Meeting of the Parliament

Meeting date: Thursday, September 7, 2023

Official Report 1265KB pdf

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Professor Sam Eljamel (Update)

The next item of business is a ministerial statement by Michael Matheson updating—

On a point of order, Presiding Officer.

I apologise for asking the indulgence of members. Rule 13.2 of our standing orders deals with ministerial statements and section 3.5 of the Scottish ministerial code states that

“Ministers should ensure that important announcements of Government policy are made, in the first instance, to the Parliament”.

During First Minister’s questions today, we heard confirmation of the very positive news that there will be an inquiry into the incidents that the ministerial statement will deal with. However, that news was available in nationally published newspapers yesterday and the First Minister confirmed today that the inquiry was discussed at a Cabinet meeting earlier this week.

I am disappointed that, once again, information has been put into the public domain before being announced to this Parliament. In this particular case, the surgeon’s victims should have had the right to hear a full and proper statement explaining what is happening, rather than a snapshot through news headlines, which is disrespectful to them and to this chamber. I seek your guidance, Deputy Presiding Officer, on what can be done about the matter.

I thank Martin Whitfield for prior notice of his point of order. As he says, the guidance on announcements is intended to ensure that important matters do not enter the public domain before, or without, being communicated to Parliament. I invite the Government to reflect on Mr Whitfield’s concern that information suggesting that there will be a public inquiry into the case of Professor Eljamel appears to have been reported in the media prior to the First Minister’s announcement in the chamber earlier today.

Having said that, I will move on—

On a point of order, Deputy Presiding Officer.

Given the fact that we all know what is in the statement, would it not be in order for us to proceed straight to questions?

I thank Mr Kerr—[Interruption.] Members, please allow me to respond to the point of order rather than taking it upon yourselves to do so.

As far as I am aware, the detail of what is in the statement has not been put in the public domain and it would not therefore serve any useful purpose to go straight to questions.

I invite Michael Matheson to provide a statement giving an update on Professor Eljamel, who worked for NHS Tayside. The cabinet secretary will take questions afterwards on the issues that are raised in his statement, so there should be no interventions or interruptions.

15:02  

Few things are more important than the safety of patients in our health service. Perhaps equally critical is the trust that we—as individuals and communities—can have in our healthcare. Patients must also trust that any concerns that are raised about their care and treatment will be investigated and that the necessary actions will be taken. They must be able to trust that their concerns will be investigated and scrutinised and will be subject to robust governance and due diligence at the time, not several years later.

When trust is broken and weakness in governance is identified, it is imperative that we do all that we can to investigate why that has happened and to prevent others having the same kinds of distressing and traumatic experiences.

Actions some years ago by Mr Eljamel, a former surgeon in NHS Tayside, have been discussed at length in this chamber and I know that colleagues have a keen interest in the Government’s next steps.

Several reviews into his practice have taken place—both at the time and in the years since—after concerns were expressed by a number of his former patients. The latest NHS Tayside review—a due diligence review of documentation held relating to Professor Eljamel—laid bare the failings in NHS Tayside’s response to concerns about Mr Eljamel. It is clear from that review that those concerns were not acted upon or followed up with the urgency and rigour that they deserved.

Now, several years later, many former patients still live with the consequences and still have many unanswered questions. That is why I am today announcing our intention to commission a full public inquiry to seek answers to those questions.

Mr Eljamel practised as a consultant neurosurgeon at NHS Tayside between 1995 and 2013. Concerns about his practice were first raised with NHS Tayside in 2011 and 2012. As a result of a complaint that was received at the end of 2012, two further complaints received in 2013 and two significant clinical event analyses, NHS Tayside commissioned the Royal College of Surgeons in England to review his practice. Most complaints were received after Mr Eljamel had been suspended in 2013. Since then, several reviews have taken place into his practice.

Members will know that one of my predecessors as health secretary, Jeane Freeman, commissioned in March 2021 an independent case note review on the outstanding concerns of two former patients. That reported in May 2022, and it made several recommendations for NHS Tayside, the Scottish Government and NHS Scotland. In response, NHS Tayside commissioned the due diligence review in March this year, and that was considered by the board on Thursday 31 August 2023. I will say more about the detail of that review in a moment.

In the months when that work was undertaken, several former patients continued to raise concerns about their prior care and treatment. That was done directly with NHS Tayside, through MSPs, with ministers and in the media. I have considered the concerns that were raised with me by several former patients, and I was struck by their bravery and persistence—which was sometimes accompanied by significant distress and compounded trauma.

