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

5 Professional and technical advice given to the NHSL Board

To understand what professional and technical advice was given to the NHSL Board, in particular when derogations were proposed, who agreed them and the risk assessments that were undertaken to reach a final decision.

5.1 Introduction

5.1.1 In this Section, we have provided details of the professional and technical advice given to NHSL, which was visible to the NHSL Board through the Project governance structure.

5.1.2 In particular, we have considered when derogations were proposed, who agreed them and the risk assessments that were undertaken to reach a final decision. In seeking to answer this point, in Section 5.3 below, we have focused on one of two changes to the Project Agreement that were pertinent to the Delay.

5.2 Professional and technical advisors

5.2.1 Throughout the Project, a number of advisors assisted NHSL in decision-making from a practical and clinical perspective, as well as from a technical perspective regarding designs and standards.

5.2.2 The Project Team itself consisted of technical and clinical professionals, whom we understand had many years of experience in the health sector. In addition to the Project Team, the other professional and technical advisors involved throughout the Project consisted of^[123]:

a) Medical and non-medical experts from within NHSL;

b) Mott MacDonald – external technical advisor and project manager;

c) MacRoberts – external legal advisor; and

d) IOM – an independent ventilation tester appointed on 30 May 2019.

Medical and non-medical experts from within NHSL

5.2.3 In order to assist with the development of clinical output specifications and any ongoing queries or changes throughout the Project, the Project Team had access to medical expertise within NHSL, such as the IPC team and clinical care teams for each department.

5.2.4 The IPC team had a nominated individual who worked with the Project Team. This individual was invited to the design meetings, although it was at their discretion if they attended. They were asked to comment on drawings shared with them and ongoing discussions were held with them. The IPC team members were predominantly involved to provide operational functionality advice (as referred to at paragraph 4.4.6 and 4.4.7 ), rather than to comment on technical elements, such as the specifics of SHTM 03-01.

5.2.5 The clinical care teams were involved in the development of the Critical Care Clinical Output Based Specifications for the Project (as referred to in paragraph

4.3.8 above) and also attended design meetings for their department(s). The Critical Care Clinical Output Based Specifications were initially drafted by the Project Team and then passed to the relevant clinical teams to obtain more specific input and confirmation on, for example, the types of patients going into the wards, what functions the rooms had and the specific requirements of each room. Each ward and department nominated who they were going to involve in these advisory teams. The Critical Care clinical team consisted of a lead consultant, a lead nurse and a charge nurse.

5.2.6 In addition to the clinical care teams and IPC, NHSL also had access to non- medical professionals within its workforce, such as, estates and facilities staff, along with other NHSL contractors, such as the Authorised Engineers. These individuals were available as advisors to the estates team, NHSL-wide, in order to assist with a wide range of technical design elements should the Project Team feel they required further input. We understand from the Project Team that, such input was not required on a regular basis and would be limited to ad hoc queries.

Mott MacDonald

5.27 Mott MacDonald was appointed in 2011 in order to provide project management and design services for the Project^[124]. We understand from Mott MacDonald that the design services related solely to ‘enabling works’^[125]. The ‘Post Financial Close Support Services Proposal’^[126], prepared by Mott MacDonald, specifies a “Technical Advisory and Project Management Appointment”^[127].

5.2.8 Mott MacDonald worked alongside the Project Team in order to assist in day to day and ongoing matters, including attending weekly or bi-weekly project management group meetings, as well as meetings relating to proposed PCC.

5.2.9 To this end, Mott MacDonald provided input and assistance with ongoing matters through the RDD process, such as providing comments on the EM and being on hand to support in the drafting of contractual documentation, including those containing health standard guidance, such as the BCR.

5.2.10 We understand from both Mott MacDonald and NHSL that, neither of them ever undertook a detailed review of the EM against SHTM 03-01 and that they responded on an exceptions basis, as and when operational functionality queries came to light^[128]. NHSL’s understanding of the contractual terms was that it was the Project Co’s responsibility to ensure the EM complied with the Standards.

