Royal Hospital for Children and Young People: independent assessment of governance arrangements

4 Design specifications and air ventilation standards

To determine the extent to which the design specifications with regard to air ventilation complied with the SHTM standards, and specifically SHTM 03-01, being the ventilation for healthcare premises standards, at each stage of the Project. It was agreed that KPMG would not undertake a technical review in this respect but confirm that the Standards were included within the design specifications.

4.1 Introduction

4.1.1 In this Section, we have considered the extent to which the design specification with regard to air ventilation included reference to, and complied with, the SHTM at each stage of the Project. Our consideration of this includes:

a) At Section 4.2, we summarise the standards relating to air ventilation which were relevant to the Project and provide the relevant extracts from SHTM;

b) At Sections 4.3 to 4.5 , we consider whether the design specifications with regard to air ventilation were referred to at each stage of the key stages of the Project; being:

• Invitation to Participate in Dialogue (“ITPD”) (the tender process);
• Financial Close, being the signing of the Project Agreement; and
• The Settlement Agreement.

c) At Section 4.6, we detail the process that was to be followed in order to make any changes to the Project Agreement and in turn to designs of the air ventilation;

d) At Section 4.7, we provide details on the ITs role in the Project, specifically in respect of its involvement in monitoring the works for compliance with the BCR, and in effect the design specifications; and

e) At Section 4.8, we provide details of assurances provided by IHSL in January 2019 in respect of compliance with SHTM 03-01.

4.2 SHTM standards

4.2.1 HFS provides operational guidance to NHS Scotland bodies on a range of healthcare facilities topics. As part of its role, HFS issues guidance publications known as “SHTMs”. SHTMs give comprehensive advice and guidance on the design, installation and operation of specialised building and engineering technology used in the delivery of healthcare. The focus of SHTM guidance remains on healthcare-specific elements of standards, policies and up-to-date established best practice. They are applicable to new and existing sites, and are for use at various stages during the whole building lifecycle.

4.2.2 SHTM 03-01 ‘Ventilation for healthcare premises’ is the relevant guidance which is pertinent to the ventilation issues and the Delay. Part A ‘Design and validation’, of the latest version of SHTM 03-01^[45], provides details of the recommended air change rates for each component of a hospital^[46].

4.2.3 Section 7 ‘Specialised ventilation systems’, of the latest version of SHTM 03-01, contains design information for a range of healthcare ventilation applications, listing ‘critical areas and high-dependency units of any type’ as being one of the departments that require a degree of specialised ventilation^[47]. This section of SHTM 03-01 describes how ventilation systems should be designed for various departments and references recommended air-change rates as being contained within SHTM 03-01 Appendix 1: Table A1 (“Appendix 1”). An extract from Appendix 1 is provided below:

Figure 1: Extract from Appendix 1: Table A1 of SHTM 03-01

4.2.4 It is noted from the above table that ‘Critical Care Areas’ require 10 ac/hr. As set out in Section 3 of this Report, the source of the Delay was rooms within the Critical Care department of the Hospital not meeting this required 10 ac/hr.

4.2.5 We have been unable to identify any definition of ‘Critical Care Areas’ within the SHTM. It is therefore unclear, from SHTM alone, if the definition of Critical Care Areas within SHTM 03-01 includes, for example, single rooms and clean utility areas located within Critical Care, or if these fall under the different recommended air change rates shown in the table above. However, we note that the Project Agreement documentation, and specifically the BCR, referred to in paragraph 4.3.8 below, includes clinical output based specifications for each department. The specifications relating to Critical Care (the “Critical Care Clinical Output Based Specifications”) include references to the areas included in Critical Care with, for example, references to single cubicles, four bedded bays, isolation cubicles and clean and dirty utilities.

4.2.6 We also note that SHTM 03-01 refers to, “Specific requirements for hospital departments” and states “Specific requirements for individual spaces and departments are included in the Health Building Notes (HBNs) and Activity Database (ADB) A-Sheets, or Scottish Health Planning Notes (SHPNs) ^[48]”.