Nevertheless, at first, I was not persuaded of their argument that only a public inquiry would find the answers they sought about what happened to them and why. Knowing the length of time that that could take, and knowing that it would not necessarily consider individual patient’s circumstances, I was of the view that there were other, potentially faster and more individually responsive, ways to seek the answers that they are looking for.

However—as I have already touched on—after considering the findings of the due diligence review, my view has significantly changed. I will offer some detail on the due diligence review process and what specifically it has found that informed my thinking. Earlier this year, NHS Tayside began to examine its handling of those concerns. Last Thursday, its board considered the report. It outlines a number of failings that I believe can only be examined thoroughly by a full public inquiry. It also raises significant information that was not previously known to the Scottish Government, and given the length of time since the first concerns were raised about Mr Eljamel, that raises real concerns.

Briefly, the due diligence review identified that NHS Tayside did not respond to the General Medical Council about Mr Eljamel’s request for voluntary erasure from the medical register. It also identified that there was no effective central board oversight or co-ordination of significant historical information or reviews into concerns. It identified multiple examples of reviews and investigations where there was no follow-up action recorded and no or inadequate scrutiny, assurance or supporting governance. It identified cases where—despite there being complaints, adverse event reports and legal claims—no formal review of cases have been documented or retained, and that documents of potential relevance were subject to destruction in accordance with routine retention periods when putting a hold on such destruction would have better supported subsequent review processes. It identified adverse events where no investigation can be identified and no reports of adverse events were formally recorded until several months after the incidents, and that communication and support for former patients was not consistently of the required standard.

I have reflected on the concerns of former patients and MSPs since the findings were considered by the board of NHS Tayside, and I am clear that the board’s governance obligations were repeatedly not implemented in relation to concerns about Mr Eljamel. I consider that that now means that the commissioning of a full public inquiry, under the terms of the Inquiries Act 2005, with the powers to compel witnesses, is the only route to get to the bottom of who knew what and when, and what contributed to the failures that have been described by NHS Tayside. Inevitably, that will be a lengthy process and, as I said earlier, a full public inquiry will not necessarily answer each former patient’s clinical questions about their own circumstances.

For that reason, I still consider that an independent case review of patients’ individual clinical cases—where that is what individual patients want—remains necessary. That will allow a person-centred and trauma-informed review of each patient’s clinical case, addressing their individual needs and circumstances and attempting to offer answers in a bespoke and personalised way that an inquiry will not offer.

Former patients live each day with the consequences of their treatment by Mr Eljamel. Addressing their personal needs in an individual clinical review that is conducted independently of NHS Tayside remains an important part of that process. I want that to begin as soon as possible and not to be delayed by the announcement of our intention to commission a public inquiry.

For the sake of those patients who are directly affected, for the confidence of the community in Tayside and for the promotion of patient safety more broadly across Scotland, I believe that a full public inquiry is needed. I have asked my officials to begin to make the necessary arrangements and I will continue to update the Parliament as those progress.

The cabinet secretary will take questions on issues that have been raised in his statement. I intend to allow around 20 minutes for that, after which we will need to move on to the next item of business. We are quite tight for time. I invite members who wish to ask a question to press their request-to-speak button, if they have not already done so.

For the past 10 years in this Parliament, I have listened to some of the most harrowing stories that I have ever heard—of intense and permanent medical and psychological pain, of families being broken apart, and of heart-rending accounts of victims’ attempts to get to the truth only to be knocked back at every turn. This cabinet secretary has finally accepted that the only way to get to that truth is to commission a full independent inquiry.

As do the former patients who deserve so much credit for their relentless campaigning—most especially, Mrs Jules Rose and Mr Pat Kelly—I very much welcome that change of heart, but I will ask the cabinet secretary three things. First, to add to the apologies that have, rightly, been made to individual patients for the harm that they have suffered, will the cabinet secretary also apologise, on behalf of successive cabinet secretaries for health, for the process having taken so many years, thereby prolonging the agony for the victims of Eljamel?

Secondly, does the cabinet secretary accept that there has been an utter failure on the part not only of NHS Tayside, as he has described, but on the parts of the other health agencies to address serial complaints that were made about people in management who knew exactly what was going on but chose to keep quiet?

