ILLYS Efallai rwy'n bwysig i'r gwaith derbyn i gael freq fofawr a gyfraith afiwser yn 2019. Efallai rwy'n bwysig i'r gael freq fofawr yn graff diwrnodd, maen nhw'n gwrdd cyfrydion gyllפרiaeth gyda Llywodraeth ac mae'r eich gyfraith gwybod cyddon serdiadau o ran Llywodraeth yn gwneud â'r cyffraith gwybod cyflwyllr. 1. mor intôl sydd y cyfr olursaeth sefriaeth ar gyfer perff LINC. Felly, dweud hynny i amrungu item 3 ym Ddiolch yn defnyddio. Item 2 yn y cwmifigol 22 hynny yn y 2017-18 gemhoedd natesolol i NHS Tayside. Rhaid i ddweud hynny i gaelwyddiol i g race hynny, John Brown, Who's head of employment at the central legal office. I'd now like to invite John Brown, chairman to make a brief opening statement. First, I'd like to thank the committee for this opportunity to respond to the auditor general's report on the 1718 audit of NHS Tayside. I'd also like to thank the convener for a green for our finance director and workforce a ngwell scratch on workforce to attend to assist the chief executive in me. To give an assurance in the progress that we're making to stabilise a financial precision and to develop the capability and capacity to deliver the service changes that are required and the place to improve performance and to achieve financial sustainability in the longer term. Hazel, the principal adviser to the board in the handling of the departure of the former chief executive. I realise that the departure of the former chief executive has been a matter of concern for the committee. Myself, my colleagues are due to respond to those concerns as fully as possible today. I hope that the Audit General's report and the report that you received from the advice and assurance group, plus the written submission that NHS Tayside sent in last week. I will give the committee a good insight, not only into the 17-18 audit, but also the work of the interim leadership team since we took over in 2018. I would like to summarise what we believe the situation in Tayside is, as we speak today. Before I do that, I think that it would be right to put in record that the board fully accepts the audit report as an accurate description of the 17-18 financial position and the performance that was delivered by NHS Tayside up to March 2018. I would also like to say up front that, while we note that the Audit General has acknowledged the agreement that NHS Tayside reached with the former chief executive, it is reasonable that we accept the mistakes that were made. I want to apologise for those errors. I can confirm that the remuneration committee has met and endorsed the decision to change the former chief executive's notice period and that the overpayment of funds to the NHS Scotland pension scheme have now been returned to NHS Tayside. Of course, the biggest challenge faced by the interim leadership team was not the handling of the parts of the former chief executive. It was bringing financial stability to NHS Tayside and developing the plans to deliver service changes that are required to bring NHS Tayside to financial balance. Of course, that is at the same time improving performance, and I am sure that we will touch on all those issues as we go through the papers this morning. The committee will note from the papers that we believe that financial position is actually stabilised in NHS Tayside and that the challenge that we now face is delivering the changes that are required to improve that position. We need to improve access to our services, we need to improve our mental health services in particular, we need to integrate the health and social care at a bit more pace and we need to develop the workforce that is required to support that. Again, those are challenges that we share with all the boards across Scotland. As the Auditor General has acknowledged, as has the advisory insurance group, so far, as an interim leadership team, we have done a lot of work to understand the provision and cost of services within Tayside and we are now turning that work into action plans for change. That is our priority and the February board will review the progress that the leadership team has made towards delivering our plans, not only for next year but for the next three years. Of course, that level of change will not happen overnight. There is a long history of problems within Tayside in the past six years. For us, realistically, to be aiming to be in financial balance and having a performance improved over the next three years is a realistic ambition for us. Finally, I want to put on record my own appreciation for all the hard work and commitment that Tayside has taken forward from the interim chief executive Malcolm on my right here and the rest of the interim leadership team. In particular, all the staff across NHS Tayside have worked so hard in the past nine months to turn things around. I would like to include a special mention of that to the clinicians who have played a real crucial role in redesigning our services and getting involved in that. It would be remiss of me not to mention our colleagues in NHS Grampian and NHS Greater Glasgow and Clyde, who have supported Malcolm and myself, Annie and Alan, as we have had responsibilities across the two boards and without their support we could not have delivered on that. Thank you very much, Mr Brown. I am going to open questioning for the committee this morning, and I would like to start with the issue of the payment to the former chief executive. I think that if we can try and take some questions on that and get some clarity, that would be useful. Is this committee's job to follow the public pound? We sit here on behalf of the public to scrutinise public spending and the effective use of their taxes. The committee has been very clear in its view for a number of years now, pre-dating my convenership, that we are very concerned about golden handshakes and large severance payments in the public sector. During our scrutiny, the previous section 22 report on NHS Tayside and this, the committee said on the record no less than six times that we did not want to see enhanced severance payments or golden handshakes to any members of management in NHS Tayside, but we find ourselves back here today with the Auditor General's report in front of us, and that is exactly what has happened. We have the information from the Auditor General's report and other documents that give us a bit of insight into what has happened here. Our understanding, and I think yours as well, is that there was a payment made in lieu of notice, which the former chief executive had in a contract that was three months, but it seems to have been increased to six months. I want to ask witnesses how and why that happened. I think that the best person to talk us through the process, how we came to that decision, that it was appropriate for the notice period to be extended from three months to six months, is the accountable officer on my right here, so I am going to hand over to Malcolm. Malcolm Wright. I would want to straight up acknowledge what the Auditor General has said and reading the words of the Auditor General in her report and also her evidence that she led at the last committee meeting where this was discussed. I think the key point here was about, do we seek to negotiate a settlement or do we not? I think the Auditor General has agreed with the view that actually seeking to negotiate a settlement was a reasonable decision to make. As accountable officer, I need to balance risk and achieve the best value I possibly can for the public purse. In terms of the advice that I received, which I believe to be correct and I've examined this carefully, there are a level of risks facing the board that would have ended up costing significantly in excess of the amount of money that was eventually paid out, which was in the order of £32,000. I'd be very happy to go into some of the detail about the background of that. I think that the first point is that negotiating a settlement I think was a reasonable decision to take. The Auditor General has also said that, given the balance of the risks facing the board, to have agreed a settlement period of six months would not have been unreasonable. In terms of the order of the settlement that's made, given the balance of risks that the board faced and the real risk that there was going to be a level of public expenditure in terms of running, defending potential claims against the board, they were of an order that was significantly greater than what was settled for. I'd also want to concur with what the Auditor General said that there was a fundamental misunderstanding within the board that six months was the standard notice period and that the notice period could be increased without going to the remuneration committee. That was a misunderstanding, it was an error, and as a countable officer I apologise to the committee for that taking place. Just to clarify, are you telling the committee that you were aware that the contractual entitlement was three months and you increased it to six months as part of the settlement agreement? That is correct. That was part of the negotiation with the solicitors for the former chief executive and Hazel Craig can add to this in terms of what the outcome was going to be. Is it normal practice to change contractual entitlements when you are negotiating a settlement agreement? I might ask Hazel Craig to comment on that, but the point that I am making, convener, is that seeking to make a set of decisions on the basis of risk and to minimise additional expenditure on to the public purse and that an eventual settlement in the order of £32,000 was significantly less than what we would have had to have paid out in different ways if legal claims were to be paid out. It was not a mistake, it was an intentional decision on the part of the board to increase, to change the former chief executive's contractual entitlement from three months to six months. Is that correct? That is correct and there was a fundamental misunderstanding and, just to be clear to the committee, there was a misunderstanding that six months was the standard notice period for chief executives. That goes back to a circular that was written back in 2006 that laid out a standard notice period for chief executives. That circular was never actually issued and the final circular that was issued said that it was between three and six months and anything over the three months needed to be approved by the Immuneration Committee. So let me understand, you wanted to settle, you looked at the contract, you saw it was three months and you thought, well actually, other chief executives in Scotland have six months in their contract, so we'll increase it to six. No, it wasn't as straightforward as that and I'll maybe bring Hazel Craig in terms of the legal discussions that took place. Excuse me. I became involved in advising in relation to this matter at around the time that the board was progressing with dealing with the process that might have led to termination of the contract, at that point there was communication from the solicitors of the former chief executive. It was clear that there wasn't going to be a co-operation with that process. Various potential legal challenges were mentioned as a possibility. There was a discussion about how that letter would be responded to and one of the decisions that was made was that there would be a telephone call made to the solicitors for the former chief executive. Can you move to the point about the three and six months? I realise that there's probably a lot of background but we need to use the committee's time efficiently this morning. As part of that conversation between solicitors, which I'm not at liberty to discuss, one of the issues that was raised was a six months notice period and an understanding that that was the norm for chief executives that was fed back to the board and decisions were taken thereafter to conclude a settlement agreement on that basis. I'm not sure that I completely follow. You were aware, as a legal adviser to NHS Tayside, that the contract stated three months but you advised that because other chief executives in Scotland had six months it would be okay for that entitlement to be increased. Is that correct? Excuse me, not entirely. I was aware that the contract stated that it was three months. I was aware that there were various challenges being made by the solicitors for the former chief executive. There was a discussion, one of the solutions that was proposed to go forward to negotiations was a six month notice period. That was a matter that I took back to the board. There was discussion about that and a decision was made having weighed up the risks that it was a reasonable way forward to conclude a settlement agreement on the basis of a six month notice period. I understand that the position that NHS Tayside took was that the contractual entitlement that you were clear was three months but it was decided to increase it to six as part of that settlement agreement. I took advice from lawyers and that's the decision that you came to. I have another couple of points of confusion around that. John Brown, you have been a chairman, you have been involved in