5.2.11 We have seen evidence of the ‘Board’s’ ongoing involvement in the review of the EM both prior to, and after, Financial Close. We understand from Mott MacDonald that, the ‘Board’ in this context refers to both themselves and the Project Team and not the ultimate NHSL Board. We have seen specific comments made by the Board (including specifically comments referred to as

‘technical’) in respect of air change rates and pressure within bedrooms. An example of this is provided below:

a) Comments provided to the Project Co^[129] referred to as “…initial technical comments on draft 1 of the Environmental Matrix”, dated 13 October 2014 (being pre Financial Close) ^[130]. This document included 12 comments, one of which referred specifically to ventilation standards in respect of bedrooms:

“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…”^[131].

b) Comments were provided by Mott MacDonald (on behalf of NHSL) in an email they sent to Multiplex on 17 October 2016^[132] stating that:

“The Board have reviewed the Environmental Matrix and still has significant concerns on items that do not appear to comply with the BCR’s.

The Board notes the following general comments:

1. The Board has highlighted cells in blue and red bubble on the hard copy which require PCoreview.”

The email went on to explain that “Whilst the Board has noted general and specific comments above, the Board reminds Project Co that unless the Board has already accepted a derogation, it is Project Co’s obligation to comply with the BCR’s / SHTMS etc, and the Board not commenting, does not remove that obligation on Project Co.”

5.2.12 We note that the version of the EM with highlighted cells in blue and red^[133], includes highlighted cells relating to four-bedded bays. Some of the four-bedded bays are included in the matrix part B1 which, as detailed in the index to the EM, is ‘Critical Care / HDU / Neonatal Surgery’ (these bays being pertinent to the issue that led to the Delay). The specific NHSL comments included in the EM includes one that states, “1-b1-063 Stated as supply air 4ac/h, extract via en- suite, this room does not have en-suite facilities”^[134]. We understand from NHSL and Mott MacDonald that, this comment was from a review of the ‘operational functionality’ detailed in the EM, as referred to at paragraph 4.4.6 and 4.4.7.

However, at no point is the fact that the air change rates in this room is not in line with the SHTM 03-01 standard of 10 ac/hr noted. Project Co’s response is “room extract rate added”^[135].

5.2.13 The version of the EM referred to above was subsequently signed off by a member of the Project Team as ‘Level B’ per the RDD approval process. The covering email from Mott MacDonald (on behalf of NHSL) to Multiplex for the approval at Level B, dated 7 November 2016, states that:

“the Board have serious concerns over the upgrading Environmental Matrix to Status B considering some of the issues raised…being the same as the issues that had been raised since FC… However, as requested by Project Co, the Board has upgraded the Environmental Matrix to status B, noting the Board still does not believe the Environmental Matrix and resultant design complies with the Project Agreement.”^[136].

5.2.14 We note that, within this version of the EM, the air change rates included within the bedrooms listed in table B1^[137] (relating to Critical Care as per the index to the EM) all remain at a supply air change rate of 4 ac/hr, consistent with previous versions of the EM.

5.2.15 The last version of the EM provided to us (rev 11) was dated 25 October 2017 and signed off at Level B for operational functionality (as referred to in paragraphs 4.4.6 and 4.4.7) by NHSL on 17 November 2017. The covering email from Mott MacDonald to Multiplex notes that:

“The Board would also like to note the design for single and multibedroom ventilation design being progressed by Project Co remains non compliant and this non compliance should either be rectified, a PCo change submitted for the Board’s consideration or a dispute raised between the parties”^[138].

5.2.16 Mott MacDonald were also involved in correspondence regarding an ongoing dispute as to the bedroom ventilation pressure issues. For example, an email from Mott MacDonald (on behalf of NHSL) to an IHSL representative, cc’ing in Multiplex, on 5 June 2017^[139] explains why Mott MacDonald believed a PCC was required in respect of the changes to the pressure within four-bedded rooms and why they were of the view that the proposed design was not in line with the Standards.

5.3 Advice sought in respect of changes to the Project Agreement

5.3.1 As mentioned in paragraph 4.5.2 above, two of the agreed resolutions, which formed part of the Settlement Agreement, were pertinent to the Delay in that they impacted the ventilation regime and in turn its compliance with SHTM 03-01.

Details of the agreed resolutions for these were as follows:

a) Item 7 – 4 bed ventilation: agreed resolution was for “14 no 4 bed rooms to be balanced or negative to the corridor at 4 ac/hr”^[140]; and

b) Item 13 – Single Bedroom Ventilation air changes^[141]: The agreed resolution was 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)” ^[142].