4.2.7 As previously mentioned, the Delay itself was as a result of both the ‘single bed cubicle’ and ‘four bedded bays’ within Critical Care being identified as non- compliant with the air change rates set out in SHTM 03-01. Individuals at NHSL are of the view that SHTM 03-01 is predominately focused on an adult care environment and does not explicitly consider the different ways in which children’s hospitals manage patients in Critical Care, for example, through the use of four-bedded bays to cohort patients with the same infection at times when admission rates are high and Critical Care support required may exceed isolation room capacity.

4.2.8 Without clarity on the definition of Critical Care Areas in the Standards as a stand-alone basis and, in particular, in respect of how four-bedded bays should be classified under SHTM 03-01, the relevant air change rate for particular rooms could be open to interpretation.

4.2.9 NHSL are of the view that such four-bedded bays should be included under ‘Critical Care Areas’ in the table at Appendix 1 of SHTM 03-01, and included reference to four-bedded bays in their Critical Care Clinical Output Based Specifications. However, an alternative interpretation from the Standards alone could lead to them being classified under a ‘General Ward’, which carry different recommended air change rates.

Previous standards

4.2.10 The SHTM standard that preceded SHTM 03-01^[49] was SHTM 2025. Through review of the documents we have been provided in relation to SHTM 2025, we cannot see any reference to any recommended air change rates for Critical Care areas.

4.3 ITPD stage (March 2013)

4.3.1 The ITPD issued to bidders, dated 11 March 2013, makes reference to the specific room requirements for the Hospital (the “Room Information”) being detailed in a number of documents, including^[50]:

a) The BCR;

b) The EM;

c) The Schedule of Operational/Design Notes;

d) The Equipment Schedule;

e) The Equipment Responsibility Matrix;

f) The Draft Schedule of Accommodation; and

g) The Operational Functionality elements of the Reference Design.

4.3.2 As part of their response to the ITPD, bidders were required to develop ‘Room Data Sheets’ (“RDS”) for 11 of the rooms within the Hospital. None of these rooms appear to be located in the Critical Care area of the Hospital^[51]. The RDS were to incorporate the Room Information, as detailed above. RDS for the remaining rooms were to be developed by the preferred bidder prior to Financial Close.

4.3.3 We understand from NHSL that, of the documents listed above, it is only the BCR and the EM that refer to SHTM 03-01 and/or Critical Care. Details of these documents are set out below.

Board’s Construction Requirements

4.3.4 The BCR are the NHSL Board’s detailed requirements for the Project. The BCR included within the ITPD^[52] make a number of references to SHTMs, as detailed in the following paragraphs.

4.3.5 Section 2.3 (NHS Requirements) of the BCR states that, “unless the Board has expressed elsewhere in the Board's Construction Requirements, a specific and different requirement, the Facilities shall comply with but not be limited to the provisions of the NHS Requirements…”^[53]. These NHS Requirements include the following in relation to SHTM:

“v. Health Technical Memoranda & Scottish Health Technical Memoranda (HTM & SHTM)

Project Co shall, in relation to all SHTM and all HTM (except HTM where an SHTM exists with the same number and covering the same subject matter): take fully into account the guidance and advice included within such SHTM and HTM; ensure that the Facilities comply with the requirements of such SHTM and HTM; and adopt as mandatory all recommendations and preferred solutions contained in such SHTM and HTM”^[54].

