MH Animal; *Encephalopathy, Bovine Spongiform; Human; *Internet; Policy Making; Public Health; *Public Policy
SP englisch
PO England