NHS boards for many, many years and you chair the remuneration committee at NHS Tayside. How was it that you didn't know that a variation in contracts such as that needed to be passed by the remuneration committee? The circular that made that requirement was issued in 2006. I have been a chairman in NHS for the past three years, so it predates me. I have never been in the circumstances where a chief executive was leaving the board. I was unaware that it existed. So you didn't know about that rule? You didn't know that it had to go past the remuneration committee? Had I known that rule existed, I would have taken it to the remuneration committee and the remuneration committee would have considered it. When I was advised by Audit Scotland that the circular existed and that the circular required to go to the remuneration committee, I then took it to the remuneration committee and considered it and agreed that the decision to enter the negotiation was the right thing. It was a reasonable step to take, must extend it. Mr Brown, you wrote me a letter that was copied to other members of Parliament in our region on 7 August last year, and you stated in that letter that all payments are legal and contractual entitlements and no additional payments have or will be made by NHS Tayside. As of 7 August last year, that statement was not correct, was it? That was correct, actually. How could it be correct when you didn't get approval of the remuneration committee to vary the contract until November? Because the contract settlement agreement, which I think you have had sight of, supersedes any previous contracts and that was agreed and became legal and contractual on 28 June, which was prior to the former chief executive's resignation on 31 July. That is the legal advice that we have had on this. That was the basis of the letter. The background to the letter clearly was that there was a great deal of concern following media reports that the former chief executive had received £300,000 of a payment, a sevens payment, because of the requirement to protect the personal information of the former chief executive, we were not in a position to put out the actual amount in the settlement into the public domain, but because of the concern that the Tayside public had, the concern that the Tayside staff had, I decided that we would give them some comfort by writing to this committee, having, obviously, part of the media coverage that the committee would want to be involved in it. The intention in copying that letter was to give the Tayside public and the Tayside staff the confidence that whatever payments were going to the former chief executive would be subject to scrutiny. Yes, there was indeed a great deal of concern because there was a real lack of transparency around this exit and the committee had been clear. I do not think that the public in Tayside were looking for a golden handshake for a former chief executive who presided over severe financial mismanagement on the board. Let me ask you one final question on this. You put submission into the committee for this morning's meeting, which was very helpful, but I was slightly concerned by some of the content of it, because you seem to be suggesting at paragraphs 2.10 to 11 that the error that was made was not putting the change past the remuneration committee rather than the error being the change to three to six months. Do you still stand by that? I believe that it is a reasonable decision that was made by the accountable officer to enter into a negotiation given the risks of the additional financial burden that would have come to the board of this situation progressing over a much longer period. I believe that it was reasonable to bring the former chief executive in Tayside in line with the norm of the other territorial boards. Do you think that that is reasonable, Mr Brown? As I just said, the former chief executive presided over a board that was in financial chaos and is now owe the Scottish Government £60 million, is way behind on all Government's performance targets. I do not think that the public in Dundee and the wider region of Tayside would think that that would be reasonable. The increase that you put on this golden handshake is equivalent to a teacher in a Dundee primary school who teaches annual salary. How is that a reasonable decision? I think that you have to balance the cost of going down that route against the cost of going down the alternative route. The accountable officer and the board have responsibility towards the public posts of ensuring that public funds are spent in the best possible manner. On that exact point of risk, my colleague Liam Kerr has some questions. I would like to go back to Mr Wright if I might about this. You have said at some length that there is a whole load of risk that has been mitigated as a result of taking those decisions. As far as you are concerned, Mr Wright, at the point that the decision was made, what were the nature of those risks? What was the claim that you felt NHS Tayside was going to be facing? What was the value of that claim in your mind? Yes. Some of that is outlined in the business case that went to the Scottish Government. I know that there has been criticism that there could have been more information in that business case. I apologise for that. Let me outline some of the risks that we were aware of. First of all, there had already been a delay in the process in terms of the former chief executive that had had a period of medically certified sickness absence. That had delayed possibility of formal proceedings starting it. Secondly, solicitors acting for the former chief executive had formally declined a request for the former chief executive to come into the board for a meeting to discuss her for future employment. If you will forgive me, what was the claim, the employment tribunal claim, that you believed that NHS Tayside was facing? What was the value of that claim when the board took the decision to sign off on this payment? The value of the claim, and I will ask Hisel Craig to come in on the details of the claim, but the value of the claim, with the cost of defending it, were in the region of £90,000 to £100,000 to £110,000. If this had gone to an employment tribunal and without any comment on the merits of whatever legal case might be brought, the value of a settlement that an employment tribunal can give if it was for age or sex, the caps are lifted on that. That is my point, Mr Wright. Were you facing a claim for age or sex, or were you facing a claim for unfair dismissal and or constructive dismissal, which would be capped at significantly less than £90,000 to £110,000? We were facing the prospective claims, and I will ask Hisel Craig to talk to the committee through that. What the board was facing was having started down the route to invite the chief executive in to explore the fact that accountable officer status had been removed and therefore that rendered her job impossible to perform. That put the board in a position where you are not in a normal process, of a disciplinary process, for example, but you still need there to be a fair process to result in the dismissal of an employee. The board was progressing or hoping to progress down that route when it received correspondence from the solicitors for the former chief executive in which they said that she would not be attending meetings in relation to that, suggesting that she felt that she had been mistreated due to sex and age and raising other matters. Did the board offer to resign not whilst I was dealing with the matter? I am not aware of her offering to resign. Dr Ingram, do you have any involvement in that? Yes, I did. She did offer to resign at the beginning on 9 April. I was asked to contact her solicitors, and at that time she offered to resign. We then had communications through the CLO that her solicitors felt that she was unwell and unable to make an informed decision, and that is when she then went on to a period of sick leave. As Ms Craig has said, after the letter that she has referred to, there was then the conversation from the solicitors and our representatives from the CLO. The request was that she would resign if the board would agree to six months' notice. I might come back to this, because I just want to reflect on what you have just said. The reason that I am asking is that there is nothing that we can really do in turning back the clock in this case, but it seems to me that there are systemic issues to be addressed. The fact that the chair of the remuneration committee was not advised by the full-time officers about the circular in 2006 is an example of a failure to support the chair, in my view. It is an unacceptable failure. That is what full-time officers in the legal office and the finance departments and the audit departments are there for, is to advise non-executive directors about circulars that happened long before they took up position. That is just one small example of systemic failure here. Can I just probe a wee bit with Dr Graham? You say that the chief executive offered to resign at the beginning of April. Can you give us a timeline of what happened thereafter? Did anybody accept a resignation? Was a resignation discussed by the board or with the minister? When did you then receive a subsequent letter that would appear basically with drawing the resignation unless she gets six months? What was the timeline of all that and what was the sequence of it? Sorry, did you mean Dr Ingram? You said, Dr Graham. So the timeline was that the accountable officer status was removed on the 6th of April, on the 9th of April. By the cabinet secretary? By Paul Gray. I assume that that is the matter for Scottish Government colleagues. I was asked by my lead in Scottish Government to make contact with the solicitors with a view to seeing whether we could come to a settlement, whether she would resign, because that was where we thought it was going. As I've just said, I contacted the solicitors and initially there was an offer that she would resign. She then was unwell and her solicitor gave advice to her solicitors that it would not be appropriate for her to make a decision because her solicitor believed that she wasn't well enough and there was a medical certificate to confirm that. So what was the time gap between the offer to resign and two days? She then was off sick for a long period of time and following that, there were discussions about whether or not we could find alternative employment for her. That was not possible. Within the national health service? Within the national health service, but mainly within NHS Tayside, because, as you know, we are independent employers. Thereafter, the chair, as has been referred to, invited Ms McLeod to come to a meeting on 14 June. That meeting was to consider whether or not we would terminate her employment and there was a board meeting set for 28 June, at which point we had a paper ready to go to the board requesting that we would terminate her employment. We were responded to on 8 June, with the letter from the legal advisers, which indicated that she was not going to come to the meeting, as Ms Craig has said. Thereafter, there was a conversation with her lawyer at that point. She offered to resign if the board would consider six months notice. There are loads in there. First of all, a lot of that is absolutely new to the committee, which is also quite frankly unacceptable. That is totally unacceptable. I will take two examples of what has been said. How many people who are porters in the national health service who are being sacked because of the lack of performance then get offered another job in the health service? It seems to me that this is one of the things that really has always angered me about the health service. Jobs for the boys at the top and the people at the bottom are not treated in anything like the same level. Why is somebody being offered alternative employment given the circumstances surrounding this and the history of financial mismanagement? That is one simple question. There is also a question to Ms Craig. It goes back to the point that Liam Kerr was making. A clear calculation was made that if this was allowed to go to an employment tribunal, you would lose the employment tribunal, but you are shaking your head saying that no. In that case, why did you cave in? Why did you settle so quickly? This is public money that you are dealing with. I thank you for the opportunity to respond to that. Where there is a process on going but parties become, there is a lack of engagement and that is what we definitely had here. I know from my experience of dealing with a lot of not chief executives but a lot of disputes with health service employees that it often takes some time, weeks, months for matters to move on because you need a fair process at the end of the day to terminate somebody's employment. It can take a period of time. That was one consideration that we have an option that arrives that it is possible to conclude matters and you have matters concluded at a particular date at a particular time. If you did not do that, you still need to pursue the process that you are