4.3.6 The BCR^[55] makes direct reference to SHTM 03-01 on a number of occasions within the Project Agreement, specifically in Sub-Section C:

a) Section 5.2 Infection Prevention & Control:

“Project Co shall ensure all aspects of the Facilities allow for the control and management of any outbreak and/or spread of infectious diseases in accordance with the following:

…

f) Ventilation in Healthcare Premises (SHTM 03-01)”^[56]

b) Section 8.1 Minimum Engineering Standards:

“The following is a non-exhaustive list of SHTM’s, HBN’s and HTM’s applicable to the Facilities:

…

h) SHTM 03-01: Ventilation in Healthcare Premises“^[57]

c) Section 8.5.3 Air Quality, i. Internal:

“Particular attention shall be given to the risk of cross infection within the hospital… Project Co shall demonstrate through submission of information to the Board as Reviewable Design Data for review by the Board…how the proposals facilitate the control and management of an outbreak and spread of infectious diseases, and in particular shall comply with the requirements of SHTM 03-01…”^[58]

d) Section 8.7.8 (Mechanical Ventilation & Air Conditioning) also makes direct reference to SHTM 03-01 and how the “Project Co shall demonstrate how the proposals facilitate the control and management of an outbreak and spread of infectious diseases in accordance with SHTM 03-01…”^[59].

4.3.7 Specific reference is also made to ventilation of ‘isolation rooms’ as being required to be designed and installed in accordance with SHTM 03-01^[60].

4.3.8 Subsection D of the BCR sets out a number of specific clinical requirements, including the Critical Care Clinical Output Based Specifications^[61]. We note that the Critical Care Clinical Output Based Specifications refer to “SHTM 2025: Ventilation” as containing ‘design guidance’ for the Project^[62], as opposed to the updated standard, SHTM 03-01. As referred to in Section 4.2.10, these previous standards did not specify air change rates recommended for Critical Care areas.

4.3.9 Subsection B of the BCR defines the EM as detailing “…the room environmental condition requirements of the Board required within each department / unit / space / area…”^[63]. Sub-Section C, Section 8, states that the “Project Co shall provide the Works to comply with the Environmental Matrix”^[64]. We have provided further details on the EM below.

Environmental matrix

4.3.10 An EM was provided as part of the Room Information within the ITPD^[65] (the “ITPD EM”) from which the bidders were asked to develop their RDS and their design specifications.

4.3.11 The bidder’s technical submission requirements contained within the ITPD referred to the EM in the following context:

“Whilst Bidders are required to undertake their own design, the Board has provided a draft Environmental Matrix as part of the ITPD documentation. Bidders must confirm acceptance of the Board’s Environmental Matrix, highlighting any proposed changes on an exception basis”^[66].

4.3.12 The EM details environmental standards (for example, temperature, heating, ventilation) on a room-by-room basis. The EM consists of a cover sheet ‘index’ showing the different department codes, and references the page on which the associated details can be found. Department ‘B1’ is listed as ‘Critical Care / HDU / Neonatal Surgery’.

4.3.13 Following the index, there is a page of guidance notes which include^[67]:

“HDU bed areas - Design Criteria - HBN 57 gives specific guidance as well as SHTM 03-01 - esp Appendix 1 for air change rates - 10ac/hr Supply…”

“Critical Care Areas – Design Criteria – SHTM 03-01 – esp Appendix 1 for air change rates – 10 ac/hr Supply…”

4.3.14 The main body of the EM includes tables detailing, for each department and each respective room, the corresponding environmental standards. These include, among other things, details of the temperature, heating, cooling and ventilation (including supply air change and pressure).

4.3.15 Despite the guidance note, referred to at paragraph 4.3.13 above, advising that all Critical Care Areas should be in accordance with SHTM 03-01 and, specifically, 10 ac/hr supply, we identified that the ITPD EM table for Critical Care (Section B1 – page 5^[68]) includes the following types of rooms - ‘Single Bed Cubicles’, ‘Open Plan Bay (4 bed)’ and ‘Open Plan Bay (3 cots)’, all of which are detailed with supply air change rates of 4 ac/hr.

4.3.16 The ITPD EM was therefore inconsistent between the guidance notes and detailed content contained within it. The detailed content which stated supply air change rate of 4 ac/hr was also inconsistent with the Critical Care air change rate of 10 ac/hr detailed in SHTM 03-01. We understand the current Project Team are not aware of why the document states 4 ac/hr.

