MR. BOYLE KC – Closing Statement
Reference: ‘Urology Services Inquiry’ website – Day 96 Transcript 13 June 2024 (pp. 41-63).
These are the oral closing submissions on behalf of the Core Participant, Mr. Aidan O’Brien.
You already have his written closing to assist you with your work, which is in keeping with the assistance which Mr. O’Brien has personally provided to the Inquiry as it progressed. He submitted a detailed Section 21 statement, which ran to some 260 pages, with linked chronologies and further addenda as the Inquiry continued.
He attended in person to give you evidence over the course of three days in the spring of 2023 and for a further three days in the spring of this year. He sat where I am standing, I think for longer than any other witness in the Inquiry.
My first heading for you is context.
At the very beginning of this Inquiry, in the opening statement on his behalf, we observed that, regrettably throughout Mr. O’Brien’s tenure as a consultant, the Urology Service at the Trust was seriously and significantly under-resourced for over three decades, which could obviously not be attributed to the likes of more recent phenomena such as Brexit or Covid. There had been a profound and continuous failing presided over by Trust management, commissioners of health services and the Department of Health to adequately resource the Urology Services at the Trust.
The evidence heard during the course of the Inquiry has confirmed that the above was an accurate description. It was not mere puff or hyperbole. It is obviously of the utmost importance that this context informs the Panel’s approach to its work, as Mr. Lunny alluded to just a moment or two ago. Indeed, the lack of resources or the resource constraints, as they are described in the Trust’s submissions at paragraph 4.83, are, in fact, relied upon by the Trust itself as part of what it describes as “important context” as to why the Trust itself did or did not address matters from a governance perspective.
It, hopefully, goes without saying that if it be fair and appropriate for the Trust to pray in aid the lack of resources to seek to explain or mitigate omissions or failings on its part, it must equally be fair and appropriate for Mr. O’Brien to do likewise.
What the evidence has also now revealed is that the grossly inadequate and unsafe service has been disproportionately the case for the Urology Service compared to other specialities. The Panel have now seen the evidence presented in an email in May of 2018 from Mr. Haynes in which he wrote:
“Unless immediate action is taken by the Trust to improve the waiting times for urological surgery, another potentially avoidable death may occur.”
A month later, he included a table in an email to show the disparity in relation to the waiting times for other specialities. That exemplified, in clear terms, that which Mr. O’Brien, and indeed the lead clinician Mr. Young, had been concerned about for many years. It also begs the rather obvious question: why wasn’t that disparity grappled with as a matter of governance over the course of time? Urology waiting lists were endangering lives and Urology patients were having to wait disproportionately longer than any other speciality.
In the early part of the following year, in January 2019, the comparative analysis for the longest waiting times for first outpatient appointments for patients referred as red flag referrals due to concerns that they may have cancer, showed that the longest waiters were Urology patients by some distance. Urology patients were waiting ten times longer than patients with skin or gynaecology concerns and six times longer than patients with ENT or general surgical concerns. Urology had the majority of the 62-day pathway breaches and the longest waits for urgent and routine admissions for surgical treatment, at some 269 weeks, i.e. over five years, the average across all specialities being 37 weeks.
The situation had become so dire by the autumn of 2019 that the Urology Service was not, in fact, delivering any routine inpatient urology surgery at all. Mr. Haynes wrote in an email at WIT-54708:
“Effectively, as you are aware, routine inpatient urological surgery is not being delivered at present.”
That almost bears repetition:
“… routine inpatient urological surgery is not being delivered…”
Put another way: If you were a patient waiting on routine urology surgery, the shop was shut. There wasn’t any. The Urology Service for routine patients was bankrupt.
For the avoidance of any confusion, the shop was not just shut for routine surgery, it was also shut to the majority of patients awaiting admission for surgical management considered to be of an urgent nature, because, by 2019, there were patients awaiting admission for urgent management since 2014. And so the Trust had to resort to a familiar response to these kinds of intolerable delays in patient treatment, as reflected in the email from Alanna Coleman in September of 2019. When referring to the booking times for red flag patients, she posed the question:
“Should we just ask the consultants if they are willing for their clinics to be overbooked to accommodate?”
That extracted the telling reply from Mr. Glackin:
“If the Trust cannot deliver this, then there is an issue of demand outstripping supply. Simply relying on me, or any other clinician, to overbook a clinic will not solve this supply issue and I am not willing to do this work unpaid or to the detriment of my existing workload.”