5.3.2 There are interconnectivities in the history and context surrounding both of these agreed resolutions, which is described in the ‘background to the agreed resolution’ Section below. However, for the purposes of this Report we have focused on the detail of one of the agreed resolutions, Item 7 above, in order to illustrate the professional and technical advice sought in respect of it. Item 7 has not been previously approved through the PCC process and was therefore referred to as a ‘derogation’. We have used this terminology when explaining the details of it below.

5.3.3 The Item 7 agreed resolution specifically relates to changes to the pressure regimes in the 14 four-bedded rooms, however the wording used in the agreed resolution also refers to an air change rate at 4 ac/hr.

5.3.4 Of these 14 rooms, four of them were located in Critical Care. These were four of the rooms identified by IOM in their report dated 15 July 2019, along with the single bed cubicles, as not being in compliance with SHTM 03-01, and specifically the required 10 ac/hr rate, ultimately leading to the Delay in the Hospital opening.

5.3.5 All versions of the EM provided to us, which detailed the air change rates being applied to each respective room within the hospital, referred to an air change rate of 4 ac/hr for the Critical Care bedrooms, notwithstanding the guidance note in the IPTD EM and Project Agreement EM versions (referred to at paragraph 4.4.10) which referred to an air change rate of 10 ac/hr. Therefore this agreed resolution in the Settlement Agreement did not in effect ever change the air change rate that had been detailed in the EM, albeit it was in effect, inadvertently, ‘approving’ an air change rate in these rooms of 4 ac/hr.

Background to the agreed resolution

5.3.6 As mentioned above in paragraph 4.3.22 , we have seen evidence that issues with ventilation in respect of bedrooms, albeit not specific to single or multi-bed rooms, were raised by the Board^[143] as far back as October 2014. We understand from conversations with NHSL and Mott MacDonald that, as a result of these comments having been made, there were ongoing discussions relating to ventilation design. From the evidence of the continued correspondence between the Project Team and Project Co that we have been provided, there is no direct reference to four-bedded rooms until September 2016. Prior to this all references had been made to ‘bedrooms’ or ‘single bed rooms’.

5.3.7 Project Co raised two derogation requests, dated May and July 2016 respectively^[144], which specifically referred to single bedrooms. Mott MacDonald’s response on behalf of the ‘Board’^[145] in September 2016^[146] rejected the derogations and, whilst the derogations referred only to single bedrooms, NHSL’s response included a specific reference to a four-bedded room^[147]. We note that NHSL’s response asked Multiplex if the Project Co could “confirm how compliance with SHTM in relation to air change rates, balanced ventilation and room heat recovery [would] be met.” It is from this point in time that reference appears to have been explicitly made to air pressure in multi-bedded rooms^[148] as well as single bedrooms.

5.3.8 We understand from NHSL that, in late 2016, following one of the ventilation design workshops to discuss the ongoing ventilation issues, the Project Team highlighted to the clinical team that the air pressure for the four-bedded rooms had been designed to be positive. We understand that due to the Project Team’s prior clinical experience, they were aware that this would not allow for patients to be cohorted with the same infection; in direct contravention to the practical requirements of those rooms.

5.3.9 Project Co had classified all four-bedded rooms as ‘general wards’ in respect of the pressure regime, under the guidance provided in the table illustrated at Figure 1, page 33, and thus felt that the rooms having positive pressure had been designed in compliance with SHTM 03-01 pressure requirements given that no pressure regime was specified in the guidance for ‘general wards’. However we understand from NHSL that they and their advisors were of the view they should be classified as having the same function as a ‘single room’ under the guidance, and should achieve balanced or negative pressure.

5.3.10 We understand from NHSL that the Project Team, including the clinical team members, met with Project Co in order to discuss this issue. Following this meeting, discussions were held with the Children’s Clinical Management team which included a Director, Associate Medical Director, Nurse Director and two Clinical Nurse Managers (noting that this was only an issue for the Children’s Hospital and not DCN). The basis of these conversations were the implications of not being able to cohort patients and whether this was something they could manage with, without a change being made to the air pressure regime. We understand that the focus of these discussions were on the air pressure regime, and its impact on operational matters.