4.3.17 We understand from NHSL that, as part of the process of developing the capital- funded project (see paragraph 3.2.1 ), documentation relating to the design and build was produced. We understand that an EM was developed by the Design Consultant used for this capital scheme and a version of this was shared as part of the tender process^[69].

4.3.18 We have seen a ‘first issue’ of an EM, which we understand was part of the capital scheme, which is dated 9 September 2010 and is described as ‘Royal Hospital for Sick Children – Edinburgh, HK Doc - RDS Environmental Matrix’, which within the ‘B1 – Critical Care / HDU / Neonatal Surgery’ section refers to ‘open plan bay (4 beds)’ as having 10 ac/hr and balanced pressure^[70]. We note, however, that the ITPD EM is entitled ‘Royal Hospital for Sick Children and Department for Clinical Neurosciences – Edinburgh Reference Design Envisaged Solution - RHSC / DCN RDS Environmental Matrix’^[71]. The version control within the ITPD EM shows the ‘first issue’ of this document as being dated 3 February 2012 and not 9 September 2010 as referred to above^[72]. However, from the dates detailed within them, it would appear that these are two different documents, but that the IPTD EM could be an iteration of the ‘first issue’ document^[73] provided to us.

Preferred bidder letter

4.3.19 A letter was issued by NHSL to IHSL on 5 March 2014, advising that their final tender, submitted on 13 January 2014, had been accepted (the “Preferred Bidder Letter”)^[74].

4.3.20 As part of the Preferred Bidder Letter, IHSL was asked to “…use its best endeavours to diligently develop…”, among other things, Project Co proposals and RDS’^[75]. These technical schedules were to be “…finalised in conjunction with the Board to ensure that both parties are satisfied that these technical Schedules robustly address[ed] the Board’s Construction Requirements…”^[76].

Period between issue of Preferred Bidder Letter (March 2014) and Financial Close (February 2015)

4.3.21 During the period between NHSL issuing the Preferred Bidder Letter and Financial Close, we have seen evidence of ongoing correspondence between NHSL and Project Co in respect of comments on the EM. We understand from Mott MacDonald and NHSL that, when the ‘Board’ has been referred to in the below correspondence, this refers to comments from both themselves and the Project Team and not the ultimate NHSL Board. This correspondence includes the following:

a) Comments provided to Project Co^[77] referred to as “…initial technical comments on draft 1 of the Environmental Matrix”, dated 13 October 2014^[78].

This document included 12 comments, one of which specifically refers to ventilation standards in respect of bedrooms^[79]:

“Bedrooms 4ac/hr, SHTM says 6 ac/hr Bedrooms have no extract

Bedroom en-suites 10 ac/hr, SHTM says 3 ac/hr

Bedrooms stated as positive pressure, SHTM says 0 or –ve pressure…”^[80].

b) IHSL responded to the above comments on 27 October 2014. Specifically, in respect of comment 7 detailed above, IHSL stated:

“The scheme is based on the Reference design throughout which is essentially mixed mode with openable windows and 2/3rds mechanical supply air to all bedrooms. This gives physiological benefits with access to fresh air control by user and obvious Energy benefits. We have amended the environmental schedule to show the room being balanced which is provided by the opening window” ^[81].

c) An email from Mott MacDonald (on behalf of NHSL) to Multiplex^[82], among others, attaching the notes from a meeting held on 11 November 2014. The notes attached state:

"Project Co shall update the Environmental Matrix to reflect the following Board comments"^[83].

