GENERAL MEDICAL COUNCIL
PROFESSIONAL CONDUCT COMMITTEE
On:
Thursday, 10 June 2004
Held at:
St James’ Building
79 Oxford Street
Manchester M1 6FQ
Case of:
DAVID SOUTHALL MB BS 1971 Lond
(Day Four)
Committee Members:
Prof D McDevitt (Chairman)
Ms F Bremner
Mr S Gurjar
Ms C Langridge
Rev J Philpott
Mr D Mason (Legal Assessor)
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MR K COONAN QC, of Counsel, instructed by Messrs Hempsons, appeared on behalf of the Doctor, who was present.
MR R TYSON, of Counsel, instructed by Messrs Field Fisher Waterhouse, appeared on behalf of the Council and Mr Stephen Clark.
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(Transcript of the shorthand notes of TranscribeUK
Tel No: 0208 614 5799)
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INDEX
Page
DAVID, Timothy Joseph, Continued
Cross-examined by MR COONAN 1
Re-examined by MR TYSON 29
Questioned by THE COMMITTEE 32
SOUTHALL, David Patrick, Sworn
Examined by MR COONAN 36
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THE CHAIRMAN: Good morning. Mr Coonan, are you ready to start?
MR COONAN: Yes, sir.
TIMOTHY DAVID, Continued
Cross-examined by MR COONAN
Q Professor David, can we start by looking at a very simple matter which was not dealt with in the course of your evidence, but it is contained in the report that you prepared for the Court on 18 September 2000. We can find this at page 54 of C1?
A Can you give me the internal page number?
Q Page 7, paragraph 11. In paragraph 11 you are dealing with the conversation you had with Professor Southall on 8 September. I want to pick up the way you phrased this when you submitted this report to the Court.
“Professor Southall explained to me that his involvement in the Clark case was not as a paediatrician or a doctor. Indeed, when he attended the planning meeting he made a similar indication and told the meeting that he was not allowed to mention the name of his place of work. He told me that his role in the Clark case was purely as a concerned member of the public…”
and so on and so forth. It may be a short point, but it is what you told the Judge in the family proceedings. I am going to suggest to you that that was an inaccurate and misleading description of what Professor Southall told you?
A I am sorry, but that is the question?
Q Yes, that is the suggestion. If I can just couple that suggestion with this: that what Professor Southall was saying to you was that he was not acting, insofar as he was involved in the Clark case, as a doctor or paediatrician employed by the Trust. He was suspended and he was in that sense a member of the public, albeit wearing his hat as a doctor and as a paediatrician. What do you say to that?
A The third report which we are referring to, if we start with paragraph 9 and it goes on to through to the end of page 10, this in effect is my note of the meeting. It does not say that, but that is what it is. The words I have used here reflect my understanding of what was said to me. The proposition that is being put to me is that, if you like, I may have misunderstood Professor Southall’s position. I accept that I may have misunderstood what he said. What I have recorded was my understanding.
Q I do not want to prolong this point. I indicated that it was a short point. The Committee can see for themselves the content of the planning meeting on 28 July and they can see for themselves the memorandum of the meeting on the 25th, which was the precursor. Now is not the time to comment, but it will obvious the capacity in which he was putting himself. I think you have received minutes of 25 July?
A Yes.
Q In the light of that I shall move on. I want to come to matters of greater substance. The first matter can be introduced by turning over a couple of pages to your paragraph 14 on page 9. This is a summary of the data from Professor Southall’s paper?
A This is my internal page?
Q Page 9?
A Right.
Q You gave evidence about this yesterday. As a summary from 14.1 down to, for present purposes, 14.7 I do not have any dispute with you at all. I want to explore with you the rider that you put on it yesterday when you were drawing attention to the fact, and I am now looking at 14.4, that in only three cases was there bleeding from the nose alone and, in 14.5, that in one of those two cases was the bleeding from the nose alone. As a matter of fact, on the data which is drawn down not only in this summary, but also in the table in the paper itself, that is factually correct. I would like to ask you what significance you are inviting the Committee to draw, if any, from that fact?
A From which fact?
Q The fact that there were only three cases in which there was bleeding from the nose alone?
A It is simple. The case at hand was Christopher Clark and Christopher had had a nose bleed. The relevant patients in the study we are referring to were those that had a nose bleed. There were other patients and it is quite clearly identified, who had both bleeding from the nose and from the mouth. They are clearly a different category but they clearly existed. As far as the argument that if you have a baby who has a nose bleed is concerned, that nose bleed, barring certain situations, must be due to intentional suffocation, the key data is the three patients. That is the argument.
Q I want to deal with that on two levels. Firstly, on the occasion when you met on 8 September I have to suggest to you that Professor Southall told you when this point was raised that within the observations which have taken place for the purposes of collecting the data, it was often very difficult to distinguish between bleeding from the nose alone and bleeding from the nose and/or the mouth. First of all, can you remember him saying that?
A I have not got a note of that being said. That does not mean it was not said. I do not have a note of that or a recollection of it. It is possible it was said.
