On the record

“Long-awaited” and “overdue” were two of the words that peppered much of the media coverage that followed the publication of the Vale of Leven Inquiry’s report last month.

The comprehensive report forensically examines the events and circumstances that led to “the serious personal and systemic failures” that it found contributed to the deaths of 34 patients from Clostridium difficile infection (CDI) at the Vale of Leven hospital between January 2007 to 31 December 2008.

It is “a very thorough” report that “leaves no stone unturned”, Inquiry Chairman, Lord MacLean tells me. 

And yet, while he says he was not looking for approbation, he admits to being disappointed that there was not more acknowledgement by the press that he and his team were not “laggard” in their persistence to follow the remit they had been set.

“The resentment is quite deep, actually. This ‘long-awaited report’. It was only ‘long-awaited’ because she [Nicola Sturgeon] didn’t take my advice.”

In 2009, the then Cabinet Secretary for Health and Wellbeing Nicola Sturgeon contacted Lord MacLean and asked him to take over the public inquiry after the previous chair, Lord Coulsfield, stood down due to ill health. Announcing her new choice, Sturgeon praised MacLean’s “wealth of experience” – his previous public appointments include chairing the Billy Wright inquiry in 2005 and he was also one of the judges at the Lockerbie Trial at Camp Zeist – which she said “will ensure the inquiry is conducted methodically and meticulously”.

“What she wanted me to do was to provide a short sharp inquiry and she expected a report and recommendations on her desk by October 2010,” MacLean explains.

“In light of my previous experience as chairman of two other inquiries and membership of another, none of which had any time restriction, I demurred to such a time limit. I said I didn’t consider it possible to fulfil the terms of a wide remit within that timescale and I preferred the time limit of as soon as possible. Well, she ignored that. And I describe that as a mistake in the report, which it was.”

MacLean confesses to feeling “very resentful about this”.

“This was an impossible task, as I pointed out to her, given the extent of the remit. It was wrong, it was a mistake, because it raised everybody’s expectations that we would report in a year. And, frankly, when you see what we did produce in fulfilment of the remit, it was just not possible. She ignored that advice and the result is we have been unfairly described as effectively having been dilatory. That is not right and I want the record put straight.”

Setting up an inquiry, in line with the requirements of the Inquiries Act 2005, “will take time if you are going to do it properly,” he says.

The Inquiry began its careful considerations by taking evidence from relatives and survivors – who MacLean describes as “very impressive”, “restrained”, and “genuine” – and a chapter of the final report is given over to detailing their experiences.

 The discovery of some of the hospital’s patient records was another important, but time consuming, focus for the Inquiry.

 “The records were crucial and they weren’t particularly good records either. Then of course, in addition, in order to test what we found in the records we had to get expert views from people on the nursing side, medical side, infection control side and so on because it had to be tested by experts and they had to give reports, which were not cheap, and they had to come and give evidence. And all that had to be done by us.”

 The detailed oral evidence sessions concluded in June 2012 and the following month MacLean was scheduled to enter hospital for a routine operation.

“The operation was carried out successfully, the surgeon for whom I have a high regard, was not able to do it by laparoscopy but was able to do it by laparotomy, and that was fine. I was put in the high dependency unit and then I started to decline.”

For MacLean much of his knowledge about this period is hearsay as he was initially nursed in a coma. However, he later learned that his deterioration was as a result of acquiring a hospital infection and that he had become so gravely ill that his family were summoned.

“I know there was an operation on the Sunday and it stopped the rot. The tide was turned and death was averted,” he says matter-of-factly.

He continues: “I’ll put it this way, after I had recovered, I went back in with my daughter, who is a real mainstay of course, and they summoned up for me the charge nurse who had dealt with me when I was in intensive care and one of the young consultants, and I was astonished at the steady gaze they gave me. I don’t think they could quite believe that this was the person they had dealt with, which shows how serious it was.”

The irony of acquiring a hospital infection – which his surgeon later told him was MRSA – is not lost on the Chairman. He wrote in his foreword that he was not seeking to “evoke sympathy” by referring to his illness, rather that he is referencing it so as to enable him to put his gratitude to the NHS on the record, and also to pay tribute to his dedicated Inquiry team who he says “kept the show on the road” during his illness.

MacLean spent around five months in hospital and his road to recovery has been a long one. I ask if there was ever a point where he considered passing it on, but he explains that his determination to finish what he had started provided a positive focus for his recovery.