Irrespective of whether Mr. Glackin was to be paid for taking on additional work, it is notable he was saying he was not willing to have additional work cause detriment to his own clinical practice.
Mr. O’Brien, as you know, had, for decades, taken on additional work.
What is alarming about all of this from a governance perspective is the evidence given to the panel by Ms. Mullan, the Non-Executive Chair of the Trust, and Dr. O’Kane, as the then-Medical Director of the Trust, when confronted with these horrifying statistics and the obvious potential for patient harm – it couldn’t be clearer, avoidable deaths – was an acknowledgment from Ms. Mullan that the focus at the Trust had been on targets set by successive ministers of health and that “patient safety was not the first and foremost concern”.
In other words, the Board’s focus was figures in a spreadsheet, not patients in their care. And then the evidence of Dr. O’Kane, that whilst difficulties with waiting lists, compounded by staffing shortages, were brought to her attention informally, “none were being raised as specific patient safety issues”.
How can it be the case that the Medical Director of a healthcare Trust did not seem to appreciate that having patients waiting years on waiting lists, with waiting times compounded by staff shortages, was not a patient safety issue of the highest order?
The evidence received by the Inquiry would strongly suggest that, while it placed the long waiting lists for outpatient appointments and for admission for surgical management on risk registers, the Trust had little, if any, real insight into the actual risks to which patients were exposed. How could it be that the most senior management personnel in the Trust could retain such little, if any, awareness of these risks to patient safety, even though they were repeatedly being brought to their attention by the likes of Mr. Young, Mr. O’Brien and others over the years?
Is it the case, from the evidence that the Inquiry have heard, that senior management gave greater weight and priority to responding to the expectations of commissioners and the Department of Health than it did to responding to concerns raised by the clinicians and the nursing staff? Ms. Hunter’s departure as a result of her concerns about the safety of the ward being a case, perhaps, in point.
There is no surprise then that the response, over time, has been an abdication of responsibility to patients
and their safety by Trust Board and Department, coupled with an expectation that the staff and practitioners should, and inevitably would, shoulder the responsibility instead. The response to inadequacy in the resourcing of Urology and the increasing demand over time was to depend upon practitioners doing more, then expecting them to do more and, finally, requiring them to do more, and this was so facilitated by the ethical commitment of doctors and nurses to caring for patients.
As the gap between need and service capacity widened, the transfer of responsibility became progressively overwhelming, until the accompanying expectations became, as Mr. Haynes described them, unmeetable. The introduction of the IEAP, which transferred responsibility for triage of referrals to all consultant clinicians in all specialities, without any consideration as to their individual or collective capacity to undertake this responsibility, is a case in point. The Trust, at the time, and for years subsequently, did not have a triage policy of its own. The Trust, it seemed, considered that it did not need one as it simply transferred the responsibility of its IEAP obligations to consultants.
There was the increasing dependence and requirement on clinicians, over time, to progressively review, action and record on all results and reports, regardless of their nature, which eventually morphed into a requirement that doing so would additionally include and/or replace patient review, the DARO scheme.
Similarly, there was an expectation that the Urologist of the Week would undertake triage of all referrals. As the Inquiry is aware, it was to become Mr. O’Brien’s experience and observation that it was impossible or unmeetable to additionally triage all referrals received whilst Urologist of the Week without either compromising the quality of inpatient care or compromising the quality of triage, or both.
These are significant examples of the progressive transfer of responsibility to clinicians, with seemingly little or no consideration of, and certainly little or no provision of, any or any adequate personnel, resource or time to enable the inadequate numbers of personnel to take them on, and so it is in that context that the Inquiry are invited to view the issues which have been raised.
My second heading is the commitment of Mr. O’Brien and his work ethic to try and mitigate the risks to patients.
The Inquiry has before it a wealth of evidence about Mr. O’Brien’s work ethic over the 20 years he worked at — 28 years, forgive me, he worked at the Trust. I doubt I can put it any better or more succinctly than Dr. McAllister did when he said that Mr. O’Brien “was generally considered to be extremely hardworking, if not the hardest working surgeon in the Trust”. He worked late nights, weekends, when he was on annual leave. He postponed his own medical treatment to work, and when he did go on sick leave in the December of — November/December of 2016, he was working then, too, and the Trust knew all this.