Q I think it is right that you have no note, no contemporaneous note of the conversation that took place between you?
A This is the contemporaneous note. My modus operandi, if I am having a meeting of this sort, is that I write notes in shorthand – not proper shorthand like professional, but my own medical shorthand. I either do it by hand or on a laptop. Immediately after I turn that into a full note. In this case the paragraphs that I referred to in my report of 18 September constitute my note taken from that meeting. Although it is not labelled, these are my notes. I am a fairly careful note taker. I am not perfect and I make mistakes like anybody else, but I did not make a note about the difficulty of distinguishing between blood coming from the nose and blood coming from the mouth. Having said that, I can think of several situations where it could be difficult to distinguish. For example in some of these babies the information that you have about blood coming from the nose or the mouth comes from indirect sources of information like the clothing that the baby was wearing when the baby was found. It may be very difficult to tell whether the blood has come from the nose or the mouth. I accept the proposition, whether or not it was said at that meeting.
Q The important point is really the source or cause of the bleeding, whether it be from the nose or the mouth or both. That must be right, must it not?
A Yes.
Q For the purposes of this study?
A Yes.
Q I also want to suggest to you that Professor Southall mentioned, without going into detail – and I do stress that – that he had other empirical case by case data in effect emanating from category 2 work that he had done, which indicated an association between oral-nasal bleeding and an ALTE where it was either proved or there was a strong likelihood that the ALTE was caused by suffocation, which is in other words material which he had which was not within the study?
A Right. I do not have any recollection of any reference to such material and I have to say if there had been reference to it at that meeting I would have made a note of it. Having said that, Professor Southall has referred in his report in this case to both his research and his clinical experience. I accept that Professor Southall has, in addition to this research study, been involved in other cases and that there may be other sources of information, but I do not have any recollection of that being said at that meeting and I think it is likely I would have written it down.
Q But not impossible that you did not?
A Not impossible, no.
Q And I do stress, lest it be thought that I am inviting you to accept a proposition which you find difficult to accept, that Professor Southall did not go into detail. Thirdly, do you accept that there was at least a passing reference to the fact that there was a much greater body of literature where the association between ALTE and bleeding had been referred to in other published literature?
A No, I do not. Let us go back to my notes. If you go to my paragraph 13, it is clear that we looked at the topic of the data of Professor Meadow and Professor Meadow’s paper has mentioned not in the connection with ALTEs but in connection with unnatural infant deaths and he has published data suggesting that in some of those babies there was blood found either around the nose or the mouth at the time of death and, clearly, it was Professor Meadow’s view that that was significant and that, indeed, it could be a pointer to an unnatural cause and we certainly made reference to that and, as you will see from my paragraph 13, Professor Southall commented on that and felt that he had more expertise than Professor Meadow in this area. So we certainly discussed Meadow. But I do not think we discussed any other data or I would have written that down.
Q I do not want to elevate this to the status of discussion as such, but simply an observation by Professor Southall to the effect that there was other literature and, in particular, there was going to be an article published in Paediatrics shortly by an American author which he had been sent to review which supported what he was saying.
A Actually I think that is perfectly possible that was mentioned, but I do not think there was any discussion of what that data was. I was well aware, I would like to think I was well aware, of the literature in this area, its strengths and its limitations, but I do not recall us discussing any of the other data, whether it was published or unpublished.
Q Professor David, I fully understand that this case does not turn upon what you and he specifically talked about, but I have to cover it because Professor Southall, of course, may refer to what he discussed with you so I have to cover that. What is important is what in fact was the underlying data which Professor Southall relied on and, of course, he will give evidence about that in due course. But I think what it comes to is this. When you draw attention to the fact that there were three cases of nasal bleeding in the nine cases which were described as bleeding from the nose or mouth (and this is paragraph 14.4 on your page 9) you are not drawing attention to that, are you, to weaken the association between suffocation and bleeding?
A I do not think I quite follow the question.
Q True it was that Christopher was bleeding from the nose. I wonder, therefore, why you single out just the three cases where there was bleeding from the nose if not perhaps to demonstrate an arguably tenuous link for the association.
A Okay, I understand. I think what I was doing was to focus on the detail because, of course, the detail is very important, because there is a difference between bleeding from the nose and bleeding from the mouth. The cause may be the same, but it may well not be. So I think it is important to distinguish in a baby who has died or collapsed whether the blood has come from the nose or whether it has come from the mouth or whether it has come from both. There is an important distinction and in this particular baby that was under consideration the bleeding was from the nose. There was no evidence that blood had come from the mouth. So the particularly relevant cases in the study that we are talking about were the three cases where there was a nose bleed in a previous episode where subsequently the mother was found to have suffocated the child. One could argue what about the other cases and I think that is what the question is, why not include the other cases where there was bleeding from the nose and the mouth, and I suppose I am focusing down on the details saying you need to distinguish between the two. I am being, if you like, a splitter, splitting patients up into groups, and your question would imply that you are being a lumper, you are lumping things together. I think they are both perfectly valid approaches. I was mindful of the fact in what I wrote that there were patients where there had been bleeding from the nose and the mouth. The difficulty is how do you interpret that data. The data is difficult enough to interpret as it is, because it is not first hand observations. It is generally reported information. I am not saying one should disregard the data where you have got bleeding from both the nose and the mouth. I am focusing really on the detail and the bottom line is that in this study there were only three babies where there was bleeding from the nose where subsequently the mother attempted to suffocate the child.