Again, however, he was disappointed by the response from the Scottish Government. His team worked hard to minimise the delay that would inevitably be caused by his illness and convalescence, and he wrote to then Health Secretary Alex Neil to explain his situation. It took nearly two months before he received a reply, he says.

“I think ultimately Mr Neil did perhaps understand the problem, but he didn’t do anything about it in terms of allaying public concern.”

A further delay was caused by the need, again as is set out in the Inquiries Act 2005, to give fair notice to individuals or organisations who will be criticised in the report and allow them a right of reply.

“One of them particularly, the board, received a lot of passages for them to comment on and they certainly did that,” explains MacLean.

His report concludes that patients who suffered from CDI at the Vale of Leven hospital were “badly let down by people at different levels of NHS Greater Glasgow and Clyde who were supposed to care for them.” 

I ask if the board cooperated fully with the inquiry and there is a long pause before he answers.

“I want to be fair,” he says after a time. “That is also a hallmark of inquiry reports. They must be fair. It is part of my job as a judge of course. 

“I think yes and no, which is not a good answer really. Because they never really understood that this was an inquiry and not litigation.”

On the day the report was published, however, the chair of the health board, Andrew Robertson, offered “a full and unreserved apology” to those affected. 

“This was a terrible failure and we profoundly regret it,” said Robertson.

“I can give the firmest of assurances that, as a result of the lessons that have been learned, this could not happen again.”

MacLean says he found the board’s statement, which was issued on the date of publication, “remarkable.” He explains that apart from the evidence from former Chief Executive Tom Divers, and a few individuals who offered apologies during their evidence sessions, the board they dealt with was “unremitting” and “defensive.”

In his response, NHS GGC Chief Executive, Robert Calderwood, said: “Re-iterating my personal apology I hope the relatives can take some comfort that the lessons learned from this outbreak have resulted in significant improvements in clinical practice, for instance, in more prudent prescribing of antibiotics. These changes have led to dramatic reductions in C-Diff infection rates not only at the Vale, but throughout the whole of NHS Greater Glasgow and Clyde and indeed across Scotland.”

When asked, MacLean says he believes it “undoubtedly” would have given family members and survivors some comfort if the board had adopted this attitude from an earlier stage.

“Had they done that earlier – it is not for me to say that they should as it is a matter for them – it is my view that it would have shortened the inquiry and cost a lot less. In other words, if they had realised that they were participating in an inquiry, which I don’t think they did, it would have taken much less time and been much less costly.”

To those family members and survivors, receiving the answers they so desperately sought is priceless. And yet, criticism of the cost of the inquiry – Dumbarton MSP Jackie Baillie who had helped family members to campaign for the Inquiry referred to its £10m cost as “eye-watering” – was another sore point. MacLean says he found the “howl of protest” about cost “unacceptable.”

“These inquiries are costly. You should know that before you start. I know of course from Billy Wright in Northern Ireland. Now, the attitude here in Scotland to cost is remarkable. I don’t think anyone raised a question about the cost of Mid-Staffs [public inquiry] with Sir Robert Francis.”

In addition to identifying failings, the final report also makes 75 recommendations, such as around infection prevention and control, nursing and medical care, antibiotic prescribing, communications with patients and relatives and death certification. Scottish Ministers “must bear ultimate responsibility for NHSScotland”, the report notes, adding that “even at the level of the Scottish Government the systems were simply not adequate to tackle effectively an HAI like CDI.” And so MacLean is glad that the Scottish Government has already accepted all of the recommendations and pledged to establish an implementation group to take them forward. New First Minister Nicola Sturgeon also unveiled that the Scottish Government will introduce a ‘duty of candour’ to protect patients from ill-treatment and will give more powers to hospital inspection teams to close wards if they have concerns over safety.

MacLean tells me “I am absolutely satisfied in my own mind and conscience that we have produced something for the future,” and he hopes it will prove a useful document for Scotland’s health service.
I ask if he was also satisfied with the reaction the report received and he becomes visibly upset recalling the day he presented it before an audience that included family and survivors.

“That is a good question, actually, because I’m very accustomed to delivering judgements in public. And I didn’t have any qualms about delivering the report in Glasgow when I did. But when I got in there and I looked up and I saw the ranks of relatives, it was very hard for me, actually. I remember it so well. The first page or so, until I got myself together, as I’m now doing, it all came back to me. Fortunately I steadied up.”

His own experience was not dissimilar from theirs, he notes. 

“Except I lived.”