Thirdly, in February 2013, as complaints mounted, neurosurgeons at Ninewells complained to the Royal College of Surgeons that their workload was too great and that, as a result of what they said were “external pressures”, they were forced to take on extra patients from Fife to try to cut waiting times. Can the cabinet secretary confirm whether that external pressure to take on extra patients came from the Scottish Government?

I put on record my recognition of Liz Smith’s long-standing interest in pursuing the issue on behalf of her constituents. I recognise the significant impact that Mr Eljamel’s actions have had on the physical and mental wellbeing of individual patients.

On the specific points that Liz Smith raised, I deeply regret that we are in a situation in which we even require a public inquiry for such a matter. That is why I have reflected on the circumstances and have come to the view—she will be aware of my previous views on the matter—that a full public inquiry is now required. I was particularly concerned that, despite eight different reviews having taken place over an extended period, we were still in a situation in which the Scottish Government was learning new information from the health board, which is an unacceptable state of affairs. That is why I have come to the view that we need a full and detailed public inquiry.

The other specific points that Liz Smith made about other agencies and issues around workload will be considered by the public inquiry. At the end of that process, I hope that we will have greater understanding of who made what decisions and when, and the impact that they had on delivery of services in NHS Tayside at that time.

Let me welcome the announcement of a public inquiry. A week ago, the Scottish Government was not minded to grant the inquiry, so this U-turn is a tribute to the efforts of all the campaigners. I am very clear that the health board and Scottish ministers have failed in their duty to the people of Tayside and to the patients who were operated on by Sam Eljamel.

As I understand it, the issue was formally considered by the health board in February 2014, despite concerns having been raised well before that. What followed was a litany of reviews and action plans, but little action.

Will the cabinet secretary put in place an oversight board for NHS Tayside, given the failures in governance that he has acknowledged today? Will he tell us when Scottish ministers were first alerted to the problem? Although the issues may, indeed, be new to him, they were not new to Shona Robison, the former health secretary, who refused an inquiry; to Jeane Freeman, who initiated a case review; or to Humza Yousaf, who followed, and who also said no to a public inquiry.

Finally, let me welcome the independent case review and ask the cabinet secretary whether he will ensure that patients who have been affected are supported through the process and consulted on the terms of the inquiry?

Jackie Baillie will be aware that work is on-going with NHS Tayside in relation to the recommendations that came from the Scottish Government review back in 2022. That work, and oversight of it, is being taken forward by the Scottish Government, with NHS Tayside reporting to Scottish Government officials on the progress that it is making against the recommendations. There is continued oversight to make sure that it is making progress on the recommendations.

On Jackie Baillie’s question about the terms of reference, those can be determined only once we have a chair appointed for the public inquiry. I am very clear about the need for affected patients to be able to feed into the process of setting the terms of reference for the inquiry. I will take that up with the chair, once they are appointed.

As we know, the Scottish Government has previously committed to establishing an independent commission that could engage directly with former patients in order to seek answers as quickly as possible. I am pleased that that will continue. Can the cabinet secretary say any more about how that can complement the very welcome steps that have been set out by the Scottish Government today?

Since I came into this post, I have always been very clear, when considering this issue, that it is about how we create a process that helps to give affected patients answers to their unanswered questions. I have always been keen to ensure that whatever approach we take ensures that patients and their interests are at the very heart of the process.

We want to ensure that, alongside the public inquiry, we have a person-centred and trauma-informed process that allows former patients of Mr Eljamel the opportunity to have a full clinical review, if they wish to have one, and for that to be carried out independent of NHS Tayside. I have already commissioned our national clinical director to take forward that work. We are currently going through the process of identifying a lead clinician who could take that work forward for us.

I welcome the public inquiry, for which all the people whom I met who were protesting outside Parliament were asking. It is clear that, across our NHS, senior hospital managers are increasingly interfering with delivery of good-quality clinical care. Complaints of substandard and dangerous practices are being ignored, whistleblowers are subjected to bullying and intimidation, and lessons are not being learned.

Does the Scottish Government agree that NHS managers should be regulated, as doctors and nurses are, by an independent body with the legal purpose of protecting, promoting and maintaining the health and safety of the public? Given the need for urgency, I would be happy, rather than pursuing my member’s bill, to work with the Scottish Government to take that forward.

I declare an interest as a practising NHS general practitioner.