Q If I could deal with it in this global way. If taking into account Christopher had a bleed from the nose only, if it were thought that that fact therefore were to make a connection between bleeding and suffocation tenuous, taking into account the Southall data and any other data, that would have been an important consideration to develop at the trial of Sally Clark, would it not?
A I am sorry, I did not follow the thrust.
Q Insofar as Christopher had a bleed just from the nose and insofar as that fact may be relevant, may be relevant, to an argument that therefore the association between bleeding and suffocation is tenuous or weak or unsatisfactory, that would have been something to have drawn attention to or have developed on behalf of Sally Clark at her trial.
A I am sorry, whose duty was it to draw attention to that at the trial?
Q Never mind duty for the moment. If there was an argument to the effect that the data link was tenuous, that would have been something which would have been of importance to develop at her trial and what I am going to suggest is that there was never any suggestion by you at her trial that the link between bleeding and suffocation was tenuous.
A We are now going on my recollection of the evidence that I gave, but most of the evidence that I gave at the trial concerned all the data that existed about the fact that Christopher was suffering from a pre existing serious illness. My recollection is that the topic of nose bleeds really came in, I think I was only asked about it by the prosecution, and I think I was asked to give my opinions in order to build on the opinions that had already been expressed by other experts such as Professor Meadow. The issue before the court, as I understand it, was not how strong is the link between blood coming from the nose and suffocation. There were two issues really. One was had the nose bleed been made up because there were a number of people who thought that the story had been fabricated and part of the work that was done was to demonstrate that it had not been fabricated so far as one can tell.
The real discussion at the trial, certainly with me, was the timing issue and it was put to me, I think, (I do not have a transcript of what I said) that Professor Meadow had argued that the nose bleed following a suffocation attempt could be delayed because the way the argument was being developed was that the nose bleed was significant but it was likely to have been caused by Mrs Clark before she left the hotel room. That was the line of attack and Professor Meadow had said something to the effect that he thought nose bleeds after suffocation were usually immediate but he could think of mechanisms whereby they might be delayed and the question I was asked on all this was really whether I agreed with that or not. The issue really was about timing. I do not have any recollection of there being any discussion about the strength of the link between blood coming from the nose or the mouth and suffocation.
Q Professor David, the question about the timing I fully accept and we may have to come on to that in due course, but the point I am making is a very simple one. The Committee may have derived from your evidence yesterday, I know not, an implication that because you have drawn attention to the fact that there were only three cases specifically noted to have a bleed from the nose and that Christopher as a matter of fact had a bleed from the nose only, therefore the data supporting the proposition or an association between bleeding and suffocation was therefore tenuous. That is all.
A Right.
Q I am sorry to repeat it, but that is the point. I am seeking to investigate with you whether that was an implication that you were seeking to draw or not.
A In my opinion, the data is tenuous and the numbers of cases available to support an association between bleeding from the nose and suffocation is very small and actually that conclusion applies even if you increase the number from three upwards to include all nine and I have listed nine in paragraph 14.4 of my report.
Q Yes, you have.
A So it is still very small numbers of cases and the tenuous nature of the association is the same. But, as I explained, I was sticking to the facts and I was being very careful to identify the three cases where there had been a nose bleed.
Q Again, I want to suggest this to you. Nowhere in the course of your evidence when you gave evidence at the Sally Clark trial did you say that the link between bleeding and suffocation was tenuous.
A I think that is almost certainly true because I was not asked about it.
Q This was a woman on trial for murder, double murder. If it was tenuous you would be the first to say so, would you not?
A No. The position of a witness in a trial is that the witness answers questions. A witness cannot turn up and make a speech. He cannot say, “Listen, folks, you have completely missed out all sorts of exciting things here, I have got to tell you, there is some really interesting information”. You cannot do that. The job of the witness is to answer questions and that is all I did and the only question I was asked about nose bleeds was the relationship of timing. Now I do not think I am really being criticised for not volunteering information, but that is not something that a witness can do.
Q Well, Professor David, I do not want us to get involved in satellite matters unduly but, if you had thought that the data supporting the link between bleeding and suffocation was tenuous, you would have told the Defence Team?
A Well, I think one has to remember that I was not instructed by the Defence. That question implies that I was in some way working with the Defence Team, which I was not. I was not instructed by the Defence. The position was that I had no involvement with the criminal process at all until I received an Order to attend Court to give evidence. So, there was no question of my assisting the Defence or the Prosecution. I was actually very keen to remain completely independent of the criminal process. I think there is sort of an underlying confusion about the question. The fact that I was called by the Defence does not mean that I was actually instructed by them, or worked with them, or produced a report from them, because I did not.