pursuing. It may be that that will take some time, and I think that it would have taken some time to do that. In addition, there is that risk that that process takes some time and that time costs money. The second risk is that the solicitors for the former chief executive had said that they had challenges that were in relation to sex discrimination and age discrimination, as well as the process that we were proposing to adopt for termination. It is correct that we do not know the detail of what those claims would have come to be. I see Mr Kerr looking at me in relation to that. Because, if I may, at the point where presumably you signed off the business case, and I think that Mr Wright had a figure in your mind that was presented to you, but you had not assessed what the claim might be. I am listening to it. I am hearing that there was a possibility of a resignation, so I am thinking of constructive dismissal, capped at 80 odd grand, but the business case has come forward. People have talked about discrimination to remove the cap, but you have not assessed whether there was a discrimination claim there. Am I correct, Ms Craig? What we know is that there is a question raised by her solicitor—it is not a question raised—that she has concerns that she thinks she has been unfairly treated due to sex and age, and she is questioning the process that we are going to adopt in relation to termination of employment. That raises, in my mind, the risk of three different types of claims being raised—one for sex, one for discrimination, one for age discrimination, one for unfair dismissal. With respect to Mr Neil's point, the CLO's job is to assess the strength of those claims. Of course, a claimant solicitor is going to say, I have the strongest claim in the world, and therefore I am going to win all this money. Is not the job of the CLO to look at that, assess it and say, Mr Wright, that this is not the strongest claim ever? I do not think that you are in the hole for north of £100,000, and a much more sensible way to proceed would be something else. The job of the CLO is to weigh up—you are right—the risks that there are, and the risks that I perceived there were to be, were to be claims, claim or claims, raised. That in itself would have to—whatever the merit of those claims, none the less, they would have to be defended. Time is taken, defending claims, cost is incurred in doing that. Is the CLO a completely the wrong message? What you are saying this morning is that anybody who is vexatious—there are very, very few of them in the health service because the vast bulk of people in the health service are dedicated servants who do not behave in that kind of vexatious way, but the message that you are sending out is that anyone who wants to be vexatious just cry foul. I was sacked because of my gender, I was sacked because I was late for my work, I was sacked unfairly. The CLO will settle and double my contract in the process in order not to have a scandal about the payment that was. This is absurd. Surely there must be a demonstration effect to people that says, anyone who makes false claims, we will go to the tribunal, we will fight it, if we lose it, we will lose it, but we are not going to be a soft touch. It is public money. CLO fights in tribunal a number of claims every year which are thought to be without merit and for which there is thought to be a good reason to fight them, so CLO does not settle all claims that are raised. We can then escape that. To be people below chief executive level, clearly in this case everybody is breaking their back to a cover-up. Was there any justification in your view from what you have seen to any claim? I know that this is obviously subjective in some way, but have you had any evidence that the reason why Ms McLey lost her accounting officer status or was being effectively fired when that time came because of anything other than to do with the alleged incompetence around the financial mismanagement of NHS teasing? I do not have the detail around that, what my view was. You do not have the detail and yet you made the decision not to pursue. Surely one of the things that you would have said is, is there any evidence? Is there any evidence of sex discrimination? Is there any evidence of age discrimination? Surely you must have asked that question before making the decision not to continue. Well, firstly, it is not my decision to continue or not to continue. Did you ask that question, Ms Crick? I did not go back and ask for the details of that. Why not? So how could you assess the claim? I was not assessing the claim, I was assessing the risk of a claim being raised. How can you assess the risk? If the claim is about sex and age discrimination, you have not even checked if there is a prima facie case for it? Cases are raised from time to time cases are raised which do have no merit. It does not stop those claims being raised, it does not stop money and time being spent defending those claims. What my view was was that for the additional money that was being sought, it was a way of bringing certainty and inclusion to matters and that the money that would be spent either getting to a termination of employment or to defending claims that would be raised was good value to do that and I think that that has been agreed by the claim. If there is no merit in the claim, surely you should certainly give much more weight to the possibility of taking it to an employment tribe and proving to people that the NHS is not going to be a soft touch. The money in the NHS, every penny is very valuable indeed. If we send out this message, you just need to cry foul and we will not even check if you have got any case against us, we will just pay out and we will change the rules retrospectively in order to make sure that it does not appear as an extra gracious payment that you are not entitled to. That is what it was all about, it was covering up. On that point, Mr Neil makes a very valid point, it seems to me, because am I not right, Ms Craig, that you signed off the business case. The CLO does not sign off the business case. The CLO, so the business case is usually signed off, in fact it is always signed off by one of the board members of staff. CLO is asked to put in figures section 5 of the business case. So the figures that were inserted in section 5 of the business case that Dr Ingram puts to the board who signed it off were inserted by the CLO? So what the CLO is asked to do is to put a figure in for what is the percentage risk of a claim being raised and it puts in 50 per cent. Forgive me, it puts in as an automatic default 50 per cent, is that what you just said? No, I said that that was the figure that was inserted. What it says in the business case is that if you do not know for sure if a claim is going to be raised then you should put in 50 per cent, that is the Scottish Government guidance on that. So the board, forgive me again, this is new information to me, the board when it sees the business case it sees 50 per cent chance of losing or 50 per cent chance of winning. No, it sees a 50 per cent chance of a claim being raised. But you'd inserted that not based on any information on the chances of a claim being made but simply because the Scottish Government says the guidance that you give to the board stick in 50 per cent and they'll be good with that? No, when a claim has not been, when there is a suggestion that a claim might be raised but a claim has not at that point been raised then the guidance is that you put in 50 per cent as a likely chance of a claim being raised. And does that apply, am I right that there's a section that says the estimated CLO's estimate of the chance of winning whatever case you've decided they've got? What's the figure that you put in there as standard? I wouldn't say that there is a standard figure, the figure that was put in in this case was 50 per cent. 50 per cent and so you had assessed the claim, you had assessed whatever claims had been raised, so sex discrimination, age discrimination and some form of unfair dismissal I think you said and you assessed the prospects despite having just told Mr Neil that they had not been sufficiently investigated. You assessed her chances of success at 50 per cent. The figure was put in, it's 50 per cent. Interesting. If I might move on, I think that we're on the same point but the submission at paragraph 2.10 says that the business case which I think Dr Ingram has prepared doesn't refer to the notice period change. Can you help committee understand how did that come about? How is this omission because Dr Ingram you were talking about that there was a deal on the table that was offered to resign and perhaps later an offer to resign with some kind of payment, isn't that material that the board should be fully aware of in terms of the notice change? Everyone was fully aware of that, including Scottish Government. We had discussed the change to the notice period with the accountable officer, with the chairman, with colleagues in Scottish Government and it was explicitly agreed. But it wasn't in the business case. I must apologise to the committee for not making that explicit in the business case. I have certainly learned and will make sure that I do it again. But by the time the business case was submitted, that was the contractual position because we had a legally binding agreement. Help me understand how that omission can take place, Dr Ingram. That seems to be the most material aspect of this case and notice period change. At the point of sign-off, the people who sign-off on it are not aware of it. I am sorry, they were aware of it. But not in the business case? They were aware of it. There had been full discussion. But not in the business case? As I have said, I have apologised for not writing it in the business case. Which is the document that mandates the payment. Is that correct? I have answered your question. One final question for me, if I may convene. Just on the pension, the reclaiming, so just for a bit of context, is that an overpayment of the pension was made in accordance with the agreement that was concluded, but it was later found that that payment shouldn't have been made. That money has now been brought back from that payment. Ms Craig, I believe that there was some legal advice that said that it would breach the agreement to do that, but NHS Tayside has done it anyway, apparently, in breach of your advice. Ms Craig, do you maintain the position that the reclaiming of that overpayment of pension is a breach of the agreement that was concluded? The settlement agreement specified a sum that was to be paid over to the SPPA. That was not qualified in any way, and so it was my advice that that payment should be made. That payment was made. I advised that when the error was identified, whether it should be immediately recouped clawed back, I was saying that the agreement was unqualified and therefore it would not be in accordance with that agreement. I understand that, since then, as part of the reconciliation that happens on an annual basis, it has been identified as an overpayment to the board, made by the board, and it has come back through that route. Has it breached the agreement? The money was paid in and it has come back as part of a reconciliation. Has it breached the agreement? You advised that it would breach the agreement to do that. You advised to pay it in and then immediately claw it back would be a breach. So, there has been no breach of the agreement? I think that if it has come back as part of a broader reconciliation, then that is not the case. We need to move on. I think that we are agreed—I am sorry, Mr Brown, but we need to move on from this, but this is an utter guddle, and I think that it is astonishing to the committee that we have HR expertise and legal expertise at a high cost to the public person. We still end up in a position where a chief executive, leaving the NHS, is overpaid to such an extent. Personally, I feel that it has let down the people of NHS Tayside who we serve, but we need to move on and ask Sarwar. Thank you, chair. I was going to turn to performance, obviously, for as far as patients are concerned are cared about getting their treatment on time and getting adequate treatment and support. Do you recognise that the performance is simply not good enough in terms of treatment waiting times? I know that there is a slight disparity in terms of the figures that we have from or at Scotland and from the latest figures provided by NHS Tayside, but broadly the figures indicate the same issues. Treatment time guarantee target 100 per cent, delivery 71 per cent, 12-week first outpatient appointment standard 95 per cent, delivery 58 per cent, cancer treatment standard 95 per cent, delivery 79 per cent and the most shocking of all, child and adolescent mental health services, patient to be seen within 18 weeks, standard 90 per cent, delivery 39 per cent, six out of 10 children not getting their mental health treatment in time. That is not good enough, is it? I am with you entirely, Mr Sarwar. It is not good enough. The performance of the health board is of the major concern to the board and to