In the period 2012 to 2016, the Trust also knew that Mr. O’Brien had additional onerous roles as Lead Clinician and Chair of NICaN’s Clinical Reference Group in Urology, in which he steered all of Northern Ireland’s Urology MDTs in preparation for the national peer review in 2015, and that was in addition to being Lead Clinician of the Southern Trust’s Urology MDT and Chair of its MDM.
The Trust knew that Mr. O’Brien took patient records home to do dictation and administration and, when asked for them, they were promptly brought to the hospital department which required them. They knew he wasn’t able to do all of the triage because they set up what has become known as the informal default system.
What is also notable about triage is that there was not any fixed or defined way of doing it, as a matter of fact. It had been the subject of debate. Does it just require the reading of the letter of referral from the GP? Should it involve the reading of or review of letters, results and reports relating to the patient, if they exist? Does it also require the reviewing of the digitalised images of all scans? In the context of increasingly long waiting times for first outpatient appointments, does it require a form of advanced or enhanced triage directly contacting patients on occasion to ascertain fitness for investigations?
When you have a group of seasoned practitioners undertaking all of the activities of the Urologist of the Week, they may well develop their own way of managing or prioritising in the absence of some defined structure.
Patient 10, which became known as the index case, is perhaps a case in point where the nature of the triage, to have appreciated a renal cyst may be malignant, would have required a view of the scanned images. And
we invite the Inquiry to consider Mr. O’Brien’s response to the SAI in that case at AOB-01392, where he expressly raised the nature of triage and what it was to involve.
If a consultant urologist would have needed to spend 10 minutes, let’s say, to review scanned images, and if only one third of the 120 patients referred each week at the time that Patient 10 was referred, the requirement to review the scanned images would have taken almost six hours to conduct. At the time, that would have been almost twice the total amount of time allocated to Mr. O’Brien in his proposed job plans for all of his administrative work each week.
The Inquiry is aware that the clinicians made attempts to discuss the competing requirements of the role when Urologist of the Week, culminating in the meeting scheduled for December of 2018, but that meeting, as you know, was cancelled.
May we also sound a note of caution regarding the assertion made in the Trust submissions at paragraph 4.11(a), that Mr. O’Brien’s colleagues were able to perform triage and then “without any evidence of any significant risk or harm to patients”.
So far as we are aware, there has been no audit conducted to determine whether there is any evidence of significant risk or harm to patients as a result of triage being undertaken by other clinicians or by other means.
On the other hand, it has been reassuring to note from the Trust’s closing submission that whilst concerns were expressed in relation to the use by Mr. O’Brien in relation to monopolar resectioning glycine, there has been no evidence of any higher incidents of Hyponatraemia or other issues arising from him doing so. That, perhaps, confirmed his concern about the safety measures and precautions that he could use during endoscopic resection as performed by him.
Also, we note that the assertion that Mr. O’Brien was in some way an outlier in relation to the use of BCG for muscle invasive bladder cancer, that has, likewise, been found to be without foundation following audit.
My third topic is the Trust’s response when concerns were raised by Mr. O’Brien and Mr. Khan, the Case Manager at the time of MHPS.
Mr. O’Brien did raise concerns of public interest magnitude about the Trust’s failure to comply with its duty of care to patients, in his grievance in 2018, which were not urgently addressed. He raised the increasing disparity between the waiting lists and those for other specialities and he gave specifics, and, in relation to the delays, he told the Trust that of the then-400 patients awaiting prostatic resection, based on international data, it could be expected at least 10% would have a delayed diagnosis of carcinoma. He wrote that he was disclosing these facts “in the interests of the public in general and these urological patients in particular”.
From a governance perspective, it seems that nothing was done in response to that.
At the turbulent time at the end of his time at the Trust in June of 2020, Chair, you will recall that he wrote a letter to the Chief Executive which was copiedto others. During the course of Pauline Leeson’s evidence, you queried whether, in fact, that was a letter which was tantamount to whistleblowing on the part of Mr. O’Brien. The issues that he was raising in that letter, likewise, were not urgently addressed.
The Trust’s failure to address these issues is indicative of that mindset where responsibility was being transferred to be shouldered by the individual as opposed to the Trust itself. That was also exemplified by the Trust’s failure to act upon the final conclusions and recommendation by the Case Manager at the time of MHPS. He concluded that the investigation had highlighted issues regarding systemic failures by managers at all levels, both clinical and operational, within the Acute Services Directorate, and he recommended an independent review of the full system-wide problems.