Q No, well I am not suggesting that you were instructed by the Defence. You see, this may be a question of emphasis and degree, but all I am suggesting is that if you had an opinion to the effect that the association between bleeding and suffocation was tenuous then, consistent with your duty to the Court the expert's duty that you have been drawing attention to you would have made that clear?
A Right. May I
Q I will just finish the suggestion.
A Yes, I am sorry. I beg your pardon.
Q Because the jury would have gone away perhaps believing that the association was established and that Sally Clark indeed suffocated Christopher half an hour before Stephen discovered the child bleeding?
A Mr Chairman, may I have permission to have a look at some papers? It will take me a couple of minutes.
THE CHAIRMAN: Mr Coonan, are you content with that?
MR COONAN: Yes, I do not know which papers. If it is a reference to any documents that there is no leave to refer to then I would counsel care, but I know not what documents are being referred to?
THE CHAIRMAN: Well, we are in an impasse because I do not know either.
MR COONAN: No.
THE CHAIRMAN: Do you want Mr Tyson to advise you?
MR TYSON: Sir, I currently am in exactly the same position as everybody else. If you were to give me leave to speak to this witness as to the nature of the documentation that he proposes to refer then I can do that, but I am not at liberty otherwise to speak to my witness.
THE CHAIRMAN: Well, perhaps if Professor David indicates the material to which he wants to look then we could get agreement with Mr Coonan that he is content with that?
Are you able to tell us?
THE WITNESS: Yes, certainly. What I would really like to do is to have a look at what I have called my "Third Medical Report" of 18 September and my amended and revised report of 26 July 2003.
MR COONAN: Well, I do not object to that.
THE CHAIRMAN: Both of which are before us.
MR COONAN: Well the one which is called the "Third Medical Report" is in your bundle, sir, C1.
THE CHAIRMAN: Yes.
MR COONAN: The other document is not before you. That is the one that Professor David prepared for the purposes of these proceedings.
THE CHAIRMAN: Right, right.
MR COONAN: But I have no objection if he wants a few moments of peace and quiet to look through it at all.
THE CHAIRMAN: Right. Well, let us agree to take a couple of minutes to enable him to do that.
MR COONAN: Yes.
(The Committee adjourned for a short time)
THE WITNESS: Right, thank you very much.
I think there are two things to say. The first is that I am having to cast my mind back to a little while ago when this trial was held, though I for obvious reasons remember giving evidence at it fairly well. And my quite clear recollection is that I was asked a specific question, when I was being cross examined by the Prosecution, and it was not the question was not about whether blood coming from the nose was a pointer to suffocation or not. The question was a specific one about whether a nose bleed resulting from trauma could be immediate or delayed. That was the topic of the question and I answered that question. And, if at that point I think I had tried to make a speech and I remember the occasion very well Mr Spencer, who was the Prosecuting QC, would have silenced me because my speech would have not related to the questions. That is the first point.
The second point is that I have looked at the literature for some while on this general topic. What I cannot tell you, because I have not got all the papers with me and I physically could not even bring them with me even if I wanted to, is that in the papers will be my review of the literature on this subject and I think that will have been disclosed and will have been read. But I cannot I have not got it with me and so I cannot check exactly what was written, but I think that my views on the somewhat uncertain nature of this association will have been known.
The reason why I was called was not to discuss the nose bleed. The reason why I was called to give evidence by the Defence was to talk about the evidence for an underlying disease process. That was the topic.
MR COONAN: (To the Witness) Yes. And so does it follow that, insofar as you did have doubts about or felt that there was a tenuous link between the association, you did not say anything to that effect?
A Well I was not asked anything to that effect, but my paperwork would have made it clear.
Q And the fact is though, is it not, that the proposition being advanced by the Crown at the trial of Sally Clark was that she suffocated the child, left the room and half an hour later he began to bleed?
A Well, I do not know that that is what they advanced because I was not there when that was said. They were trying to fit in the nose bleed and that was the way that they were trying to fit it in.
Q Now, I am going to move on to the next matter and I think we can start this by looking at C1 at Page 44. It is a point that you drew attention to yesterday, and it is at Point 2 at the top of Page 44 which is part of course of Professor Southall's report. And the whole of that proposition, particularly on the second line beginning, "ALTE's which are accompanied by nasal or oral bleeding are due to intentional suffocation according to our research", and yesterday you described that the research as being flawed, that there was an error here, that the data did not support that conclusion and, in particular, the cohort was almost self selecting. That was the criticism which you applied to that yesterday.
Now can I attempt to deal with that, please, and if you would turn now to C4, to the paper, it begins at Page 318?
MR TYSON: 318?
MR COONAN: 318, yes:
Q (To the Witness) So, in other words the criticism was that the paper and the data coming from the study did not show the frequency of suffocation as a cause of ALTE in the population. That was your criticism?
A Well, I had no criticism of the paper. My criticism was of the interpretation of the data in the paper the way that that had been used.