A specific comment relating to bedroom ventilation was:

“Detailed proposal awaited on bedroom ventilation to achieve balanced/negative pressure relative to corridor.”^[84]

d) On 19 January 2015, Multiplex emailed sketches of the proposed pressure regime to Mott MacDonald and NHSL^[85]. A report was also provided to Mott MacDonald and NHSL detailing Project Co’s review of air movement within single bedrooms under various ventilation scenarios^[86]. Mott MacDonald responded to the email containing the sketches with a number of comments, including:

“The critical factor from SHTM 03-01 for infection control will be the resultant pressure within the room being balanced with or negative to the corridor”^[87].

4.3.22 We note that throughout the above correspondence there is reference to ventilation and SHTM 03-01. However, there is no specific reference to Critical Care rooms and the focus of the discussions appears to have been centred on the pressure regime in the rooms, rather than air change rates.

4.4 Project Agreement stage (February 2015)

4.4.1 The Project Agreement, dated 12 and 13 February 2015, states that the overall responsibility of Project Co is to carry out the works “so as to procure satisfaction of the Board’s Construction Requirements”^[88]. Details of the BCR contained in the Project Agreement are detailed in paragraph 4.4.4 below.

4.4.2 The Project Agreement also includes a list of Reviewable Design Data (“RDD”) and the status of the approval of such data as at Financial Close. Further details on this are provided in paragraph 4.4.5 below.

4.4.3 The RDD relevant to air change rates is included within the RDS and the EM. We have provided details of the RDS and EM in paragraphs 4.4.8 to 4.4.12 below.

Board Construction Requirements

4.4.4 The references to SHTM 03-01 within the Project Agreement BCR^[89] are consistent with those in the BCR provided at the ITPD stage, as detailed in paragraph 4.3.6 above. We note that the reference to SHTM 2025 in the Critical Care Clinical Output Based Specifications also remained in the Project Agreement version.

Reviewable Design Data

4.4.5 The process for RDD is detailed in Schedule Part 8 (review procedure) of the Project Agreement. RDD is classified as either approved or non-approved based on the classification level ascribed by NHSL Board Representatives^[90]. Level A (no comment) or Level B (proceed subject to amendment as noted) are in effect approved (collectively “Approved RDD”), whereas Level C or Level D are classified as non-approved^[91].

4.4.6 Appendix 1, Table A, of Schedule Part 8 (review procedure) of the Project Agreement provides details as to the meaning of the aforementioned approval levels against each category of RDD. The table refers to the Level A and Level B approvals for RDS’ as follows:

“endorsement of any room data sheet means that Project Co may proceed to construct in accordance with the Submitted Item and that the Board is satisfied that the design and other information in the relevant room data sheet satisfies Operational Functionality.”^[92]

4.4.7 NHSL has advised us that reviewing such documents for ‘operational functionality’ did not, in their opinion, consist of a technical review as to the extent to which they were in compliance with the Standards.

Room Data Sheets and Environmental Matrix

4.4.8 Relevant design data included within the Project Agreement includes the RDS and an updated version of the EM^[93] (“Project Agreement EM”). The RDS contain environmental data for each room, including supply air change rates. We understand that the Project Agreement EM was a summary of the RDS.

4.4.9 We note that the Project Agreement EM format and design is similar to the ITPD EM, with the same index and a page of guidance notes. As with the ITPD EM, the Project Agreement EM guidance notes refer to Critical Care Areas design criteria being SHTM 03-01 and “10ac/hr Supply” ^[94]. However, again consistent with the ITPD EM, included within the ‘B1’ section of the Project Agreement EM^[95] (referred to as ‘Critical Care / HDU / Neonatal) are rooms referred to as ‘Single Bed Cubicles’, ‘Open Plan Bay (4 bed)’ and ‘Open Plan Bay (3 cots)’, all of which are detailed with a supply air change rate of 4 ac/hr. The Project Agreement EM therefore remained inconsistent between the guidance notes and detailed content contained within it. The detailed content which stated a supply air change rate of 4 ac/hr was also inconsistent with the Critical Care air change rate of 10 detailed in SHTM 03-01.

