OPPOSING EVIDENCE
(Published in Hospital Doctor, July 14, 2005)
As the GMC sits in judgment on Professor Roy Meadow, the paediatrician accused of giving misleading evidence in the Sally Clark case, an examination of last year's GMC hearing of fellow professor David Southall reveals a series of flaws and conflicts of interest that casts doubt on the GMC's disciplinary procedures. Jonathan Gornall reports
ON JUNE 15 last year, Prof David Southall, one of the country's leading paediatricians and child protection experts, was found guilty by the GMC of having abused his professional position.
In April 2000, while Sally Clark still languished in jail wrongly convicted of murdering two of her children, Prof Southall had watched a television programme and suspected, on the basis of what he had heard, that her husband Stephen Clark may have killed the children and, most crucially, that the couple's surviving child - Child A - might not have been safe in the custody of its father.
The GMC's professional conduct committee decided the 56-year-old paediatrician had acted in a way that was 'irresponsible, inappropriate and misleading' when he made the allegation and on 7 August 2004 the council announced that he would be banned from carrying out child protection work for three years.
The bare story as reported by the press was that Prof Southall had seen Mr Clark being interviewed in the April 2000 edition of Dispatches and, 'based on nothing except what you had seen in a television programme and what you had heard from mates on the telephone', in the words of the GMC's counsel, had jumped to the conclusion that he had attempted to smother one of his own babies.
Prof Southall had, as was disclosed in Hospital Doctor (23 June, 2005) done no such thing. He made clear at the GMC hearing that he had acted only because police had failed to reassure him that Mr Clark's alibi had been checked. If they had, he told the hearing, 'I would have been completely taken of the view that I had got it wrong and would have proceeded no further.' An officer giving evidence at the GMC again failed to confirm the alibi had been checked.
This was just the opening flaw in the case against Prof Southall. Several others flowed from a willingness by the GMC to rely on a single expert witness - Prof Tim David, professor of child health and paediatrics at the University of Manchester.
Prof David had become involved with the Clark case in March 1999, when he was instructed by all four parties to the care proceedings initiated by Cheshire County Council in respect of the Clarks' surviving child, Child A, to prepare a report reviewing all the medical and related evidence in relation to the couple's two dead children. The parties to the proceedings were:
The local authority as the applicant;
The child's guardian;
The two parents, each of whom had separate legal representation.
Thanks to the contents of the report, which he presented in October 1999, Prof David was called by Mrs Clark's defence team 'at a very late stage' to give evidence in her criminal trial.
Mrs Clark was convicted of the murders of her sons, Christopher and Harry, in November 1999. Child A was returned to Mr Clark within weeks.
After Prof Southall raised his concerns about Mr Clark in April 2000, Prof David was again instructed by the four parties to the Family Court proceedings, this time to assess the threat to Child A.
In the light of Prof Southall's concerns, the question was should Child A remain with its father?
Clearly, as Child A did remain with Mr Clark, the recommendation in Prof David's report of September 18, 2000, accepted by the court, was 'yes'.
Then, in what Prof Southall's counsel, Kieran Coonan, described at the 2004 GMC hearing as 'unusual and somewhat unique . . . circumstances', Prof David had been 'converted by the GMC, following Mr Clark's complaint, into an expert in these proceedings'.
Nobody at the GMC hearing appeared struck by this apparent conflict of interest: how could it have been right for the GMC to put Prof David in such a situation - to ask the very man whose findings had returned Child A to its father to pass judgement on the view of another doctor who had suggested that so doing may have placed the child in grave danger?
Much was made by Prof David and the GMC panel of Prof Southall's failure to have studied any of the medical papers relating to the case - indeed, this point formed one of the charges against him - but, in common with much of the case against Prof Southall, this charge rested on a Kafkaesque logic.
He could not possibly have seen the papers. He had wanted to, but he had been denied access to them.