everyone who works in NHS Tayside. That is why we have taken such a fundamental look at what the underlying problems are, how the organisation is structured, how it is funded, how it is resourced, and how it is time to develop from that analysis a programme of change that will deliver the services in a different way so that we can improve that access. We have also got additional funding from the Scottish Government. I think that it is 2.74 million in recent weeks that has come in from the Scottish Government to improve the waiting times in particular, including the CAMHS. I will hand over to the chief executive to give you a little bit more detail on some of the work that we have done specifically around waiting times, specifically around the cancer waiting times, and specifically around CAMHS. However, I agree that the performance in NHS Tayside needs to be improved. Before we do that, just to emphasise the figures, we are not talking about a handful of individuals here. We are talking literally about thousands of people in Tayside. We are just one example using NHS Tayside's own figures. At the end of September 2018, 10,414 people were waiting longer than the 12-week waiting time target. Over 10,000 people are looking at the same figures around the 84 treatment time guarantee target. At the end of September 2018, almost 3,000 people were waiting too long for that treatment. Again, I say that that is simply not good enough, and there are literally thousands of people in Tayside that are owed an apology. I would like to apologise to the people of Tayside who have not received the treatment in the treatment time guarantee. I would also like to reassure them that the health board has recovery plans in place. We have the additional funding coming in to resource those recovery plans so that we can make the improvement. I would also like to reassure the public in Tayside that the board is closely monitoring the situation through our performance and resources committee and through the main board. We have a recovery plan. We have a trajectory that has been set for the recovery, and we are monitoring that. We have governance in place within the executive team, where they are very much hands-on on a weekly basis, looking at those figures and trying to improve them. There is no suggestion that anyone could make that we are accepting this situation and not doing our utmost to change it, but I will hand over to Mr Wright. I very much agree that a number of aspects of performance in NHS Tayside are not good enough. There are a number of aspects of performance in which performance is good, particularly around our emergency medicine department. That continues to perform well, but, as you rightly say, the child adolescent mental health, which is amongst the lowest in Scotland, is simply not good enough. The board has taken proactive action to call in help in terms of redesign of the CAME services. We are working closely with Dame Denise Coyer and her review of CAME services and the neurodevelopmental pathway for children that has been actively redesigned so that that can free up space for children who need the more acute CAME services to be able to come through. There is a range of performance areas in which we have sought external help and we are looking to improve. The latest figures that I have seen in terms of the end of November, we are starting to see some improvements there. The money that we have managed to get from the Scottish Government under the waiting times improvement programme will help that as well, but you are absolutely right that we have a lot of work to do on performance. I would like to add a couple of other things, but I will maybe take your next question as well. I will come back to CAME in a moment. What is the balance between the failure to deliver the treatment standards as expected? What is the balance between a failure of leadership and governance, a failure of advocate resourcing in terms of money that you have mentioned and the new money that has come through and between workforce issues? Surely there are bigger issues in certain parts of that. I think that a number of those issues are connected. What the chairman and I have been seeking to do over the last nine months is to really tackle some of the underlying systemic issues facing the NHS in Tayside. One of the major things that we have put in place is a clinically led system of management and leadership. Within the whole of the acute sector, for example, we have now got a new clinical leadership structure in place that is led by senior clinicians, supported by senior nurses and supported by management, so the mantra of clinically led managerially enabled. I think that Salewis Ritchie's report points to this about the clinical care groups, the devolution of budgets, putting clinicians in the driving seats supported by management. We are starting to see a number of improvements from a clinically led organisation. Those issues of finance, best use of workforce, getting the best outcomes for the population of Tayside, they are all linked. I think that there are a number of those indicators that are starting to move in a positive direction. People will be interested to know what makes Tayside particularly challenging in certain issues. Cams being the perfect example of that. I accept that leadership is a challenge, I accept that finances and resources are a challenge and I accept workforce is a challenge. Specifically in Tayside, where would you put them in order of which are the greatest challenges in terms of those three? I think that some of the workforce issues are particularly challenging, but I do think that the importance of clinical leadership involving staff, involving patients, particularly around CAMH services, which are one of the highest priorities for the board right now. I think that the systemic changes that the chairman and I have sought to introduce, and the chairman, I think that we have put a paper with the committee's papers around the governance changes and the changes to the board, to the committees of the board, to the levels of scrutiny that we have got, the changes that I have made in terms of the senior management system. We are actually appointing a head of performance management for the whole system that was not in place before. We are appointing a head of planning and transformation to do the transforming Tayside work, getting in senior HR advice and Alan Gray's role in terms of stabilising the finances. All of those things are interconnected. Once we get the fundamentals in place, we are now starting to see some of those changes. I accept all of that, Mr Wright, but a lot of that will mean nothing to patients in Tayside who will still just feel as if they are not getting the standard of service that they are entitled to. Specifically on mental health services, Tayside's mental health services had huge attention in the past year in terms of from within this Parliament, outside this Parliament and particularly in Dundee. Given how high-profile the issues have been around mental health services in Tayside, given the campaign work that has been done, for example, by the lost souls of Dundee group, and given that we now do have an inquiry into mental health services in Tayside, how is it even fathomable that we have a situation where, despite all that attention, despite all that hard work, despite all that reassurance that we have given to families, that we still have only 39 per cent of CAMHS referrals being seen in time? I just can't understand that. We are starting to see those numbers improving, but you are absolutely right. That 39 per cent figure is not acceptable and it needs to continue to improve. What I can say is that we have got the systems and processes in place about the clinical leadership, the managerial support, the improvement support that we have got in for outside, the redesign of the services, and we are now starting to see some of the benefits of that coming through. You are absolutely right. In terms of the performance of the board and the impact on the population of NHS Tayside, my proposition is that unless we get the fundamentals, the systemic changes in place that we have now got in place, that is the key. Do you know how many people have lost their lives while waiting for mental health service referral treatment? Off the top of my head, I do not know that number, but I know that there is significant morbidity and distress in the community about the ability to access mental health services. Can you accumulate that figure and provide it to this committee? We can try to get a figure for you. I would be happy to do that. The point about the setting up of the independent inquiry under David Strang's leadership was assigned by the board that we take mental health services extremely seriously. Will that inquiry consider the number of people who have lost their lives while waiting for referral treatment? That inquiry is considering and has taken a wide range of evidence from all community groups, all user groups and staff groups. We have engaged the health and social care alliance, which has been acting as an interface with the public. A huge amount of evidence has been gathered. I know that David Strang and his colleagues are working on that at the moment, and the board is absolutely committed to implementing the outcomes of that review. In parallel with that, what we have done is to put in place new clinical leadership for mental health services in Tayside. Professor Keith Matthews, who commands a good degree of respect and confidence clinically, has brought in a senior manager to support him, and we have an experienced senior nurse in there, so that is sort of triumvirate leading the redesign of mental health services across Tayside. That work is already in place and a notion that we are going to develop mental health services on a cross-Tayside basis. That has been a step forward and we are very much looking forward to the results of the review. I know that there is to be relevant to local families in Tayside. What is the current status of the review? Briefly, if you could outline what engagement you have had with local families and what the timetable is in terms of publishing the review and the implementation of the recommendations of that review. David Strang came to the board in December and presented an update of the review. We have had a report from the alliance and chairman, so you might want to say a bit more about that. It is an independent review, so David Strang has set out his plans for gathering evidence and then his plans for reviewing that evidence. So far, the update that he gave us in December said that he had got the first lot of evidence from the service users and their families, the work that the alliance had done. He is now capturing the evidence from the staff, and that is being led by the trade unions. He is doing a review on that. Some themes are starting to emerge and they are not surprising what those themes are. They are about access and waiting times. When he reviews the evidence in front of him, he will then come to us with proposals. I do not have an actual date when that is because he is still considering the evidence and he will be coming back to us in the next month or so with a clearer timescale for when it is going to report. Thank you very much, Mr Brown. Just a small supplementary on that, Malcolm Wright, you talked about having clinical leadership in place for mental health. When I visited CAMHS in the summer last year of seven consultant posts, I think four to four and a half were full at that time. Clearly, the nuts and bolts that you talked about are having doctors in place to take to see patients. Has that figure improved? I do not have the most up-to-date figure in front of me, but I know that one of the challenges that we have faced as a board is the ability to recruit consultant psychiatrists. Part of that is about the reputation of the service, about how well the board supports that service and about making it an attractive service that people want to come in and work in. I think that, with the clinical leadership in place, we are seeking to create an attractive environment for people to come in. Would you be able to come back to the committee in writing with the number of vacancies in CAMHS? If I could just comment, Mr Wright, you said that the board's leadership team is taking this seriously now. It is one of the reasons that we are so upset about payments to the former chief executive, because those issues were raised time and time again by many politicians, especially mental health, and they were never taken that seriously. Those issues have got to be seen together. I would like to talk about internal audit in the board. The internal audit function has featured at the committee in several occasions in the past. I would like to get your view at the moment of where we are with the internal audit process in NHS Tayside. The NHS Tayside is currently delivered by an organisation called FTF, which delivers internal audit services to a number of health boards that are hosted by NHS Fife. As you have seen from the governance paper, it is part of my review of