4.4.10 We note that, whilst the Project Agreement EM guidance notes refer to Critical Care Areas design criteria being SHTM 03-01 and “10ac/hr Supply”^[96], that a later version of the EM, dated 26 November 2015, contains guidance notes that state “10ac/hr Supply for isolation cubicles”^[97]. We understand from NHSL that the addition of the words ‘for isolation cubicles’ in this version of the EM was never flagged as a change to the Project Team. We note that this version of the EM contains other parts of the guidance notes in red. This small change in the text had the effect of removing the inconsistency between the guidance notes and the detail in the matrix, as referred to above.

4.4.11 We note that the Project Agreement EM was classified as ‘non-approved’ at the date of the Project Agreement, with the Board requesting that Project Co update the EM to reflect a number of comments, including “Detailed proposal awaited on bedroom ventilation to achieve balanced/negative pressure relative to corridor”^[98]. We have seen initial reference to this comment in November 2014, in an attachment to an email from Mott MacDonald to Multiplex^[99] (see paragraph 4.3.21 above). We note that this comment remained in all versions of the EM provided to us, from the Project Agreement EM^[100] to the EM included as part of a Settlement Agreement in February 2019^[101] (see Section 4.5 for further details of the Settlement Agreement).

4.4.12 Whilst the EM was classified as ‘non-approved’ under the RDD process at the point of Financial Close, we have not identified any Board comments within the RDD document specifically relating to air change rates and Critical Care.

4.5 Settlement Agreement (February 2019)

4.5.1 As set out in paragraph 3.3.7, on 22 February 2019, a Settlement Agreement was signed by NHSL Board and IHSL. The Settlement Agreement contained a schedule detailing 73 items^[102] which had been in disagreement between the parties and the agreed resolutions for each issue.

4.5.2 Two of these agreed resolutions were pertinent to the Delay and related to disputes between the parties as to the extent to which bedroom ventilation was in compliance with SHTM 03-01. Both of the resolutions in effect resolved to deviate from recommendations included within SHTM 03-01. Details of the agreed resolutions for these were as follows:

a) ‘Item 7 – 4 bed ventilation’: for “14 no 4 bed rooms to be balanced or negative to the corridor at 4 ac/hr”^[103]; and

b) ‘Item 13 – Single Bedroom Ventilation air changes’^[104]: to decrease “the mechanical air change ventilation rate within single bedrooms from 6 air changes per hour (6 ac/hr) to 4 air changes per hour (4 ac/hr)”^[105].

4.5.3 We have commented on the above resolutions further in Section 5.3 below.

4.6 Changes to the Project Agreement

4.6.1 In projects of any nature, it will often become necessary for changes to be made to design plans, which in turn may impact compliance to a contractual requirement. In this Project, the design and build were required to be in compliance with the BCR which refer to SHTM 03-01, among other standards. In effect this makes compliance with SHTM 03-01 mandatory. As such, in order to ensure changes were adequately reviewed and agreed upon, a process to make any required changes was necessary.

4.6.2 During the tender process, bidders could put forward proposed ‘derogations’, being proposed changes to the proposed project agreement (including the BCR). At Financial Close, any accepted derogations were then incorporated into the contractual drafting of the BCR. From the NHSL’s perspective, these matters were assumed closed or completed at Financial Close.

4.6.3 Following Financial Close, any deviations from the BCR and the signed Project Agreement, proposed by Project Co, could only be initiated and approved through the Project Co Change (“PCC”) process. A PCC was defined in the Project Agreement as being, “a Change that is initiated by Project Co by submitting a Project Co Notice of Change to the Board pursuant to Section 5 (Project Co Changes) of this Schedule Part 16 (Change Protocol)”^[106].