Q Yes, yes. That, I accept, was your criticism. Now can we look then and turn to the "Methods" section on Page 319, please, and we can just see what the basis of this was before we can then draw down any meaningful conclusions. On 319, in the right hand column, Professor Southall and his colleagues write:
"Between June 1986 and December 1994, 39 patients underwent CVS (36 after ALTE ...",
and so on:
"The number of ALTE reported by parents before CVS ranged from 2 to more than 50",
and then in the next paragraph:
"Of the 39 patients, 37 were referred from outside the local district (from 32 different hospitals) to national centres at the Royal Brompton and North Staffordshire hospitals. Two were patients from within the North Staffordshire Health District ... A total of 252 patients presenting with ALTE that required CPR ..." (that is cardiopulmonary resuscitation) "... were referred to our department at these two hospitals during an 8 year period".
And then this:
"As we developed CVS, there was almost certainly a bias towards referrals of patients with ALTE and suspicions of abuse. Therefore, these figures cannot provide a true epidemiological indication of the frequency of intentional suffocation as a mechanism for ALTE".
Now, if we just pause there for a minute, that in effect is a reflection of the criticism that you were making yesterday, is it not?
A Exactly.
Q And the authors put down their own caveat, or their own marker, for that?
A That is correct.
Q Then it goes on, and I am going to jump the next paragraph and I go to the paragraph beginning "Data":
"Data on the 38 children and their families who presented with ALTE and underwent CVS were compared with those on all 46 children referred to our unit during the same time period who had 1) also suffered recurrent ALTE and received CPR, and 2) underwent a physiologic recording that confirmed during a subsequent event that their ALTE was attributable to a natural cause".
And so in other words there was here a control group of babies with ALTE due to natural causes, and there were 46 of them, and what the authors did was to compare that group of 46 with the group where ALTE was proved to be due to intentional suffocation when under CVS and so the distillation of that is that they were able to derive the figure of 11 and 38 for the suffocation group and none of them in the 46 natural causes group had bleeding at the time of ALTE. So this was a proper case controlled study and the proposition at the top of page 44 that I drew attention to remains unscathed?
A Would you like me to agree or disagree?
Q That is the proposition I am putting to you?
A The first proposition I thought was very well put and I agree with it. The description of what is in the papers was absolutely correct. The second proposition is not correct. The difficulty is that the statement at the top of page 44 is a generalisation. There is not sufficient data to conclude what the cause of nose bleeds is. The only way that one can determine the cause of nose bleeds is by looking at a population of children with nose bleeds and then seeing what has caused them. I take the point that is being made that there was a comparison between different groups of ALTEs and I think that is a valid point, but the way this reads is that this is a definitive cause of bleeding and, of course, the evidence is not that strong because this was only historical data anyway.
Q All I was doing, first of all, was dealing with your criticism of the results from the paper that it was selective. The thrust of my question was to demonstrate that your criticism was unfounded, because it was not self-selected?
A The patients who were referred were selected. The patients were selected from around the UK. That was a very selected sample of patients. That is clearly spelled out. Only two of the patients who were studied were local. The rest were selected from all around the UK. That is a very selected sample.
Q Professor David, your criticism yesterday, was it not, was a criticism of self-selection based on the proposition that they were all potential suffocating cases, so therefore there was an expectation, or a given, that they would fall into that class, whereas in fact that is not the case?
A In terms of the 39 patients that is the case. I think it is fair that you are pointing out, and I did not point out yesterday, that there was a control group, but as far as the 39 patients is concerned they were a very highly selected sample.
Q I am going to leave it there, because I want you simply to deal with that particular piece of criticism which you made yesterday. Having drawn attention to the fact that there was a control group, that is all I am going to ask you about. The next matter concerns the question of definitions of ALTE. I am not going to go through all the references that Mr Tyson took you through yesterday at C4, but can we just turn up page 118 of C4? Your attention was drawn yesterday to the paragraph on the right hand side, half way down,
“Apparent life-threatening events (ALTEs), as defined by the 1986 National Institutes of Health Consensus Panel on Infantile Apnea, are events that are characterised by some combination of apnea, colour change, marked change in muscle tone, choking, or gagging and that are frightening to the observer.”
The definition was applied by Professor Southall and his co-workers, was it not, if we remind ourselves from page 142 of the same bundle in the bottom left hand corner under “Introduction”,
“An apparent life-threatening event has been defined as ‘an episode that is frightening to the observer and that is characterised by some combination of apnoea (central or occasionally obstructed) colour change, usually cyanotic or pallid, marked change in muscle tone, choking or gagging.’”
Page 145 refers to the National Institute of Health Consensus. The other so-called definitions or descriptions of an ALTE are largely derived from case reports, the authors of case reports, are they not?
A I cannot say what they are derived from. All I have done is to take papers on the subject and extract in my amended and revised report of 26 July various definitions that various authors have used.
Q At various times?
A Yes.
Q I wanted therefore to explore with you what was the purpose of drawing the Committee’s attention to that?