At a strategy meeting on 28 June 2000, attended by all parties, including two police officers, Prof David, Patrick Wheeler (the child's solicitor), Guy Mitchell (the child's guardian), a social worker and two senior representatives of Cheshire County Council, it had been agreed to apply to the Family Court to release the relevant papers to Prof Southall.
But the application was never made, as the GMC panel heard. The Family Court was asked for leave for Prof David and Prof Southall to meet to discuss the latter's concerns and this was granted in an order from the judge's clerk on August 10.
The terms of the order were clear. The meeting was to be 'chaired by the child's solicitor, the points of concern to form the agenda and the minutes of the meeting to be filed and served'.
Mr Wheeler duly wrote to Prof Southall, inviting him to the meeting and asking him to set out his points of concern for the purpose of constructing an agenda.
But shortly after this, Mr Wheeler revealed under cross-examination on day two of the hearing: '[Prof David had] contacted me, and thereafter all the other representatives on behalf of the other parties, to seek to slightly alter the terms of the order' and had written 'to see if I can persuade you to agree to my interviewing Prof Southall on my own rather than having Patrick Wheeler as a chaperone'.
Prof David pointed out that he had already interviewed 'numerous medical and nursing colleagues in this case . . . without the need for anyone to sit in and take independent notes. I believe that having a third party present could actually hinder the process, which would be in no one's interests'.
Mr Wheeler and the others were persuaded. 'As I recall it,' Mr Wheeler told the GMC panel, 'although there was discussion about an application for permission to release the papers to Prof Southall, as a result of . . . Prof David contacting me with a view to having a meeting in my absence it was felt . . . that Prof David could discuss the relevant issues with Prof Southall without necessarily . . . giving access to all the papers in the case. That is why the application was not made.'
Nevertheless, as Mr Wheeler added, if at that meeting '[Prof] David were to reveal information about the case then that would be within the spirit and terms of the order.'
But Prof David evidently had a different view. Two days later he gave evidence that, 'as was quite clear from the rules of engagement for that meeting', he had not been at liberty to divulge anything about the case to Prof Southall.
There were, he said, 'severe constraints on what I was allowed to do. There were a lot of worries about me disclosing information.'
To illustrate the extent of those worries, he added: 'That was the main reason . . . why there was the suggestion that Mr Wheeler should be there, to make sure that I did not say anything.'
No member of the GMC panel appeared to question the contradiction inherent in that remark. If that was the case, why then had Prof David taken the steps he had to ensure that Mr Wheeler would not be present?
Prof David had duly met alone with Prof Southall on September 8, at a meeting neither chaired nor minuted, and revealed no information to him about the case.
Only one member of the five-strong GMC committee appeared struck by the inequity. Caroline Langridge, a member of the Institute of Health Management, put it to Mr Wheeler on day two that 'it seems to me that . . . it could be argued that you placed Prof Southall in a difficult position if you were unwilling to let him see just the relevant papers'.
Mr Wheeler replied: 'This was a very narrow issue that was being debated and discussed and therefore the more appropriate approach was felt [to be] that Prof David would raise any relevant material and issues with regard to the matters raised by Prof Southall rather than have full disclosure of papers.'
Not only was the crucial point pursued no further, but the panel was later happy to accept Prof David's criticism of Prof Southall for having acted without seeing any of the papers.
'The difficulty that Prof Southall had,' Prof David had said on day three, 'was that he was not in any position to consider the causes of the child's nose bleed because he did not have any access to any of the paperwork, any of the records, any of the reports . . . his opinion really was crippled by a lack of any relevant information.'
Prof David also criticised Prof Southall for having acted on the information he had seen in the TV programme, a point that formed another of the charges against the paediatrician, even though there was no dispute about the facts of what Prof Southall had heard and acted on - the nose bleed suffered by Christopher Clark while alone with his father.