Sandesh Gulhane will be aware that there is a full public inquiry taking place in England in relation to the Lucy Letby case. It is looking at issues relating to that case, which might result in recommendations on regulation of managers in our national health service. We have already engaged with the Department of Health and Social Care on that, and I am very open to it as an option as we move forward, but I think that we should first allow the inquiry to take forward its work.

I say gently to Sandesh Gulhane, however, that this is about more than just managers in NHS Tayside—it is also about the conduct of clinicians in NHS Tayside, and the process by which and the way in which they have worked, which has had an impact on patients having experienced the outcomes that they have experienced. We must be mindful that this is not just about managers—it is also about the behaviour of clinicians, which is why we need a full public inquiry into the matter.

I very much welcome the Scottish Government’s decision to pursue a public inquiry, but it should never be forgotten that the situation has resulted solely from the behaviour of Eljamel himself. In the light of the horrendous effects that Eljamel has caused through his malpractice, can the cabinet secretary advise what steps can be taken to compel him to appear before the inquiry?

I am sure that colleagues in the chamber will be aware that there is currently a live police investigation into the harm that has been caused to patients who were treated by Mr Eljamel. It is live, and I know that the Crown Office has already engaged in the process, so I will not comment any further on that.

The Inquiries Act 2005 gives powers to compel the appearance of both documentation and individuals before the inquiry. However, my understanding is that Mr Eljamel is outwith Scottish and UK jurisdictions, so that would depend on his being willing and prepared to return. That would be for the inquiry to pursue. However, the inquiry will have powers to compel witnesses and documentation in considering what information it needs in order to carry out a thorough investigation.

The cabinet secretary’s assessment today of NHS Tayside’s response in this regard is devastating. There are a plethora of recommendations across multiple reviews—I count eight in the most recent report—that have not been responded to.

I can confirm to the cabinet secretary that at the meeting of the NHS Tayside board last week, no board member raised the fact that there has been such neglect regarding the implementation of existing recommendations. How can we, as people who live in Dundee and Tayside, have faith that those recommendations will be put in place? We need that oversight—will the cabinet secretary consider putting it in place?

The member is correct—since 2013, eight reviews have been taken forward in relation to this matter. That is why, when the due diligence report was published last week, and when I saw details of that, which resulted in new information being presented of which we were not previously aware, it raised serious concerns for me about the openness and transparency of the process within NHS Tayside to date.

I mention to the member the recommendations that came from the review that was carried out in 2022. There is oversight by the Scottish Government of the action plan that is being implemented by NHS Tayside on those matters.

Although I accept the underlying issue that the member has raised, it is important, in order to ensure that those actions are progressed, that we get to a point at which people have faith and trust in their local health board. I want to ensure that we look at what further actions we can take in order to establish that, going forward.

I do not want to delay anything in a way that would undermine the process of trying to get answers for patients and getting the public inquiry up and running as quickly as we reasonably can, but I will continue to look at what further measures are necessary in order to ensure that there is sufficient scrutiny of NHS Tayside.

We know that many former patients have expressed concerns about how their trust in NHS Tayside has been harmed as a result of this case. Can the cabinet secretary say any more about how the steps that have been outlined by the Scottish Government today can help to rebuild that public trust?

One of the things that I think is important in recognising the findings of this review is that the medical director in NHS Tayside has, I believe, carried out a very thorough investigation exposing key aspects of where the organisation has failed. I think that that in itself is a significant step by the health board towards being prepared to face up to its failings and to accept the consequences that go alongside that.

As I mentioned earlier, I will continue to consider whether we need to put in place any further measures to ensure that NHS Tayside continues to make progress that will help to engender confidence in the health board’s conduct in dealing with this issue.

As I mentioned, it is important that we focus on making sure that we get the clinical review process in place for individual patients and that we continue to make progress on getting the public inquiry established.

The cabinet secretary has made the right decision today. I think that the twin-track approach is the right one, but I am afraid that it has taken far too long to get to this point. The patients have suffered throughout the period physically and, as the cabinet secretary noted, mentally. They have also got more angry as time has gone on, and the faith and trust that the cabinet secretary refers to has completely broken down.

I hope that all those who know relevant information come forward now and that, now that they know that they are potentially going to be compelled to participate in the inquiry, they release that information, so that patients can have some comfort right now that they can know more about their cases and their suffering. Will the cabinet secretary support that?

