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

Chapter 6: Role and conduct of the chair and members of a review

171. The subject matter of a review may often be a difficult and emotional one. This is especially so when members of those giving evidence may have been directly affected by the subject under investigation^[93]. For others, it may also be cathartic and offer closure just to be able to have the opportunity to discuss their experiences. External influences, such as the media, political interests or responsibilities to organizations and professional groups may also bring added pressure or emotional stress.

172. If any of these elements are likely to be present in a review, then consideration should be given and, where required, necessary adjustments made, for example, resources and support groups being made available to those involved. Failure to address this can affect perceptions of fairness, trust and objectivity. It is the responsibility of the chair to recognize, respect and respond.^[94] This once again highlights the need for the chair to have excellent communication skills.

173. A good chair needs to command the respect of his or her members. He or she should have a clear understanding of the remit of the group and the roles of the members in seeking to achieve that remit. Clear and detailed direction needs to be provided to the group in relation to the scope of any review, the timescale and the outcomes. The chair needs to be able to address issues over possible bias or conflict.

174. They set the tone on how the meeting will be conducted. The chair is the ‘front face’ for the public and media, becoming synonymous with the review which is often evidenced by the review being referred to by the surname of its chair.

The Mesh Review

Role and conduct of the chair

175. Many members of the Mesh Review acknowledged the challenges of chairing the review. One member described the first chair’s appointment and role as an “impossible task.” “I think it was very, very difficult for the chair(s), at times, to keep control.”

176. Most of those we spoke to distinguished the styles between the first and second chair. The majority of participants alluded to the attempts of the first chair to build consensus around topics and ensure members’ voices were heard. “She wanted to ensure that the balance was being sought and that where possible consensus could be achieved.”

177. Other members felt that the first chair took a different approach depending on who was speaking and, in particular, rather than taking pro-active steps to bring conflict within the Group to a constructive conclusion, allowed it fester. Conflict was indulged rather than being resolved. This often led to protracted disagreement. Another commented that the chair did not “manage the impasse” and that conversations would often become “emotionally charged”. One member commented that the chair “did as well as she could”, but “trying to please everyone was never going to work given the adversarial nature of the dynamic.”

178. There were four resignations; the first chair, Dr Wilkie; a clinician member, Dr Agur and the two petitioner members, Elaine Holmes and Olive McIlroy.

179. There was general surprise at the resignation of the first chair.

“I didn’t know why [the first chair] wasn’t there at the last few meetings. She just wasn’t there, and the new lady said, ‘I’m the new chair’ and I thought, oh well that’s a bit odd.”

180. No one was informed as to why the first chair had resigned beyond an allusion to “personal reasons” or to the project lasting significantly beyond the initially agreed 6 to 12 months’ timeframe.

181. When the second chair took over, the majority of comments we received referenced a sense of “urgency” to conclude the work of the Mesh Review Group and publish the Final Report. Over two years had passed since the first meeting. Ten months had elapsed since the publication of the Interim Report. The environment that the second chair came into was a very different one from the one experienced by the first chair.

182. The petitioners tendered their resignation at the beginning of the first meeting of the second chair, although she persuaded them to stay. They subsequently resigned after that meeting. The expert clinicians were failing to agree on the contents of the chapter that they had been tasked to write- Chapter 6 - resulting in Dr Agur indicating that, as a consequence, he may tender his resignation.

183. After several phone calls with Dr Agur with no resolution, the second chair contacted his line manager. When we asked her why she chose to do this, she spoke of concerns over professional competence, and stated that it was “standard procedure” in their organisation. Dr Agur viewed it as “using line management to exert pressure and to coerce and bring that person back into line.”

184. When challenged to consider whether her actions were appropriate, the second chair accepted that it may have been an overstepping of bounds.

185. The second chair’s decision to contact the line manager of one of the clinician members was inappropriate. Even if this was done with the best of intentions, including any concerns that she may have had over his professional competence, it showed a lack of judgement and lack of respect for professional boundaries.

186. There seems to have been no process or agreement on how to manage a situation if a member of the Review wished to resign.

187. Following the resignations, it would have been prudent to discuss whether the Mesh Review Group was still sufficiently quorate and representative to allow it to continue its work. Whatever the outcome, that conversation should have taken place and been minuted.

188. Resignations should have been first intimated to the Chair. Members of the Mesh Review should have been informed of a resignation rather than hearing it from the media.

We recommend that a process be established to manage any changes to the membership of a review. The process should include matters such as intimation of any resignations and consideration of replacements and quoracy.