'It is common knowledge that the reporting of things in this area in the media . . . is appalling,' Prof David told the panel. And yet, as he made clear, he had been granted leave by the Family Court in 2000 to act as medical adviser to the very television programme about the case that had triggered Southall's concerns.
'I was asked for my assistance and I, first of all, had to point out that the information relating to the case was confidential,' Prof David said. 'It was put to me that this was going to be a responsible piece of reporting made by reasonable people and that I had a duty to assist them.
'What I did was to put that matter to the instructing solicitors and I said to them quite simply, "look, I have been asked to help with the making of this programme, I cannot talk to the media about this case without your permission, what is your advice?" My understanding is that this was discussed with the judge and the judge made an order giving me permission to give information to the makers of the programme about the case.'
No member of the panel questioned why it had appeared appropriate to discuss details of the case with a TV crew while it had been deemed inappropriate to discuss them with a medical colleague with a serious concern about the case.
Another GMC charge against Prof Southall was that 'at the time that you produced your report you . . . had not interviewed either Stephen or Sally Clark'.
In his evidence to the GMC, Prof David had stressed that, as the expert witness appointed to the family court in March 1999 by all four parties in the case of Child A, he had 'interviewed separately and later together Mr and Mrs Clark . . . on five occasions', whereas Prof Southall had spoken to neither of them before making his allegation.
The implication - even though Prof Southall had been acting as neither a treating paediatrician nor an expert witness in a trial - was that he had been negligent in not speaking to the parents.
This was a curious charge to begin with. Prof Southall was not preparing a report for a court. He was merely raising a suspicion that others would investigate.
But the panel appeared unaware that Prof David's views on the merits of interviewing parents in cases of suspected murder - rather than as a part of a normal clinical process of diagnosis - were not undisputed among his peers.
In September 2004, shortly after he had appeared at the GMC, Prof David had published a leading article in The Archives Of Disease In Childhood, stressing the importance of interviewing parents in such cases. The piece attracted five published letters from doctors, two of which partly supported Prof David.
One paediatrician, however, declared he was 'surprised to read Prof David's views without a response from those who have differing opinions, especially as he is intimately involved in Prof Southall's controversial GMC hearing', but the most significant was a letter signed by 12 leading paediatricians, all experienced in child protection and expert witness work, and including Prof David's own boss, Robert Postlethwaite, clinical head of division and consultant paediatrician at Manchester.
Prof David, they wrote, had expressed 'some highly personal opinions which, whilst forcefully argued, are unreferenced and not evidence based'.
They added: 'While it is undeniable that treating paediatricians need to take a good history from parents . . . the situation is different, however, for an expert witness who assesses the case many months after the parents have been confronted with the initial concerns about child abuse.
'The parents are likely to have had opportunities to discuss their case and rehearse their history . . . it is therefore impossible for the paediatrician to know how much weight to attach to the history given by the carer at this point in time.'
They also delivered a rebuke to the GMC, with tacit disapproval of its reliance on Prof David in the Southall case: 'Where complaints are received, for example by an NHS trust or the GMC, it is important the doctor's performance is judged on the basis of accepted and reasonable medical practice, and the opinions of those making these judgements are not influenced by skilfully argued but personal and controversial views such as those expressed by Prof David.'
Hospital Doctor has made repeated efforts to discuss these issues with Prof David but he has proved unobtainable.
Prof Southall's case was raised on June 6 this year by leading silk Sir Louis
Blom-Cooper, who addressed a one-day conference on child abuse and expert witnesses staged by the Royal Society of Medicine.
Sir Louis said: 'The avenue of complaints about the behaviour of professionals is in danger of being abused. Complaints should be more closely scrutinised before professionals have to defend themselves against accusations that do not involve the quality of professional service which they are proffering to the public.'
His concern was that 'cases such as this make it less likely that the appropriate experts will be prepared to give their expertise. That cannot be in the interests of children who are, or may be, the subject of abuse.'
It is a stricture the GMC would do well to ponder as it sits in judgement on Prof Meadow.