4.6.4 We understand from the Project Agreement^[107] and discussions with NHSL that the PCC process was as follows:

a) If Project Co wishes to introduce a PCC, it shall serve a Project Co Notice of Change (“PCNOC”) to the NHSL Board;

b) The PCNOC shall set out the proposed PCC in sufficient detail to enable the NHSL Board to evaluate it in full. It should specify Project Co’s reasons for proposing the PCC, indicate any implication of the PCC, indicate if any savings will be generated by the PCC, and request the NHSL Board to consult with Project Co with a view to deciding on whether to agree to the PCC and, if so, what consequential changes the NHSL Board requires as a result;

c) The NHSL Board shall evaluate the PCNOC in good faith, taking into account all relevant issues, including, among other things, whether the PCC “may affect the quality of the Services and/or the Works or the likelihood of successful completion of the Works and/or delivery of the Services (or any of them)”^[108];

d) As soon as practicable after receiving a PCNOC, the parties should meet and discuss the matters referred to in it. We understand from NHSL, that on

receipt of a PCNOC, the Project Team and its advisors (including Mott MacDonald and MacRoberts) would review and comment on it. Comments and amended versions would then pass between Project Co and the NHSL Board, as required; and

e) If the NHSL Board accepts the PCNOC (with or without modification), the parties shall consult and agree the remaining details as soon as practicable. Upon agreement, the NHSL Board shall issue a notice confirming the PCC, which shall set out the agreed details.

4.6.5 As part of the signing of the Settlement Agreement in February 2019, the resolution of a number of issues was reached. This incorporated a number of changes which had already been raised through the aforementioned PCC process, but had yet to be approved, along with further areas which remained in dispute and which were resolved in the Settlement Agreement. The agreed resolutions which had not been approved prior to the Settlement Agreement were termed ‘derogations’. The agreed resolutions included, among others, two which were pertinent to the Delay. We have provided further details of these, and the professional and technical advisors involved in the approval of them, in Section 5.3 below.

4.7 Independent Tester

4.7.1 As part of the ITPD, an IT was required to be appointed as an independent resource to provide inspection review and certify completion in respect of the Project.

4.7.2 The IT was jointly instructed by the NHSL Board and Project Co as part of the Project Agreement. The scope of work of the IT^[109] included, among other things:

a) Providing monthly reports and undertaking regular inspections during the works^[110];

b) Providing details of any tests carried out by Project Co, together with results obtained^[111];

c) Reporting on the completion status of the Project, identifying any work that was not compliant with the BCR, Project Co Proposals’, Approved RDD and/or the Completion Criteria^[112];

d) Monitoring the works for compliance with the BCR and Project Co’s Proposals and compliance with law^[113]; and

e) Monitoring the detailed working drawings and specifications for a sample number and type of rooms which, in their professional judgment, is appropriate to be selected by the IT to verify that they comply with the Approved RDD^[114].

4.7.3 In respect of identifying work that was not compliant with BCR, the IT stated that in its view the ventilation flow rates were compliant with the BCR and in particular the EM and RDS. We understand from the IT that, the flow rates are derived by the design consultant from the air change rates specified in the EM and RDS.

4.7.4 We understand from the IT that it reviewed the testing and commissioning results for compliance with the EM and RDS, as required by the Completion Criteria detailed in the Project Agreement^[115]. The IT used the EM as the basis for this review process, as this information is the referenced criteria for compliance and it was the IT’s understanding that this would have been reviewed by the NHSL Board.

4.7.5 Specifically, in respect of SHTM 03-01 and air change rates, we understand from the IT that, it physically witnessed a proportion of the commission testing of the flow rates, as undertaken by Multiplex’s specialist sub-contractors, and reviewed the results of all the tests that were completed. We understand from the IT that, in accordance with its scope of service, it did not physically test any systems but reviewed the following:

a) That the testing methodology was in accordance with CIBSE^[116] commissioning code C;

b) That the equipment that was used for testing flow rate and velocity was within certification/calibration test dates;

c) That the testers were correctly recording the figures; and

d) That the flow rates and pressure were in accordance with the design of the system itself.