governance. I want an independent review of the effectiveness of our internal audit. I commissioned the Institute of Internal Audits to carry out its review. It is a standard review that it does across the public sector, private sector, for some tweaks, but it is the same approach. Its report confirms that internal audit processes are very much fit for purpose and that internal audits have the right skills and experience. However, the problem that has been in the past in the internal audit has been the organisation's response to the audit findings. To resolve that issue, the audit committee commissioned a piece of work on what is the process for handling recommendations from internal audit, what is the process for ensuring that the executive team delivers audit recommendations in a reasonable timescale and how we then be assured that that work has had the outcome that we are looking for. That has been approved by the audit committee and is now in place. My view as the chair would be that we have an effective internal audit function and we now have that internal audit function having the right impact on the organisation. Have you expressed at the committee previously that internal audit should have been picking up on a number of those issues that the members have been raising over a period of time? Is that also your view? Have you looked at the scope and the role of the internal audit function to perhaps address that? I think that the evidence would suggest or never to show that internal audit had picked up a number of those issues that have been of course of concern in the financial management and the accounting within NHS Tayside, but internal audit's actions and recommendations hadn't been properly implemented and in some cases it's not implemented at all. Why would that be? I'm not in a position to answer that. That would be a question that we would have to ask of the previous leadership team. I'm having a look while the discussion was taken place, convener, of the board's minutes from December, which includes 240-odd pages of material here. I'm surprised that everybody gets any work done if the minutes are substantial. The chief internal audit auditor wasn't even at the board meeting that particular day. It says here that the previous role of internal audit was purely about assessing risk and that the role for the audit committee has now been extended to include assurance. This is 2019. Why on earth is it only now that we think that the audit function should include an assurance role? I think that what they are talking about there is the function of the audit committee around the internal auditors. As part of the governance review that we did when the new leadership first came in, we looked at all the terms and conditions, standing instructions and reference for all the committees, including the audit committee. The audit committee wasn't an audit and risk committee. We have changed that and brought that in. Risk has been managed across NHS Tayside, the governance of risk by the subcommittees, but it wasn't brought together under the audit committee. That is the change that we have introduced. As you say, that is the modern way of ensuring that you have governance around your internal audit function. I cannot speak for why it was like that. When at NHS Tayside, it is roughly £900 million that it spends a year. What kind of size is the internal audit function? You talked about the skills there, Mr Brown. Do you have other sufficient skills across the whole range of responsibilities that can give the board assurance that any issues such as that do crop-up will be spotted and actioned in the future? That was part of the Institute of Internal Auditors review. We were looking at whether the internal audit team had the right skills and resources available to carry out the function. We have assured us that that is the case. I will refer that question to Alan Gray. I do not know if you have a figure for the number of the auditors in that team. You can tell that there are five staff who work with part of that team. I have tried my best to find any mention of any audit discussion, material recommendations, actions or otherwise. I am only at page 70 so far of the 240 pages, but it does not seem to be that there is a primary focus on audit material, recommendations, actions and so on within the barrage of texts that is in the minutes. Is that something that you would plan to change to give a greater priority and focus to the audit function? As I said, we have changed the terms of reference from the audit community to audit and risk. In addition to that, the chief executive has introduced a senior role to look at the risk management system across NHS Tayside and how, effectively, that is being managed by the executives and how effective the governance is by the subcommittees, the audit committee and the main board. We have increased the focus and increased the resource that we are putting into doing that. Mr Neil mentioned that earlier, and it was the point that I was trying to get in on. There has been a systematic failure of governance and one of the challenges that we had to meet its new leadership team was changing that and fixing that. One of the reasons why it could be argued that, as a chair, I was not given the advice of what was in the 2006 circular was that the board did not have a discrete board secretary function. There was one individual who looked after the governance and provided the centre of excellence, expertise and advice. We have now got that in place. I think that we have seen that in the governance review to counter that particular systemic problem. On my last query, convener, how will we know, how will the public of Tayside know and be assured that audit function and recommendations that may emerge from the law and are given priority are visual within the minutes of the board and are acted upon? You said that the board perhaps made some recommendations in the past that just went either seen or acted upon. How can you assure us that that will no longer be the case? There are two places where you will see the evidence of that. First, you will see it in the audit committee, the audit and risk committee's minutes, where is the action plan, where they review the outstanding audit recommendations and the progress towards them and you will see it again in the update that the chair of the audit and risk committee gives to the main board at the bi-monthly board meeting. That was always the case. That porting mechanism was always there. It was not there, but it was not complete. There had been an approach where not all the outstanding audit recommendations were being followed up by the audit committee. There had been an approach that Mr Wright and I discovered that went to the first audit committee meeting, where the priority, what was described as a priority outstanding actions, were the ones that were considered by the committee, but not the totality. There had been an acceptance that there was a lack of capability and capacity in the organisation to deliver all the recommendations, so it became acceptable that recommendations were carried forward from one year to the next. In a very brief answer, please. If issues arise that would mean that the audit committee or the internal audit team or whoever would wish to make the board aware of matters serious or otherwise, is that happening now? Do you get sight of internal audit recommendations and is there evidence that they are acted upon? Yes. We have that assurance. Thank you. Thank you, Mr Coffey. Bill Bowman. I am coming back to the copper governance report that you have. You talk about, in the governance system, the enablers of school, experience and diversity. Do you now have the audit committee that you want and do they have the right schools, experience and diversity, and what are they? We do have an audit committee that has the right range of skills as far as the business of NHS Tayside goes. What we lack in membership in the audit committee at the moment is the financial experience that is limited on it because the resignations that we had two of the members resigned were experienced financial professionals. We are recruiting and that is the specification within the recruitment is for board members who would have that financial experience. We are not waiting to get that because, obviously, the board and the audit committee need to be assured about the effectiveness of that audit. We have, as advisers, co-opted to the Audit and Risk Committee to experienced audit chairs who are both chartered accountants and experienced finance directors in the public sector. We have the Audit Chair from Greater Glasgow and Clyde and the Audit Chair from the Golden Jubilee acting as advisers in attending the audit committee meetings and also reviewing the papers. We have committed two days a month to support Tayside's audit function because we recognised that, with the resignations, we had lost that particular experience. If I can just interject a little bit, Bill Bowman's time is running on, so if we could keep answers as concise as possible, that would be helpful. You say that you are recruiting. Are you having any difficulty recruiting? The recruitment process hasn't got to the point where the adverts have gone out, so I don't know whether we'll get a great response to it or a limited response to it. You don't think that the circumstances of the history, as you mentioned, in the recruiting consultants, will perhaps put people off? It might do. Do you have an action plan for that as well, as you said, for the consultants? We have, in our recruitment, specified the skills that we want. The recruitment is not something that the board is responsible for. The recruitment for board members is by the public appointments group in Scotland, so we don't really have the, I suppose, control over the process. It's a process that applies to all public bodies and the manner of the process. One of the things is around the attractiveness of the board to come and want to be a non-executive, and certainly the message that we're trying to get out that this is a board that is on the road to recovery. Over the last nine months, we've tackled some pretty fundamental issues in the running of the board, the governance of the board, the management of the board, the run rate on the overspend is now coming down, and we're getting that into a better place. I'd like to report to the committee that we have repaid £3.6 million through to endowments. Some of those long-standing issues that we've actually got to the bottom of, there are good prospects ahead of this board, and I think that makes it an attractive place to want to come and serve as a non-executive. Finally, on one of Willie Coffey's points, if we have financial succondies on or temporary appointments, it would be helpful to see some of their comments coming through in the board papers, which we don't seem to be seeing just yet. John Brown, chair of the board. Yes. Will you take that away then? Yes, I will take that away. The minutes reflect what happened at the meeting. Okay, thank you very much. Colin Beattie. Just to continue on the governance side, how many vacancies do you have on the board at the moment? The board has 20 members, we have 20 members, but in the discussions that I had with Cabinet Secretary when I was asked to commentate on HSTC, one of the issues that I wanted to address was the question of capacity, because in addition to having responsibility on the board and the board sub-committees, there are three integration joint boards on the Tayside that the health board provides members to. Cabinet Secretary agreed to increase the size of the board by another two members, and it is those two additional posts that we are currently recruiting. The comments that we made already about the question of financial experience on the board and you are trying to address that. However, there were wider issues on the diversity of skills on the board. Are you satisfied that the members now have a sufficient mix of skills to be able to carry out their functions adequately? I do, yes. The recent recruits, the three new recruits that have come on to the board to December 1, started in January. One of them has a very detailed background in the NHS. Another one of them has a lot of experience in transformational change and managing organisations through change. The third new member has a long track record and experience in leadership through change. That adds to the experience that we have currently got on the board, which I think is a good mix of people from the NHS, from other parts of the public sector, from the private sector and from different aspects of organisations. Given that you have now got 20 board members and there are going to be 22 probably, having the right structures in place is very important. However, how do you ensure that the board is functioning in an efficient way? Is there going to be an on-going form of assessment or appraisal of board members? How are you going to do that? Within NHS Scotland, we have always done a self-assessment around the boards. We are going to continue with that self-assessment. We have revised