Whilst the Trust embarked upon a course of action against the individual, Mr. O’Brien, it simply ignored the system issues that the Case Manager had highlighted. No independent review was commissioned and, as we now know, the Case Manager’s findings were neither shared with the Trust Board nor with the Department of Health.
My next heading is Mr. O’Brien’s return to work and his working full-time between 2017 and 2020.
Despite the devastating impact upon him personally and professionally of his exclusion, which he spoke to you about in evidence, and despite the length of time he then had the 2016 matters hanging over him, with the consequent uncertainty, Mr. O’Brien returned to work full-time in early 2017 and he continued to work full-time and as hard, if not harder than ever, between 2016 and 2020. You have heard how he arranged annual leave now after his shifts as Urologist of the Week and he would then work on those annual-leave days, in addition to undertaking extra operating sessions available to him.
In a telling piece of evidence, he described how he tried to do “more of all of it”. Despite the enormous strain upon him of having a process hanging over him for the remainder of his career – over three-and-a-half years went by with it remaining unresolved, from December 2016 to June of 2020 – he tried, as he had always done, to maximise the amount of work he could do for the benefit of the maximum number of patients on waiting lists that were, in the words of Mr. Wolfe, “sky-rocketing”.
My next heading is: Should Mr. O’Brien have adopted more efficient ways of working?
The point has been made that perhaps Mr. O’Brien should have adopted more efficient ways of working; that his colleagues were able to perform triage and the like, as Mr. Lunny spoke to you about a moment or two ago. It has been observed that Mr. O’Brien was offering a “Rolls Royce service” to his patients or “an excessively high standard of service” to some patients.
It is an odd position to find oneself criticised against that backdrop where you are offering a first-class service to patients or offering too high a standard of service to patients. But in fairness to Mr. O’Brien, in his evidence to you he accepted that it was possibly the case that the balance, as he said, tilted too far on occasions.
As we observed in written closing submissions, issues that arose were never because he was idle, never because he was not pulling his weight; on the contrary, because he was trying to shoulder too much weight. An observation has been made in relation to private practice which he did not undertake during job planning times, during weekdays. The little that he did, he did on a Saturday morning.
Mr. O’Brien, as he said to you in evidence, very much regrets the fact that, on occasion, he did not have the time to do it all, and he accepted as much, particularly in relation to the cases of Patients 92 and 95, with respect to reviewing the reports of their scans.
My next topic is: Intended retirement from full-time employment and return to part-time employment.
Mr. O’Brien took up his post as a Consultant Urologist on Monday, 6th July 1992. He planned to step down from full-time employment on 30th June of 2020 due to an increased desire for him to share a caring role within his family.
He intended to return to part-time employment in August of 2020, which would have been at the height of the Covid pandemic. As you know, he notified the Trust that those were his intentions and initially no one raised any concerns with him about his proposal. He has been gravely disappointed to learn, through the Inquiry, of the communications that Mr. Haynes raised with Dr. O’Kane and the invocation of what we now know to be the flawed claim about what has become known as the two out of ten which was used to exclude him.
His disappointment at the ending of his career, against a backdrop of a lack of openness, transparency and candour, has been obvious, after 28 years of service in the care of thousands of patients.
Whilst it may be apt to refer to it as a fortunate error, it did, of course, deprive patients, even on a part-time basis, of some work that Mr. O’Brien could have done which he had been capable of doing from 2017 to 2020 at the height of a pandemic, when, arguably, some patients may have benefitted from his input.
My next topic is: Issues arising since 2020 and the lack of engagement with and input from Mr. O’Brien to the SCRR and Royal College reviews.
In terms of the issues that have arisen since 2020, as addressed in the SCRR and the Royal College review, it is only fair to point out that Mr. O’Brien has not been asked to participate in any way in relation to either of those reviews. He has had no opportunity to provide any input or insight into the cases being considered, and it is important that, in fairness to him, if conclusions are to be drawn from those reviews, that the fact that he has had no input into them is placed on the record. Not only has he not been asked for any input at all, despite being the treating clinician in many of the cases, who may have had some helpful light to shed, he has not been provided with access to medical records or correspondence which might, even now, enable him to assist, correct or accept any concerns in particular cases and enable him to make a positive contribution of what lessons could be learned moving forwards.