4.7.6 The IT advised us that the design flow rates were used as part of the design process and, as such, the IT would not be expected to replicate that design process or reverse it to obtain the actual air change rates.

4.7.7 The actual calculation of air change per hour rates was considered by the IT to be a design function and, as such, outside their scope of work.

4.7.8 Following discussions with the IT, and from reviewing a sample of the monthly reports produced by the IT, we note that, whilst there was reference to other ventilation issues prior to April 2018, there was no reference to any ventilation issues specifically in respect of four-bedded rooms until April 2018. The IT key issues report dated April 2018^[117] states that the issue (no. 212) was raised in 2016, details of which are as follows:

“The IT understands that NHS Lothian and Multiplex are currently discussing an arrangement by which 14 of the 4 bedded rooms would receive negative pressure to the corridor ventilation systems. The IT is awaiting confirmation of this agreement in a format that would take preference to any other stated requirement.”

4.7.9 Issue no. 212, as set out above, remains in the subsequent IT reports each month, with the September 2018 report including an additional explanation that Multiplex were “…going to forward on the Aconex Transmittal document to progress close out”^[118]. We understand that the September 2018 report was the last report issued by the IT and that issue no. 212 was eventually rolled-up as part of the Settlement Agreement.

4.8 Compliance assurance from IHSL (January 2019)

4.8.1 In a letter dated 31 January 2019, a Project Co representative for IHSL, provided their responses to a number of queries raised by the NHSL Board regarding assurances in respect of plant rooms and ventilation systems. Specific assurance had been sought by the NHSL Board for IHSL to provide assurance that “All critical ventilation systems [to be] inspected and maintained in line with 'Scottish Health Technical Memorandum 03-01: Ventilation for healthcare premises”^[119]. The IHSL’s Project Co representatives response to this was “Construction: - All ventilation systems have been designed, installed and commissioned in line with SHTM 03-01 as required, systems are maintained in such a manner which allows handover at actual completion to meet SHTM 03/01 standards” ^[120].

4.9 Summary

4.9.1 Throughout all stages of the Project we have seen references made to the requirements of the Project Co to adhere to SHTM, including specifically, SHTM 03-01 relating to ventilation systems.

4.9.2 Our work has identified issues within the EM, including inconsistencies with SHTM and discrepancies within the document itself. Specifically:

a) The version of the EM document provided by NHSL to bidders as part of the tender process, and referred to in the BCR, as detailed above, included reference to both the single bed cubicles and four-bed rooms in Critical Care as requiring 4 ac/hr. We understand this was not in compliance with SHTM and should have been 10 ac/hr. This reference remained in subsequent versions of the EM; and

b) The guidance note at the front of the document provided at the tender and Financial Close stages of the Project suggested that all Critical Care Areas should be in accordance with SHTM 03-01, being the relevant part of SHTM relating to ventilation, and “10ac/hr Supply”^[121]. This is inconsistent with the content of the EM as detailed above. We note that, this inconsistency appears to have been removed after Financial Close by the insertion of the words ‘for isolation cubicles’^[122], suggesting that only ‘isolation cubicles’ in Critical Care should have an air change rate of 10 ac/hr. However, we were informed by NHSL that this change was made by the Project Co and was not flagged to NHSL by the Project Co (see paragraph 4.4.10 for further details). Despite this change, the EM itself still referred to single bed cubicles and four-bed rooms in Critical Care as requiring 4 ac/hr, which we understand remained not in compliance with SHTM and should have been 10 ac/hr.

4.9.3 We have not been instructed to consider how the inconsistency made its way into the initial EM. However, notwithstanding contractual obligations, it appears that there has been confusion between the parties as to the application of these Standards. This appears to have stemmed from a document which was contained within the tender documentation, a version of which was used throughout the Project, which included details on the environmental specifications of the Hospital, the EM. Elements of the EM were inconsistent with SHTM 03-01 from the tender process (which commenced in late 2012) onwards.