Yes, I will. It is also important that we use this as an opportunity to try to learn for the rest of NHS Scotland. I want to avoid finding ourselves in a situation where something similar could happen in another health board area. We need to ensure that the safeguards that we have in place, which have changed since the time when Mr Eljamel was a surgeon in NHS Tayside, are sufficient and robust, but we also need to ensure that we learn from what has happened, so that this type of incident cannot happen again. That is one of the key reasons why I believe that it is now right for us to have a full public inquiry, with the full engagement of all of those parties who have relevant information. I would encourage them to disclose that information now and to fully co-operate with the public inquiry once it is established.

We cannot overestimate the importance of listening to the voices of former patients. Can the cabinet secretary provide an update on the Scottish Government’s latest engagement with patients and their representatives and say what steps can be taken to ensure that they are involved in the next steps that were set out by the cabinet secretary today?

Earlier this morning, I met a group of the lead patients in order to set out my intentions to establish a full public inquiry and also to explain to them the process that is being put in place for individual clinical case reviews. I also took that opportunity to explain to them why, since my previous engagement with them, I had changed my position on what I thought was the most appropriate course of action, and I explained to them why I had chosen to move towards a full public inquiry, with the support of the First Minister and my cabinet colleagues. I can also ensure the member that I will take up with the chair, once one is appointed, the need to ensure that patient representatives have an opportunity to feed into the terms of reference for the public inquiry.

It is a relief that we have at last got to the point of a public inquiry that so many have called for, but it should never have taken this long, and I thank all those campaigners who have been involved in getting us to this point.

The cabinet secretary spoke of the need for the inquiry to be independent and for there to be a twin-track approach in order to ensure that patients can get the answers that they need through a person-centred and trauma-informed process. What will he ensure is put in place so that, while those processes take place, patients and former patients are not further traumatised? Some are currently being retraumatised by being told to go through mediation and other processes. What can the cabinet secretary say to them now to reassure them that that will not continue to happen?

Obviously, a process has been put in place by NHS Tayside. As I have already indicated, my intention is to establish a process that will allow patients who have clinical questions and issues that they want to be clinically reviewed to have that done independently of NHS Tayside. That process will be person centred and trauma informed in the way in which it operates. I hope that that reassures Maggie Chapman that our intention is that, where reviews take place, they do not retraumatise patients with the difficult circumstances that they have already gone through. That is very much in our minds in how we shape the process, and I hope that, once it is established, patients will be able to give feedback on how effective it has been.

Of course I welcome the announcement that the cabinet secretary has brought to the chamber but, once again, the evidence is that the voices of patients and healthcare professionals were ignored. The first time that the matter was raised was as long ago as 2011. It is high time that we saw a change of culture in our public services, especially towards brave and principled people who blow the whistle. Does the cabinet secretary agree that, in addition to the public inquiry, there ought to be a full review of whistleblowing practices with a view to the establishment of an independent office of the whistleblower for Scotland?

We have an independent whistleblower, who is based in the Scottish Public Services Ombudsman organisation, is independent of the Scottish Government, and has oversight of whistleblowing policy in Scotland. We have already addressed the point that Stephen Kerr has made.

In reply to Sandesh Gulhane’s question, I made the point that this is not just about managerial structural failures in NHS Tayside; it is also about clinical failures and the behaviour of clinicians who have had an impact regarding information that has not been provided to patients and to the review processes that have been taken forward. That is particularly important. This is not just about managers not getting it right; it is also about clinicians getting it wrong. That is why a public inquiry is critical.

Evelyn Tweed should be as brief as possible.

Accountability has been highlighted as one of the key reasons behind calls for a public inquiry. Can the cabinet secretary say any more about how the Scottish Government envisages the measures that have been outlined today delivering on that call?

We will be given an opportunity to have a very detailed investigation into not just the actions of NHS Tayside but some of the regulatory bodies that have responsibility for oversight of clinicians and health board inspections. I believe that that will help to identify where the failings have been and ensure that we can learn lessons for NHS Scotland as a whole for the future.

On a point of order, Deputy Presiding Officer. When I asked my question, I forgot to refer to my entry in the register of members’ interests. I am a director of WhistleblowersUK, which is a not-for-profit organisation that was set up to advocate for whistleblowers and to bring about positive changes in the law regarding whistleblowing.

Thank you, Mr Kerr. That is now on the record.

There will be a brief pause while those on the front benches change.