An Investigative Review into the process of establishing, managing and supporting Independent Reviews in Scotland

Chapter 4: The selection/appointment and responsibility of the chair

118. Recruiting a chair should be an open process, and reasons given as to why the chair was considered suitable. Candidates should be interviewed and assessed against relevant criteria which will test their suitability to chair the subject matter under review include an assessment of whether the chair has previous experience.

119. The chair is the lead person in any investigation.^[64] He or she should set the tone and be the final arbiter on all aspects of the outputs arising from any investigation or review.^[65] A good chair requires extensive skills; including integrity, leadership and the ability to analyse and critique.^[66] Attributes such as career background, expertise and reputation should also be considered as these will have an impact on issues such as conflict of interest, bias and independence.^[67]

120. A successful chair needs to be a good communicator and be aware of diverse stakeholders’ interests, both internal and external to the review. The process to appoint the chair and the reasons for choosing him or her should be clear and be publicly available. In practice, there is very little guidance available on how such appointments should be made.^[68] The reality is that often the chair’s appointment may need to be announced quickly, even if it is to the detriment of more measured appointment process. Sir Robert Francis QC, Chair of the Mid Staffordshire NHS Foundation Trust Public Inquiry^[69] observed:

“As far as appointment is concerned, like most chairmen, I had the experience of being phoned up out of the blue and asked to decide within an hour whether I would like to chair the inquiry because the Minister was in a hurry to make an announcement. I am frequently asked, probably with some surprise, ‘Why were you chosen?’ I have absolutely no idea, or about the process.”^[70]

The Mesh Review

121. For the Mesh Review, the only specification from Alex Neil was that the chair should be a “retired public health consultant.”^[71] There was no reason given as to why the chair had to come from this career background. No other attributes were mentioned. This seems ill-considered and arbitrary.

Initial contact with the first chair was made by telephone by the Acting Deputy Medical Officer. She was still considering whether to undertake this role “when the Minister announced the appointment.” This was her first time chairing a Government Review.

122. This was a remarkably arbitrary approach to take towards appointing a candidate to chair a review, the subject matter of which had already attracted and would continue to attract a high level of public, political and media interest. It seems rather a lot to expect someone who has never previously chaired a Government review to take on such a challenging role.

123. To be able to effectively lead the process, it is the responsibility of the chair to understand and be able to address the strengths and weaknesses of the other members. In the Mesh Review, the first chair proposed the appointment of only one member, which was accepted. All other appointments, up until that time, had been made prior to her becoming chair. She had no involvement in that process and, as we have previously identified, little knowledge or wish to consider possible conflicts in members’ interests.

124. Following the first chair’s resignation, the second chair’s initial invitation came via telephone, from an official from within the office of the Chief Medical Officer. The second chair received the invitation with some caution as she was about to undertake a new role and was unsure whether she would have the time to make the commitment. She was advised by Scottish Government officials that the duration of the work would be approximately 6 to 8 weeks and there was strong emphasis that her role was one of taking a report “over the line.” The report was described to her as “virtually complete” and “all ready to go.” On this basis she assumed that there was little work left to complete.

125. She did not fit the original chair specification as she was not retired. Her appointment as a Medical Director with the National Health Service Scotland, of itself, raised concerns about a possible conflict of interest. No discussions took place to explore this, nor was there any consultation with Group members. The matter of whether her background and current role compromised the independence of the chair remained unresolved.

126. When the second chair attended her first meeting, many members of the Review were unaware of a change in Chair or who she was. The minutes from that meeting do not reflect any introduction.^[72] When we questioned the lack of a minuted introduction for the second chair, a government representative conceded that it was an example of “poor management.”

127. The second chair was not informed of the reason for the departure of the first chair. There was no offer made to meet the first chair or for any handover process. There was no communication between them at all.

128. There was also no process in place to deal with resignations whether from the chair or any other member. The commissioning parties of a review should ensure that the suitability and impartiality of the group continues throughout the investigation and be prepared for eventualities such as the resignation of the chair or members.

“A chair or panel member may die or may need to withdraw suddenly, and decision about whether to replace, and with whom, need as much care as the original appointment. The appointing Minister has a continuing responsibility to ensure efficiency, probity, public accountability and confidence in the process.”^[73]

129. We recognise that it may not always be an easy task to encourage candidates to put themselves forward to be considered to undertake a task of this nature. Being able to recruit a competent chair with the correct analytical skills and judgement is not without its challenges.

130. In the Mesh Review, the method of appointing the chairs was undefined with no appropriate governance applied to either appointment. The appointments were neither open nor transparent. The first chair believed she was still deciding whether to accept the role when her appointment had been confirmed to the Scottish Parliament.

131. There was no evidence that the Scottish Government officials tasked with choosing a chair had done any form of research into what skills the role required and who may be potential candidates. Once appointed, the first and second chair appeared to have been given very little information on what was required of them and even less guidance on how they should carry out the role. Once in the role, their actions appeared to be directed by information from Scottish Government officials, rather than exercising the autonomy that the role required. In hindsight both chairs agreed that they could have been more proactive.

132. Finally, there was no process to ensure a handover from the first to the second chair. There was no procedure or planning to address the situation where a chair may resign.

The appointment process to select the chair should be transparent.

We recommend that the commissioning party should ensure that the chair possesses skills specific to the nature of the inquiry.^[74] The commissioning party should also have a continuing responsibility to ensure that the chair promotes accountability and confidence in the inquiry process.

We recommend that support and some sort of induction, including background materials^[75] be given prior to undertaking the role. The former is especially important if the prospective chair is undertaking the role for the first time.

We recommend that a system of mentorships be established and a pool of those who have had experience chairing a Government review be available to draw upon to support a novice chair.

We recommend that potential appointees have no perceived conflict of interest which may raise doubts on impartiality and independence.^[76]

We recommend that the chair should be involved in the selection process of potential review members.^[77]