A It is simple enough and it is not really a very powerful point. It is arguable whether what happened to Christopher actually has the label of ALTE. Some people would have used it and fitted in with the definition that you have quoted, but there are other people who would only use the term under different circumstances and for them it would not have applied. All I am saying is that some people would not have used it. It is not a very major point, but it is a fact.
Q It may not be a major point, but it may be thought – I know not – by others to amount to a suggestion that Professor Southall’s approach to the facts in relation to Christopher was unfounded because there was a question mark over whether it was an ALTE or not. That, putting it bluntly, might be the suggestion made and so therefore I have to deal with it?
A Thank you.
Q If there was a question mark or if there has ever been a question mark over whether this was a properly described ALTE, that too would have been something consistent with your duty as an expert that you would have to deploy at a trial?
A I am sorry, I did not understand that final point.
Q If there had been at any stage during your work up on this case, which we know has taken so much time and effort from back in 1998 or 1999, if there had been any thought on your part that what was happening to Christopher in the hotel room was not an ALTE, that would have been a matter which, consistent with your duty as an expert, you would have drawn attention to somebody in the context of Sally Clark’s trial?
A Right, got it. Would you like me to comment?
Q Please?
A I do not think there was any use of the term “ALTE “ during the Clark trial. I do not think the term had actually been introduced. It is self-evident that it is a pretty unsatisfactory label like all the other labels that we have for things that we do not understand, like sudden infant death syndrome, which really means we do not know what has happened, or near miss sudden infant death syndrome, which means we do not know what happened, or apparent life-threatening event, which is another term which means we do not really know what happened. I have to say I am not a great fan of labels that do not carry a great meaning. It is not a term that I would introduce. I would look at the symptoms and signs exhibited by the patient and say, “What has caused these?” The symptoms in the case of this child were nose bleeds and choking and some difficulty breathing for a short period. My own approach would not be to find a label. My approach would have been to say, “What could have caused this?” and, in particular, the nose bleed because of the well known concern that a nose bleed in a baby who has collapsed can indicate suffocation. There was discussion about the importance of those symptoms and that was all in my report. I did not use the label. I am pretty sure I did not use the label because the label would not have really helped the thinking.
It is not a label I use in clinical practice. We get patients who come in. It is quite a common problem to have when you are doing general paediatric on call. You have babies who suddenly become unwell and change colour or stop breathing at home, or have a nasty choking do. The parents panic and they bring the child to hospital. I would say that is one of the more common acute paediatric problems that we see. I personally would not label that with the term “ALTE “, because I do not think it is helpful. I describe the symptoms and if I find an underlying cause, then I say what it is. In clinical practice I personally do not find it a helpful term. I try not to include labels that do not really help. That label does not say anything. It just says, “We do not know. We do not understand it.” There is nothing significant about the fact that I did not use the label.
Q But the point that you have made in these proceedings is that you have raised it, in effect, for the first time then?
A I raised it in relation to the point that was made in Professor Southall’s medical report in this case. That was where the term was introduced.
Q When the dust settled on this point, what is the point that you are now making?
A In relation to what?
Q When you draw the Committee’s attention, as you did yesterday, to the fact that it does not fit some of the definitions, but it fits others. What is the purpose of that?
A I think I would have to refer you to my amended and revised report of 26 July to answer that question.
Q Just tell us in a few words what is the point of you drawing the Committee’s attention to that?
A I have said it there. Let me read it out,
“It is questionable whether the statement “ALTEs” which were accompanied which were accompanied by nasal or oral bleeding are due to intentional suffocation according to whether research is accurate. The inference that this statement might apply to the Clark case is not qualified in any way and thereby tends to be misleading by overstating the argument.”
There is no real discussion about to what extent the symptoms in the Clark case actually fit with an ALTE. That is why in my report I discuss what the various definitions were. Not everybody would have labelled this as an ALTE.
Q But why is it misleading?
A By not being up front about that. It is saying this was definitely an ALTE. There is no, “It might have been an ALTE.” It was an ALTE, according to this report. If you look at the various ways the term is used, not all paediatricians would have used the term.
Q The definition that the National Institute uses is essential disjunctive, is it not, in its description?
A My use of English is not good enough to understand that wording.
Q It refers to some combination of characteristics. That is what I mean by that?
A Yes. It plainly fitted that definition, but it plainly did not fit some of the other definitions which focused on the importance of apnoea.
Q I want to come to the question of the causes of this nose bleed in terms of the mental process that you touched on yesterday. Sometimes, being a mental process, it can also be a silent process?
A I think I said that actually.
Q Yes, you did. Let us stand back for a minute and look at the two particular features which Professor Southall was aware of, at least from the television programme. First of all, he knew that the bleeding was bilateral?
A That is what he heard on the programme.
Q He heard Stephen Clark say it?
A Absolutely. As you will know, but the Committee may not, it was far from clear whether the nose bleed was bilateral.
Q I would suggest that that is not the case, but that it is abundantly clear that it was bilateral?
A No, that is just not true, to say it is abundantly clear.