5.3.11 As the above discussions confirmed that it was not possible to cohort patients and, in turn, use the rooms as needed without a change to air pressure, the clinical team undertook a risk assessment on 5 July 2017. Such risk assessments were required in respect of any proposed changes to the project design which may result in impact to patient care. The risk assessment was in effect an operational review, as opposed to a technical assessment, and required input from the various specialists who were party^[149] to the original discussions in order to accurately reflect the discussed risks in the document itself.

5.3.12 The output of the risk assessment was discussed with Project Co. However, Project Co stood by its view that the design as it stood was compliant with SHTM 03-01 and therefore did not agree to a PCC, being the only way to formally agree a change to the design. This was detailed in the Programme Board Paper ‘Compliance Issues and Commissioning Delay’ dated 24 July 2017^[150]:

“Ventilation to 4 bedded rooms – PCo design is based on an interpretation of a table contained in guidance where they have applied the ventilation regime for a general ward to the 4 bedded rooms. NHS Lothian, HFS Principal Engineer, the boards Authorising Engineer and Technical Advisors strongly disagree with this interpretation. A risk analysis has been carried out by the Clinical Director and the clinical Project Managers in collaboration with the Clinical Management Team and this work is felt to be essential in order for the new hospital to function safely and at optimal levels. Without the ventilation in the 4 bed rooms being installed correctly these areas will not be able to cohort and safely manage the influx of small children over the winter with infectious respiratory disorders as well as new and emerging conditions and also reduce the future proofing for these services.”^[151]

“Two ‘without prejudice’ meetings have now been held, chaired by IHSL with two of their Directors present, to see if the two parties, NHS Lothian and Multiplex, can come to some agreement on the way forward. These meeting follow numerous meetings between the respective technical teams and copious amounts of correspondence. To date there has been no movement from either side with both sides believing their interpretation/analysis is correct.”^[152]

5.3.13 In January 2018, given that there had been a number of months without progression on this matter, the Project Team asked the clinical team to revisit the original risk assessment to validate that it remained correct. The outcome of the updated risk assessment remained the same, being that 13 rooms required a change to their air pressure (three of which were in critical care) ^[153]. This dispute remained and, as such, was brought into the Settlement Agreement (see further details in the Section below).

Approval of the agreed resolution

5.3.14 As part of the Settlement Agreement, Project Co agreed to amend the pressure in 14 rooms^[154], with the agreed resolution detailed in the Technical Schedule (“TS”) of the Settlement Agreement reading as follows:

“The resolution of the Dispute submitted by Project Co through the Schedule Part 8 (Review Procedure) and agreed by the Board, is for 14 No 4 bed rooms to be balanced or negative to the corridor at 4 ac/hr”^[155].

5.3.15 The agreement was detailed in the document ‘Multi Bed – Ventilation Amendment Proposal to Achieve Room Balance’^[156] which showed the 14 room numbers included. Whilst this document did not explicitly state that four of these were Critical Care rooms, the room number prefixes for Critical Care all start ‘1- B1’ as opposed to a different letter. The proposed solution detailed for all four rooms stated “retain the supply ventilation at 4ac/hr…”. This document was approved at ‘Level A’^[157] through the RDD process^[158] in July 2018, the process for which includes review by Project Co, the Project Team, clinical teams and Mott MacDonald. We have seen no evidence that the air change rate of 4 ac/hr being applied to the Critical Care rooms was questioned during these reviews.

5.3.16 The approved document referred to in the paragraph above was then incorporated into the TS that ultimately formed part of the Settlement Agreement. We have detailed in Section 6.4 the governance arrangements in relation to approving of the Settlement Agreement and associated TS, and the extent of the awareness by the NHSL Board, and associated project committees, of the professional and technical advice sought in approving the content of the resolutions contained in the TS.

5.4 Summary

5.4.1 We have seen evidence of professional and technical advisors being involved throughout the Project. This included specific involvement in relation to ventilation issues.

5.4.2 We have not been instructed, and it is not within our area of expertise, to consider the responsibility of external professional or technical advisors to identify the Issue^[159].

5.4.3 However, in any event, we have seen no evidence that professional or technical advice identified the Issue prior to June 2019.