the self-assessment model, and there is a new self-assessment process coming into play next month across NHS Scotland and Tayside. There will obviously be one of the boards involved in that, but we are also introducing an external assessment of boards to ensure that the self-assessment picks up on all the issues. We have developed a very clear picture or blueprint of what good governance should look like. There is a lot of clarity now around what the board's functions are, clarity around the resources that the board needs and clarity around the flows of information, what the audit requirement is and the admin requirement. That blueprint is being rolled out at the moment. I co-chair the NHS Scotland steering group for corporate governance with Christine McLaughlin, the Scottish Government finance director. You presumably have an induction process for new members. Are you satisfied that that induction process is sufficiently robust and that members are fully understanding of what their responsibilities are so that the self-appraisals and external appraisals can be useful? Yes. The induction process is in two levels. One is that there is a general induction that everyone receives, which is on the basis of who we are, what we do and what is expected of us. There is a customised induction for individuals, depending on what their background is. Each of them has an induction programme that runs. We also have four development sessions each year where we bring to the board any new areas in the legislation and any issues that we feel that the board needs to be updated on. There is training. All board members receive the on-board training that all public sector board members receive in Scotland. In addition to that, they also provide the Audit Committee members with specific training on their responsibilities that builds on what is on the on-board training. They all go through that process. Mr Brown, would you accept that, given the very considerable difficulties that have been faced by NHS Tayside over the recent months and some of the quite extraordinary revelations that have appeared this morning, the public might find it very difficult to have confidence that the decision-making process within NHS Tayside about clinical matters—I represent the area for Mid Scotland and Fife, and therefore a lot of my constituents are NHS Tayside patients—will feel uncomfortable about the decision-making process for their own treatments. Are you making any changes whatsoever to improve the transparency for patients about who makes decisions about what services are delivered in local communities? The change programme that is looking at what services we deliver, how we deliver them and where we deliver them is clinically led. It is the clinicians who understand the patient's needs and the services that they deliver that are working to develop the first-cut proposals, the first-cut options. Those proposals and options will then go through the engagement process, where we are developing a process of engaging with the local communities to give a voice to the service users and the patients and what services they want, what services they would expect, where they would expect them. We have started that process by talking to a number of events with some of the groups that represent the patients. We have taken them around Tayside and had public events on that. As the work of the clinical alliance, which is the group of clinicians that are leading the design of it, progresses, we will ratchet that up and do even more of that. The board at a development session on 31 January and 1 February reviewing the progress to date with the redesign work and the work on developing the capability capacity to deliver the new design in one of the clear sessions. The board is asking to get the updates on what the engagement strategy is and the plan is. That engagement will also include engagement with the elected representatives. As you know, we meet around every six weeks with MSPs and MPs. I understand from your perspective that the decisions and the investigations that you are taking at local level might be very clear to yourselves—personally, I would maybe doubt that—but the patients and the people who come to our surgeries are very concerned across NHS Tayside at the moment that the reasons behind the decisions that are being made, particularly when some services are either being transferred somewhere or they are being cut, do not understand the reasoning behind that. What I am interested in as somebody who represents those people is how that can be made clear to those people who are using NHS Tayside. I think that the process of engagement with the public is the process of making sure that we are transparent about information and the challenges that we face. The information that we communicate to the public, our openness and transparency of our board and our committee system is really important. However, I think that the work of transforming Tayside and the public events that we have had—I know that you have led one particular public event that I spoke at—is very helpful to have an engagement with the population about the choices that NHS Tayside faces. In the order to general, it has made the point about an expensive service model. There are a series of strategic choices that the board and the Government will need to make about the future of that. I think that we have given strong commitments about the future of Strachathro, about the future of Perthrond Firmary and about the future of Ninewells. That transforming Tayside process with the integrated clinical strategy and with public involvement and about what we do where and the potential capital investment that will come in on the back of that is really important. To answer your question about the public, I think that the public engagement and involvement is absolutely essential. That is what we have been seeking to do. After your time overseeing NHS Tayside, Mr Wright, are you comfortable with the IGB structure in NHS Tayside, given that there are concerns that the transparency of decision-making between social care and healthcare is not clear to members of the public about how that IGB structure works? Are you comfortable having seen it in operation for your time? We need to make improvements in how the IGBs are working with partners. I think that one of the things that I have set about doing—I know that the chairman has set about doing—is to build the strategic relationships between the board and the three local authorities. During my time in Tayside, I put considerable time and effort in working with the local authority chief executives and the two local authority chief executives and the health board chief executive with the integration board chief officer working together. Towards the end of my tenure in Tayside, the chairman and I hosted an event that brought together conveners from the council, luckily elected representatives, IGB representatives and health board representatives to come together to say, how are we going to work together? From a Government perspective, there is a commitment by the Cabinet Secretary to increase the pace of integration. That is very much dependent on the relationships and the joint working at the top of those organisations. It is not necessarily the structure of the IGBs, but it is how IGBs work with the health board, the local authorities and local communities and voluntary bodies. That picture varies around the country from what I have been able to see. There are opportunities for improvement here. I must say in my time in Tayside that I was warmly welcomed by the local authority chief executives and visits to local authorities. I think that local authorities have been asking for the much improved strategic relationship. To finish convening, it is a job for the board to ensure that we have strategic relationships in place and strong partnership working. The signing of the new agreement with Dundee University has been good and important. I would also like to pay tribute to the staff side in NHS Tayside and the leadership that they have given in all the changes that we have gone through. My conclusion at the end of my nine months in Tayside is that we have done a lot to address some of the fundamental underlying systemic challenges that are facing the board and putting in place and trying to get some of those things right. I think that the board is on the road to recovery. Thank you very much indeed. Witnesses will also be aware that, included in the auditor general's report, the issue about the charity fund transfer. The committee has not pursued questioning on that today, because you will be aware that Oscar is conducting his statutory report into this. I think that, all those months later, that came to light in April last year and it is now January in the following year, and we still do not have that report. I am hoping to get it very soon, but we will review that report and decide how we scrutinise that. I thank witnesses very much indeed for your evidence this morning. I do not close the meeting. We are going to suspend for a couple of minutes to allow a change over of witnesses. From our second panel of witnesses to the meeting this morning, Paul Gray, director general health and social care, Scottish Government and chief executive of NHS Scotland and Shirley Rogers, director of health workforce leadership and service transformation of the Scottish Government. I would like to pick up on a number of points that we have just heard from NHS Tayside. I do not know if you both managed to watch the evidence that we have just heard, but obviously we spent quite a while this morning scrutinising the enhanced payment to the former chief executive. I do not know if you had a chance, Paul Gray, to watch that evidence so that you can give us your thoughts on that. No, I did not, convener, because we were waiting outside rather than risk being delayed for here, so we came down early. No, I have not heard the detail of the evidence, so if there are points that the committee wishes to raise, I will be happy to respond to that. Okay, so perhaps based on the Auditor General's report and what we have learned, we know that this committee has been very clear over many years, as you know, about golden handshakes and enhanced severance payments in the public sector, and said on the record many times when we were scrutinising the situation at NHS Tayside that we did not expect and did not want for this to happen again, but we have seen a contractual variation from three months pay-in-law of notice to six months. Do you think that that was the right decision for the board to take? I think that the board acted on the basis of the advice that it had, and I think that it is probably right of me, convener, to put on the record that I think that the payment that has eventually been made, the sum of money, is reasonable. How it was arrived at, the board has rightly, the panel has rightly scrutinised, but the sum of money that was paid out minus, let me just be clear, the pension enhancement, which was wrong, and I am not going to try to use other words, which has now been recovered, had such a payment come forward to us at that level, based on the advice and the risks, that sum of money was reasonable. There seems from the evidence this morning, Mr Gray. I am not sure that the advice that was coming from the central legal office was perhaps as strong or as clear as a health board might expect. Do you have confidence in the advice that your central legal office is providing to boards? I do. I think that I would be very reluctant to base any opinion about the central legal office on one issue. Also, the advice of the central legal office is to taiside and not to the Scottish Government, and the committee will understand the basis on which advice is given to a client, and that client was NHS Taiside. Our task in this is to satisfy ourselves that there has been legal advice and that the proposals that are put to us are consistent with the legal advice that was provided. I think that it is interesting that you describe the relationship between NHS Taiside and the central legal office as a lawyer and a client. My understanding is that the central legal office is a function of Government and therefore has a responsibility not just to its client but to the public purse and the efficient spend of taxpayers' money. Should that consideration not always be in the mind of advice from the central legal office? If it is not, you might just advise boards that might be as well to get private lawyers. I believe that advice was consistent with the delivery of value for money to the public purse. The advice, as it was presented to us in the business case, led Taiside to conclude that the risks of not settling—in other words, going down some other route—would be likely to incur higher costs. That was the point that I was trying to make at the beginning about the sum of money being reasonable. I think that there were other risks that the central legal office in Taiside would have wanted to take into account the risk of not being able to employ a substantive chief executive, for example, if the process was long and