189. Although identifiably different in style, both chairs appeared to have been unclear and lacking in guidance as to the nature of their role. The first chair accepted the role having had no involvement in the drafting of the terms of reference or selection of members. Matters regarding possible bias or conflict remained unresolved. She was regarded as having a more empathetic but inconsistent approach whereas the second chair’s approach was perceived as being more structured, but urgent. This is unsurprising given the circumstances of her appointment which emphasized a short timescale within which to hold meetings and pressure to produce a Final Report.

Role and conduct of members of a review

190. How an investigation is to be conducted should be made clear to all members. The lead and tone should come from the chair. Consideration should be given as to whether the discussions are to be held in confidence and how to promote conduct that is agreeable to all members and conducive to the progress of the review.

191. Members should be chosen in an open and transparent manner. They should be chosen for their knowledge and experience in relation to the subject matter concerned.

192. Conduct should be agreed around a set of values or principles such as the Nolan Principles. These principles were established in 1994 following the UK government’s creation of the Committee on Standards in Public Life.^[95] These seven principles are generic in nature; selflessness, integrity, objectivity, accountability, openness, honesty and leadership. They may serve as a starting point to agree how any review group is going to proceed and the terms within which it will operate.

193. A second important consideration is the nature of the investigation. Is it to be simply a fact finding mission or one which is required to apportion blame for any faults or omissions? Adversarial elements may often emerge in a review where matters of criticism or apportionment of blame arise.^[96] This is not unusual and often hard to avoid:

“Whenever some disaster befalls the human race, the instinctive reaction of most people is to seek its cause and try to prevent a reoccurrence. But behind this civilised response there lies a darker motivation as old as time- the urge to lay blame.”^[97]

The Mesh Review

194. During the first meeting of the Mesh Review group, it was minuted that the Review would be conducted in “an atmosphere of trust and openness, where transparency would underpin open discussion in the knowledge that the participants may do so in confidence.”^[98]

195. Members of the Mesh Review were not guided as to whether their approach was to be inquisitorial or adversarial. More generally, members were uncertain about and referenced a lack of guidance on what they were expected to do as a member of the Review.

“What are the behaviours that are expected? What are the things that are not? What to do if you run into trouble or how to treat the Scottish Government officials. What is their role in this? None of this was clear.”

196. Many described situations or themes that were characteristic of a breakdown in communication during the operation of the Mesh Review. These issues ran from interpersonal misunderstandings to administrative issues; organisational and cultural clashes, and a lack of guidance on process and timeframe.

197. A recurring problem was the belief that consensus had been reached during a meeting only for the issue to subsequently arise again, apparently unresolved:

“You would make progress on the phone and then it went away. You would make progress by sending documents round and then it would go away again. We had a conference call when we reached agreement then that was subsequently rescinded. Very difficult to keep track of that. No idea of what might have been going on as a sort of second play between individuals in the Group.”

198. There was speculation as to the cause of the shifting nature of group consensus, particularly between meetings. Suggestions included members not feeling fully “comfortable” to challenge what was under discussion. Others told us that this was due to the short period of time lay members of the Group were given to “get to grips” with the material, which in turn affected their ability to question the material in meetings.

199. Administrative issues took up a lot of time that some members believed could have been more usefully deployed to progress the agenda. An example of this was protracted discussion over the content and lack of agreement of the minutes. This was a recurring concern, “If people felt that there was something in a minute they disliked they would contest it.” Another observation was that people “were communicating on different wavelengths”.

200. Particular reference was made to one meeting that ended early due to tensions running high.

“It became driven by making sure everybody stayed in the room and talked not shouted and didn’t get up and walk out and didn’t actually insult people to their faces and keep level of anger down. I’m not talking specifically about one group here, to try to get progress. I have never been in more difficult meetings and never wish to again.”

“We had meetings which we had to stop because members were crying and had to leave the room.”

201. As the pressure to find consensus and produce the Final Report increased, the emotional elements and lack of compromise appeared to become more acute.

“I was surprised at what lack of trust there was, even within the room.”

“You had one extreme opinion saying every device is alright and [some] patient campaigners on the other side saying everything is not.”

“That was the difficulty that I thought we were having is that the Group was saying one thing and we were all trying to look at the evidence, come up with a reasonable compromise and a reasonable way forward but we had a group who were like ‘no’ there is no comprise. There is no way forward and there was no discussion. You can discuss things and agree to disagree but there was no discussion.”

202. The adversarial atmosphere, during the group’s meetings, was mentioned by most of those we spoke to. It posed a broader question of whether reviews should be solely investigative or whether there is a place for the more adversarial discussion occasioned here.

203. Despite the agreement during the first meeting that the Group would proceed in an atmosphere of trust and openness, divisions between members of the Group emerged from the outset of the meetings. One meeting ended early due to some members leaving the meeting early, feeling unable to continue.