Q Let me suggest to you why?
A That is what Mr Clark said in the television programme.
Q No. What Mr Clark said in his own evidence on 25 October 1998 at page 98 was in terms that it was bilateral?
A Which page are we referring to?
Q Do we have a transcript?
A Are we talking about the evidence to this Committee?
Q No, I am talking about his evidence at trial?
A That is fine. I do not need to see it.
Q Stephen Clark’s evidence on the television programme, his evidence at trial and also, I suggest, when you interviewed him, that is Stephen Clark, completely unprompted described this as bilateral?
A Can you help me by reminding me which page we are on in my report?
Q I am not dealing with it from the report?
A No, but I was and I have got it written down exactly what was said. We may as well get it right. I have got it. It is the third medical report of 18 September, which is a part of the official papers. What I do not know is what your official bundle number is.
Q Can you give us a paragraph?
A We start with paragraph 41.
MR TYSON: It is C1, 67.
THE WITNESS: Are we ready to go?
MR COONAN: Yes. We can read what is said at paragraph 41 and thereafter. That is what you said to the Court. I have a transcript here of your evidence and perhaps it might be a convenient moment if you had a look at this. Sir, we do have copies of this transcript and I would invite the Committee to receive it so that the witness can see exactly what is being put.
MR TYSON: Can I ask, this is a transcript of this witness’s evidence at the criminal court?
MR COONAN: At the trial, yes. (Same handed)
A Can I ask a question? Mr Chairman, I have been asked a number of questions this morning about what happened at the trial and what I said and what I did not say. I must say, I did not realise that the questioner had up his sleeve a transcript which I could have myself referred to. Is that appropriate? I was being asked to rely on my memory from really a number of years back and actually the person asking the question had got everything I had said right in front of him. I just wonder whether this is really an appropriate way to proceed. Should I not have been given this and given a chance to read it and look at it to refresh my memory or are these proceedings just a test of memory?
LEGAL ASSESSOR: It is not a test of memory, no. Perhaps it would have been better if this transcript had been produced earlier, but we are in the position that it was not. If you want to go back to those issues where your memory has been tested by reference to this transcript I see no reference why -----
MR COONAN: I have no objection at all. There will be other specific references to the transcript that I shall ask Professor David about in due course and that is the reason for putting it in front of him now. Questions thus far have been two general ones and if he wishes to see the transcript to see whether I have been wrong in the basis of my suggestion then, of course, he is entitled to it.
MR TYSON: Sir, we could possibly combine two things at once. It may, you feel, be an appropriate moment now to have a short break in any event and that would give this witness the opportunity to read through the transcript. I may be being practical rather than legal.
THE CHAIRMAN: I was intending, seeing as we did not start until 11 o’clock, to run right through to 1 o’clock. What I was going to say to Professor David was that if at any stage he felt he was disadvantaged by not having been able to refresh his memory by reading through it in its entirety, I would stop the proceedings to enable him to do that. With that proviso, would you be content to go on at this stage or would you prefer us to break now?
A My wish is to assist the Committee.
THE CHAIRMAN: Can I just say that if at any stage you feel you are being put in some difficulty because you have not had an opportunity to refresh your memory properly, then it is up to you to ask me for time to do that.
A The point that I was making is that I felt there was a fundamental flaw in being asked questions about events that happened quite some while ago by a questioner who had a transcript of what I had said which was quite deliberately withheld from me. I was not told it was available, I was given no opportunity to read it and I was further cross-examined about it and I just think that that is an ambush really and my request is that for any further questions that I am asked by anybody if there is a reference to a document then I should have a chance as a witness to read that document before the question is put. I think it is as simple as that and I think that is the sort of normal rules of engagement when documents are introduced in a legal hearing. It is as simple as that.
THE CHAIRMAN: I believe our Legal Assessor has largely agreed with you.
LEGAL ASSESSOR: I agree entirely.
MR TYSON: Can I raise a related point? You will be aware from the history of this matter that the only leave that the care court has given is for the third report that Professor David has produced, i.e. the September 2000 report which is the one in C1, to be disclosed. The reason for that and the order is in your bundle and it is the order of Mr Justice Connell in December 2000. Can I refer you to page 102 of the bundle. It is the specific leave given at paragraph 3:
“There shall be permission to the 2nd Respondent father to disclose to the General Medical Council for their consideration in connection with any complaint made by the 2nd respondent about Professor Southall;
a) any report or correspondence, including e-mail prepared by Professor Southall in connection with or arising out of or filed within these proceedings”.
So (a) relates to anything produced by Professor Southall.
And:
“b) any report or correspondence prepared by Professor David either filed in or arising from these proceedings in response to or dealing with the involvement of Professor Southall”.
What concerns me in this case is that that means there is no leave for the 350 page document that the professor told you about yesterday and by putting to this professor matters of which he did or did not deal with in the criminal court when he was subpoenaed on the basis that he had written this long report about the matter is a way of getting in, as it were, through the back door matters which the care court have sought to prevent coming through the front door. That is my concern in this case. I am not saying that it has been breached, but it is very concerning to me that that is where we appear to be going and that is a different related point to that made by Professor David effectively that he should not be ambushed and there should be equality of arms.