drawn out. I would expect the central legal office to factor in value for money for the public purse. Indeed, that is what Ms Rodgers and others are expected to do and did do in agreeing to sign off the settlement at the level—as I have said—minus now the pension payment. I will also say to the committee in the interests of transparency that I did not know that, when a settlement is made, a pension enhancement should or could not also be made, so I did not know that either. That was new information to me that came out through the audit. I have said to Audit Scotland and I shall again say it for the record here. Despite the difficulties of that, I am grateful to Audit Scotland for unearthing some of those points so that we can put them right so that we can ensure that the public purse is not disadvantaged. I will stick on that point. I understand the point that you are making, Mr Gray, about the board's acts on the advice that it has. On that basis, you consider it reasonable. I have yet a slight disadvantage because I was in the session this morning, and I appreciate that you have not seen that. If I might paraphrase some of the evidence that we heard, we explored the business case that was ultimately signed off on, and we heard from the central legal office that it would appear that there was no real in-depth scrutiny of the potential claims that could have been raised by the department chief executive. It appears that there may have been insertion of standard figures on the possibility of success and the possibility of bringing those claims in the first place, which I understand is something that the CLO might use as a process anyway. Perhaps there was less than robust advice on the pension's point, just to de-isolate two or three. Given that the board and you and Dr Ingram go with the advice that they have received, are you concerned about the response from the CLO this morning that I have just outlined to you? What will you do as a result of that? The first thing that I will do is read the transcript, because I shall want to look at that. If you are indicating to me that this committee has concerns, I will take that very seriously, and I will read the transcript. When I have done that, I will consider what to do next. It is a little bit concerning that we saw the agenda for the committee today. We took evidence on this at length from 9 o'clock to 9.45, and it is broadcast, but we are not getting sufficient answers from you when that information was available to you to watch or to come into the committee. I apologise for that, convener. That was my judgment. As I say, we waited outside. We were here early and thought that we would be taking at 10 o'clock. We therefore waited in the waiting area from quarter to 10. I can only apologise. That was my judgment. You know that you are welcome to join us in the public gallery at any point. Liam Kerr has just taken it up a stage. It seems that perhaps the business case may have been less than ideal when it was signed off, and that would suggest perhaps a failure at the CLO, perhaps a failure at the HR level. However, what support does the Scottish Government give in this process? The Scottish Government is inherently bound up with what goes on in one of those terminations, one of those settlements. Where were you? Where was Shirley Rogers? I will bring with me Rogers in a moment. We are required to scrutinise the business case to satisfy ourselves that the employer in this case, NHS Tayside, has taken legal advice and that the business case is based on the advice that they have taken. We did satisfy ourselves about that. We are required to satisfy ourselves about value for money and about reasonableness, as I have said to the convener. I should say to the committee that Ms Rogers and I have discussed this at some length, as you would expect. The fact of a board being at stage 5 on the ladder of escalation is very rare indeed. It happened in relation to Argyll and Clyde when that board was dissolved some considerable number of years ago. It happened in relation to Western Isles again some considerable number of years ago, and this is the first time in my tenure as chief executive that it has happened. I am saying that because Ms Rogers and I have concluded that, where such an eventuality to happen again, we would take or I would advise my successes to take more direct control of any settlement arrangement so that, in addition to the assurances that the board sought and obtained and the material that it provided us in the business case, given the circumstances, a unique complex subject to public scrutiny and quite testing, my reflection is that, if I am answering you very straightforwardly, we would do more next time. Does that mean that you think that you should have done more in this case than the answer to that is inevitably yes? We did all that we believed that we should do, but we have learned from this and we will do it differently in the future. Shirley-Rodges, your name was taken there, so do you want to respond to that? I would support the comments that Mr Gray has made. In terms of the Scottish Government role, we provide a model contract that we expect employers to use. Clearly, that model contract has allowed for a degree of dubiety in respect of the notice period, and we are busy at the moment reviewing that model contract to make it less arbitrary for boards to decide whether or not which elements of it they want to select. You will be aware already from the evidence that has been produced that the model contract has that gives the board leeway to determine whether it wants to go between three and six months notice. Perhaps that leeway is a mistake, perhaps we should just direct how much notice. We provide guidance around how a settlement is to be processed. If I was looking at it from a systems perspective, we give guidance to boards about the kind of contract that we would expect them to have in place. We do the kind of scrutiny that Mr Gray has outlined, both in terms of the business case and the assurance that legal advice has been taken, and then we provide guidance around settlements. In process terms, there is a considerable amount of hoops, if you like. You take it as read that legal advice will be sufficiently robust. Perhaps, if I am hearing you right, this process may raise questions about that assumption. Is that a fair conclusion to draw? You have raised questions about them, Mr Kerr, and I am not assuming that I am taking it to that. Those are concerns of the committee. Therefore, I am going to follow them up. Paul, you have learned lessons from this. I think that one of the messages coming out of this morning's evidence is that there are a number of systemic issues that need to be addressed. This is now water under the bridge, and there is nothing that we can do to change what happened at Tayside. However, as you rightly say, we can learn the lessons. For example, one of the lessons, I think, is the apparently different treatment between senior managers and people further down the rung. I have never heard of anyone further down the rung having their contract retrospectively changed, for example. That is one lesson. Another lesson is in relation to the CLO, some of the stuff that it said, on sex and discrimination allegations. Another one was in terms of the advice and support provided to non-executive chairs, where, in this case, Mr Brown was not advised of a 2006 circular in relation to the contract and so on. Those were only three of the things, but it seems to me that there is a need for a fundamental review of the systemic lessons that need to be learned from this. You have mentioned one of them, which is to become more involved in the process and take more control, but there are many other systemic lessons that need to be learned. Will you carry out or commission a review of the systemic lessons that need to be learned in this case? The answer, of course, is yes, Mr Neil. When this committee looks at something and raises concerns, I can say very safely that whatever faults I may have, not paying attention to parliamentary committees, is not one of them. Mr Kerr has raised concerns, the convener has raised concerns, you have raised concerns. I accept the legitimacy of those concerns and I think that it would be only right for us to follow them up properly. If time permits and I will be guided by the convener, there is something that we can say perhaps to deal with one of the concerns about apparently different treatment of people at different levels in terms of things that we may do, but convener, I am guided by you as to time available. If you can try and keep it brief, Mr Gray, that would be good. Mr Rogers, can we give two or three examples and no more than that? Simply to make the point that as part of our overall processes and policies that apply to the whole of the NHS when there is consideration of the termination of employment on the grounds of capability or anything else, there is always consideration given to whether or not there are alternative roles that might be fit. That is not something that applies simply to certain senior people that apply across the piece. It most regularly happens on the grounds of capability and particularly if there is a health dynamic to that, where an individual is no longer able to fulfil a particular role, but rather than lose those skills in their entirety, we would look to see if there is an alternative role that can be done. I would not wish the committee to think that, in the board considering alternatives, they were doing anything exceptional in that space. That is part of the process. I think that they came to the right conclusion in these matters, that there was not a suitable alternative that would be appropriate in these particular circumstances. However, I would not want Mr Neil or the committee to take the view that that was something that was exceptional only to this individual. In that particular case, I am absolutely right that it can be done. The question is, is anybody monitoring if it is done to ensure that there is consistency? I think that that is the issue. It might be that it is not just when a level 5 arises that more monitoring of those things is required on a regular basis by the Scottish Government without necessarily interfering, but just to make sure that there is fair treatment for all grades of workers in the national health service, retrospectively changing the contract. I have never heard of that before in any public organisation. I do not want to get back into that. We have been through that many times, but I think that there is an issue there about proper guidance to all public organisations. Similarly, there is support for non-executive directors, particularly chairs of boards and remuneration committees. When those people are surrounded by professional people and nobody advised in this case about the 2006 directorate, Tayside has now, according to the evidence that we heard this morning, set up a board secretary act. That was probably the main reason why that information was not provided. However, as every board got a board secretary act, I would assume that every board has that, but clearly in Tayside's case it did not. It is those kind of lessons that need to be learned. Those are fairly quick, sharp lessons that can be learned and prevent this happening again. I will respond briefly and at more length if the committee wishes. My brief response is that we will review all the concerns raised by this committee once it reports and we will respond to them. Colin Beattie The previous witnesses advised that the current authorised size of the board is 20, but that you have authorised an additional two members. What was the rationale for that? One of the things that we asked John Brown, the current chair to do when he went in, was to ensure that the board had the right skill mix and the right people on it. One of his responses to that was to say that he felt that an additional two board members with particular skills would be of assistance. Given that we had asked him to do it and given that he had evidence to support what he said, we agreed to his proposals. I should say we. It is ultimately a matter for ministers, but that was a reasonable request. If you consider that the board of British Petroleum consists of 14 people, the board of British Telecom consists of 12 people and the board of NHS Tayside consists of 22, does it seem a wee bit disproportionate? What are they all doing? For example, some of the members of all the territorial health boards will have duties in relation to the integration joint boards, so they will have more than one function. There are sub-committees, as you know, Mr Beattie, I am certain. Finance and performance, they may be called slightly different names and different boards. There are a number of things that board members are required to do. I would also observe, without commenting either way, that the board of a public body and the board of a PLC are rather different in style and function. I am not commenting as to what I think is right and wrong. That is not my point. It seems to me that we have heard that we are struggling a little