It is also, hopefully, an entirely uncontroversial point to make, that where a patient’s management has been altered or changed as a result of such a review, firstly, the practice of medicine recognises that there will be different schools of thought and/or approaches to patient treatment and management; and secondly, the practice of law recognises that medical practitioners may have different, but both entirely acceptable, ways of manning a patient or patients. You will be familiar with the test that’s applied in clinical negligence cases, Bolam and Bolitho and the like, responsible body of medical practice.
One issue which has been raised is noted to be compliance with MDM recommendations and/or adherence with guidelines. And there was something of a sense from the evidence of Dr. Hughes, and indeed, more
recently, the Trust’s now auditing of compliance with recommendations of MDMs, that there is something of a binding nature to them or that the recommendations are a directive to be complied with, which is in danger of trumping the autonomous participation of the patient in his or her own management. To approach MDM recommendations and guidelines as, in some way, a directive to be complied with in terms of the management which must be delivered, would, in fact, be wrong in law, after the Supreme Court decision in Montgomery, where primacy is the autonomy of the patient, not the paternalistic approach to medicine of the past.
In passing, in relation to the SAI review conclusions with regard to Patient 1, we sound a note of caution, particularly given paragraph 5.7 of the Trust’s closing submission, where it says:
“The Trust accepts the review that Patient 1 was diagnosed with prostate cancer on (redacted) and was subsequently started on an antiandrogen therapy as opposed to androgen deprivation therapy. The Trust accepts that this did not adhere to the Northern Ireland Cancer Network Urology Cancer Guidelines.”
An antiandrogen, such as Bicalutamide, is, in fact, androgen deprivation therapy. The Trust is also incorrect to accept that the use of Bicalutamide, prescribed initially in a dose of 150 milligrams daily for a high-risk locally advanced prostate cancer, was not compliant with the NICaN Urology Cancer Guidelines of 2016, and that Bicalutamide 150 milligrams daily was unlicensed for that category of prostate cancer because it is, and those observations you will know have been made previously in relation to corrections that needed to be made to that SAI.
My final topic, you’ll be pleased to hear, is: Looking forward or recommendations.
In the final part of his written submissions, Mr. O’Brien canvassed a number of potential recommendations for the Inquiry to consider, and I intend to touch upon two of those.
Firstly, one of the recommendations he invites the Inquiry to consider is the perimeter of practice beyond which a physician cannot or should not go. Is it to be defined by a job plan and that is it, regardless of the waiting lists, regardless of the obvious risk of patient harm, the time waiting for stents to be removed or the time waiting for review appointments? Has the time now come for an inquiry to recommend a perimeter beyond which a practitioner should not go? Is there scope for some kind of recommendation to protect practitioners from themselves which will potentially have a collateral benefit upon the patient experience? May I try to give you an example of what I’m trying to describe?
CHAIR: Please do.
MR. BOYLE: If a group of consultants are told by scheduling that there are available sessions for additional operating or additional clinics and they all have long waiting lists, are they morally and ethically entitled to decline, irrespective of the risks and suffering that their participation would alleviate, or is there an obligation upon them to avail of such additionality so as to do no harm? In short, what should give first? Should there now be some guidance, given that we are likely to have long waiting lists for a long time? Should there be some guidance for practitioners about how they should approach that particular dilemma?
Secondly, and relevant to patient experience, the focus of SAIs is currently very much incident-centered, a snapshot in time, if you will, whereas there is surely the potential for greater learning and improvements to patient safety if SAIs were recalibrated as a serious adverse experience which would have the dual benefit of being more patient-centered and enabling those responsible for the investigation to look at the whole patient experience, not just a single episode of care that may have triggered it?
Many serious adverse incidents are, understandably and legitimately, precipitated by a single incident or event. Their reviews are often set time frames surrounding those particular incidents or events and those time frames may exclude more longitudinal reviews of the patients’ experiences that may otherwise reveal factors or features which may have as great an influence on clinical outcomes than the incidents or the events themselves, without, of course, detracting from the significance of the triggering incident.
Finally, on Mr. O’Brien’s behalf, can I repeat what he said at the very end of his evidence, that he very much regrets any suffering or harm that patients may have experienced due to any decisions, actions or failings on his part.
Chair, those are my submissions.