204. Despite the individual frustrations and tensions, one thing that came through strongly from those to whom we spoke, or received evidence from, was a clear sense of duty or citizenship. Each member had agreed to being part of the Review in a spirit of citizenship and goodwill and saw it as their “responsibility and duty to give of [their] time”, often alongside other extensive commitments.

We recommend that a review should agree, at the outset, what it is seeking to establish and the methodology of how this can be achieved. Whilst we would anticipate that an investigative/inquisitorial approach may be the norm^[99] it would depend on the nature and requirements of the review.

Role and participation of Scottish Government officials

205. Some comments were made by members concerning the fact that it was the Scottish Government officials who set the agenda. In the early meetings, this seemed to have been done in collaboration with Group members. If members wished to include a paper for discussion, then this would be forwarded to the Government secretariat. The later meetings, following the publication of the Interim Report, seemed to lose direction in terms of how the agenda was compiled and how a request from a member to have an item included for consideration would be addressed. Time pressure would have contributed to this but a lack of process in terms of setting the agenda and how requests for material were to be circulated became a substantial source of disagreement and contention. We discuss this further in the next chapter.

206. The majority of members agreed that, initially, Scottish Government officials had minimal influence over group meetings, and did not “guide discussions.”

“I would say (they) took more of a role perhaps in terms of supporting the Chair and perhaps rephrasing rather than significantly influencing decisions that were made or processes.”

207. As the challenges to find agreement became more acute, the role of the Scottish Government officials appeared to change. They started to meet with sub groups within the Group. There was comment of an increasing frequency of meetings between officials from the Scottish Government and both the petitioners and the clinicians.

Role of the clinician representatives

207. The clinician representatives held a number of sub-meetings following the publication of the Interim Report. This was to discuss the structure of Chapter 6 – generally referred to as the “clinicians’ chapter” – and agree on its content. This aim was not met. Disagreement at these meetings was primarily around the presentation of evidence. The primary points of contention appeared to be over issues of clarity of presentation and bias/objectivity of the way in which evidence was presented/omitted. Tensions and discord appeared to escalate over time within the Group. Outcomes from these discussions began to be “shared” with some other members of the Mesh Review but not officially to the group as a whole.

209. There was no agreed process or parameters within which these sub meetings took place. There was no agreed mechanism for feedback to the rest of the group. In the absence of any agreed rule of conduct, these sub-meetings deteriorated and differences remained unresolved. There should be a process for sub meetings of a review, addressing how they are conducted, minuted and their discussion fed back to the core group.

We recommend that group members of a review have equal access to information and points of contact.

The petitioners

210. The petitioners gave evidence to the Public Petitions Committee of the Scottish Parliament^[100] that they felt physically isolated, at one end of the meeting table, when attending the meetings. During our interviews we asked other members of the Review what their recollection or perception was in this matter.

211. The majority of members strongly disagreed with the petitioners’ assertion that they were physically or socially isolated within Mesh Review Group meetings.

“That’s not my recollection of events. They, I remember on all occasions that they were given the opportunity to be together and certainly the Chair made every effort to be as inclusive as possible.”

“I wouldn’t say they were ignored or isolated, that was not my experience.” Only one member suggested that “they had their own corner.”

212. With regard to the seating arrangements of the petitioners, many members pointed out that the physical dimensions of the rooms and number of people in attendance would have made distancing from other persons logistically difficult. In addition, some members commented that if the petitioners were seated further away from the rest of the group, it would have been a purely practical decision, to sit near the door in order to facilitate ease of entry and exit from the room.

213. There appeared to be little support for the petitioners’ perception that they were physically isolated within the various meeting rooms, although the petitioners clearly felt a level of isolation: “We were a lone voice.”

214. It may be that their perception of isolation was more to do with how they felt their views were received within the strictures of what became a more technical and clinical review. These feelings may have been exacerbated by the challenges of attending lengthy meetings.

215. Occasionally, the Expert Group would meet in the morning and the Independent Review would meet in the afternoon. Given the petitioners and others were members of both, the intensity and duration of these meetings would not have been without its challenges and could have easily have added to their feelings of isolation.

216. One member commented on the need for greater support for panel members in dealing with controversial decisions. They were unsure, however, how the government could provide support (e.g. with media queries) without being seen as “complicit.”

“What you can learn from this is you need time before a review process takes place to set out the ground rules rather than necessarily convene a review and then determine during the process what those ground rules are but that’s always easy with the benefit of hindsight. Of course, with the Review having pressure from Parliament to drive forward as quickly as possible and therefore those points of process were never really addressed before the process started.”

We recommend that consideration be given to providing members of a review with appropriate training and induction covering matters such as conduct and responsibilities, as well as matters pertaining to confidentiality, information sharing outwith the group and how to manage enquiries from the media.