bit to get members of boards or the right mix of members of boards and so forth. If you multiply this across Scotland, it is an awful lot of board members throughout all the different boards at a huge expense. Are we getting value for money? Are we getting the right people with the right skills and the right numbers? I mean, 22 is a lot of people for a board for one NHS board. That is a point that I would be happy to reflect on with ministers, but we are certainly making significant efforts. I may have given evidence to the committee on that before, so I do not want to repeat it at too much length. We are certainly making significant efforts to improve the way that we recruit, first of all, board chairs but also board members to make sure that we do not simply, as has perhaps been the case in the distant past, use generic job descriptions and generic specifications so that we are very clear that when we want someone to come in with finance skills or we want someone to come in with workforce-type skills, that is what we are recruiting for. We are being a good deal more tailored in the specifications that we put out. I think that the Public Appointments Commissioner for Ethical Standards and Public Life in Scotland has commented on whether the type of role and the remuneration for the role attracts a sufficiently wide cohort of people to it. I can say more about that, but I do not want to go too far off Tayside at this stage. Just continuing on Tayside, the previous panel I queried about on-going assessment and appraisal. We were assured that that process was in place. Is that so across the board now, or is it something particular to NHS Tayside that has been brought in? No, we are very clear that we expect all board chairs to assess and appraise their board members regularly, but there is a process for that. When I assess and appraise the board chairs whom I see, I make sure that they are doing that, so we expect it to happen everywhere. NHS Tayside said that, apart from self-assessment, they were going to be having external assessment. How would that work in your opinion in terms of who would do it and so forth? External assessment of board performance? Yes. I do not know the precise detail of what Mr Brown is proposing, but I know that there are a number of organisations who specialise in governance, who have expertise in governance and who are able to provide that kind of support. Bill Bowman, I am going back to the issue of the former chief executive and the departure and the negotiation of that. Given that it is a propensity to have public interest and concern about it, why do you think that nobody bothered to ask the Audit Scotland what their view was? In terms of before the settlement was made, I do not know that that is something that we would routinely do. That is not routine, of course. No, that is not routine, I agree, Mr Bowman. I will not speak for the auditor general, who is here anyway and can speak for herself, but it is my understanding that Audit Scotland would generally wish to review something once it has happened, rather than prospectively. However, I would be more than willing to discuss with Audit Scotland if, in these exceptional circumstances, there was a different approach that we could take. As I have already said, I am very willing to learn lessons from that. I asked in the previous session about the skills and experience of the audit committee, and we were told that they have two temporary members who bring financial skills to the committee in the meantime, but they are looking to recruit. It referred to the Government, the central process of that, and it was a little bit of, I do not know exactly where we are on this, but it is being dealt with by the central agency. You have told us that there is a more directed and more specific approach to finding people. Can you tell us a little bit more about how that would work in the Tayside situation? I was concerned that people might be put off a little bit by the history of what has happened at Tayside, the various scandals, and may not feel inclined to join the board. I am conscious of the convener's signals. There is probably quite a long answer to that, but would it be better if I wrote to you? I am happy to give you a brief one now. If you can give us a brief one and then follow up in writing, it might be helpful. The shortest answer that I can give you is that, while the appointments process to board chair and member non-executive roles is overseen properly by the Commissioner for Ethical Standards and Public Life in Scotland, one does not go and tap people on the shoulder and say, would you like to do this and that and everything will be fine. Nevertheless, the Commissioner expects us to draw those roles to the attention of people who might be suitable. They then have to go through the full process, which is overseen by the Commissioner, and to ensure that any individual who might be suitable has the opportunity to explore with the chair or with other board members as appropriate what the role might involve. Colin Brown, who is the head of my office, will also provide guidance to people about how they might apply and how to go about it. We will not write their application for them, and that is up to them, but we do all that we can to facilitate that. I have also, in my time here, cut back the number of essential criteria to those that are actually essential. If you have more on that, Mr Gray, that would be helpful to receive it in writing. Good morning, Mr Rogers and Mr Gray. I asked a series of questions around performance standards in the earlier session. I am not going to repeat them, but I want to focus on a single question on mental health services. Clearly, the performance is simply still not good enough in Tayside. The most recent figures around CAMHS being 39 per cent of people seen in time, and that was November 18 figures. At a previous session, Mr Gray committed to looking at the numbers of people who had lost their lives while waiting for that referral to treatment. Has that work been done and are you able to share those figures with the committee? Mr Sarwar, I apologise. I thought that I had written to you on that, and if I haven't, I apologise and I will. I think that that is the simplest answer that I can give you. I am sorry that I had no communication on that, Mr Gray. If you could write to us on that, that would be very helpful. I am just seeking a bit of clarification on that letter. I will do that, but I am going to bring in Willie Coffey first. Mr Gray, I had asked about the internal audit process function, the audit committee, internal audit programme and so on in the previous session. I would like to ask you similar questions. Is the Scottish Government content that the internal audit function, audit committee, skills and membership, scope of audit, is sufficient to carry out its duties and provide the assurance to the NHS side board now? Just so that I am clear, Mr Coffey, there are some, if you like, centrally provided audit functions, and then there is the committee itself that would be the non-executive member. Are you asking about both or either? Both are both. Unfortunately, as I think the committee knows, Ms McLaughlin is not able to be here today because she is unwell. I know that she is looking at the centrally provided functions with some care, and I would be happy to write to the committee about that. I think that what Mr Brown has done in terms of the temporary membership of his audit committee is well judged and sensible because he has brought in people who have, you might say, directly attributable experience in this area. As to the committee, I think that the steps that he has taken so far are good and commendable. As to the centralised audit functions, I know that that is being looked at and I am happy to provide further detail to the committee. I was having a look at the NHS Tayside Minutes just as the meeting was taking place there, and it said quite clearly that the previous audit function of the committee, the audit committee, was purely focused on risk management issues. Of course, it is a much broader scope for an organisation like the NHS Tayside to only look at the risk management process. It is perhaps a wee bit narrow in scope when you might consider that they might want to look at financial matters or materials, procurement, performance, all of that. Is that a common picture that you will see in the health boards where it just looks like risk management or does the internal audit function look at a broader scope? The first thing is that, given that Mr Brown is also chair of Greater Glasgow and Clyde, you can take it that he is bringing his experience from other areas into that. Mr Brown and his colleague Susan Walsh, who was non-executive director in Healthcare Improvement Scotland, did a governance review in Highland, which produced a blueprint, and the cabinet secretary has been clear that she expressed that governance blueprint to be implemented across all health boards by the start of the new financial year. There is some progress on that. Last query convener, Mr Brown said in previous evidence that past audit recommendations were not acted upon. We have heard that story, convener, and other areas in the public sector. How in earth do we improve that? It is a common message here that audit team, internal audit function or committee or otherwise, making recommendations to the board and not being acted upon. How can we assure the public that that will no longer be the case? First of all, there has to be a clear expectation on boards that recommendations that are made to them, whether through the audit committee or any other system or process—for example, by Healthcare Improvement Scotland to pick one other example—are followed up and acted on. Part of what the committee is saying to me today prompts me to think about how we might, in future, pursue annual reviews with the health boards in a way that would give both the cabinet secretary and the accountable officer assurance that that follow-up is being pursued. I think that you did write to us on mental health. I understand that it was received by the committee last Friday. Members have not had sight of that letter yet, so that is due to the confusion. Mr Sarwar is particularly interested in pursuing a line of questioning on that. Clearly, mental health is a really important issue. I will allow him to do so in terms of what he has just seen, but not all members have had a chance to review that letter. It may be that when we come back to look at the scrutiny of Oscar, which we cannot do yet because we have not received Oscar's report, we will reserve some time for that as well, because it is a very important issue. Members should all be appraised of the information that you have provided. I will let Anna Sarwar pursue what he wants to for the time being. Just to clarify from what I have just briefly read, that looks like an audit of the rejected referrals and there are no stats given in terms of the number of people that lost their lives even in that rejected referral category. It does not actually answer the question around the number of people who have lost their lives while waiting for treatment, either through a rejected referral or through the length of time that they are waiting for, so it does not really answer the question, so if you could look into that part specifically and come back, that would be greatly appreciated. Do members have any further questions for Paul Gray and Shirley Rogers? Oh yes, I do. Mr Coffey raised in his questioning with our first panel of witnesses this morning issue about length of board papers. That is something that has concerned the committee, particularly my staff, who have to wade through those pages and pages. I think that it concerns us all—240 pages of papers to go to NHS Tayside in December. I do not think that that is unusual, Paul Gray, for boards, but I think that you gave us an assurance last time that boards would do something about this, make them more concise, more transparent. What has been done on that? I can give the committee an assurance that, in fact, the cabinet secretary raised that very point with the board chairs at the recent meeting and made it very clear that her expectation, too, was that board papers would be clear, concise and accessible. That has been escalated and raised with chairs direct. I was also looking at the minutes. There were 38 people at that meeting, which is roughly the same number of folks in this room. It is a ridiculous number of people to be attending a board meeting, surely. There were nine doctors, three professors, three councillors and a whole myriad of people, but who was not there? Was the chief internal order? Come on. Let's get it sorted, get it right. I think that we've had assurance from John Brown and Malcolm Wright this morning about changes to governance. However, all the Auditor General's report on health has come to this committee, and it's something in terms of leadership and governance that we will be keeping a close eye on. I thank you both very much indeed for your evidence this morning. I now close the public session of this meeting.