THE CHAIRMAN: Mr Coonan, do you wish to respond to that?
MR COONAN: Yes. I am grateful to my learned friend for raising that point. I must say it is a point that in using the transcript had not occurred to me, but it is right that we should consider it, because obviously one does not wish to breach the order of Mr Justice Connell in any way. The first observation I have, having heard my learned friend, is that the transcripts are themselves not in breach of the order. The content of those are a matter of public record and can be referred to.
The second matter is that the passages which as matters stand I have contemplated drawing the attention of Professor David to are simply matters which are intended to draw the Committee’s attention to what he actually said in the proceedings. It is not intended, and I understand my learned friend’s concern, to breach the order by adducing material by the back door and if it was felt that that did then, of course, you would be the first to stop me. But that is not the intention and, of course, one will have to be vigilant to ensure that does not happen. That really is, I can assure you, not the intention at all.
MR TYSON: Where we started getting into difficulties in this matter was when my learned friend was putting matters to this witness, saying, “Why did you not say that in evidence?” and the witness was saying, “I said it in my report, but I was not asked about it in evidence” and that is where one gets into a difficulty. Can I illustrate one point showing where the difficulties are and I am just really trying to point out the fault lines here rather than making any criticism?
There is an issue raised by Professor Southall in his report about the torn frenulum. It was dealt with and there is a considerable amount of evidence about the torn frenulum and why it was torn. I did not feel that I could deal with that with Professor David when giving evidence simply because it was not a matter within the province or the knowledge of the papers that have been disclosed in this case. This illustrates the kind of difficulty that we are in. I just merely want to highlight the difficulties rather than promote a solution.
THE CHAIRMAN: I think I would have to say that the Committee will be aware that some of these issues are tangential to the main considerations that bring us here. Therefore, we can take our own view about the points that are being raised.
MR TYSON: You are here to deal with heads of charge.
THE CHAIRMAN: That is correct.
MR COONAN: Yes, it is.
THE CHAIRMAN: I just want to ask our Legal Assessor at this stage whether there is anything he wishes to say.
LEGAL ASSESSOR: Counsel is right. We must, of course, comply with the order. I think it is a case which has been suggested by counsel of examining every question piece by piece as we come to it to see that it satisfies the criteria. I do not know where these questions are going to lead and, therefore, I cannot give a more general set of advice.
THE CHAIRMAN: Mr Coonan, can I suggest we call this document D1 before you start?
MR COONAN: Thank you, yes.
A Mr Chairman, could I ask a question?
THE CHAIRMAN: Of course.
A Could I ask, firstly, whether I am required to read this document and, if so, which portions of it because it is pages 7 to 72, so it is almost 70 pages and is this just being provided for my interest or are there going to be further questions and, if so, could I ask in which sections it is in relation to because studying this document in any detail is going to take quite some while and it may be a complete waste of time because there may be no further questions or it may be there is just one question on page 14 and it would be helpful to know that and, in addition, if there are any other documents that are going to be produced from counsel’s back pocket that I need to know about could I have those now rather than thrust upon me in the heat of the moment which is not the way to proceed?
MR COONAN: Sir, I am going to do what I intended to do, unless I am stopped, which is to take Professor David to particular passages. My learned friend in the ordinary way when he has had an opportunity of looking at it (I do not know whether he has had access to this before) can re-examine in the appropriate way. But I do not want Professor David to think that this is a ambush. That is not the purpose of it.
THE CHAIRMAN: But I think his point is that if there are going to be a considerable number of these passages he maybe needs to be given the opportunity to read what he had previously said before he is asked questions on it and if there are going to be a number of these passages that he maybe needs to be directed towards them now. We can then give him an opportunity to refresh his memory before he is then asked to comment on what he has said.
MR COONAN: Yes, I am happy with that.
THE CHAIRMAN: I think, putting it all together, we ought to have an adjournment now. That would give you an opportunity to direct him towards the passages that you wish to raise with him and it would then give him an opportunity to refresh his memory before we start into questions. Perhaps if we stop now and seek to start again at about half past one that would enable us to cover all these grounds and have a lunch break.
MR COONAN: Certainly, sir, yes.
THE CHAIRMAN: If for any reason that seems to be insufficient time then, if necessary, we will delay the onset of our afternoon start.
MR TYSON: I wonder if my learned friend would specifically answer the two questions raised by Professor David. Firstly, to approximately what pages of the transcript is he going to direct him and, secondly, are there any other documents which he has in his back pocket?
THE CHAIRMAN: I understood him to agree to the first of those premises. I think there is this other question.
MR COONAN: Yes, if there are any other documents. I do not think there are. This was the document I wanted to draw attention to.
THE CHAIRMAN: And you will indicate to Professor David the areas that you wish to raise.
MR COONAN: Yes, I will.
THE CHAIRMAN: Right. Thank you. We will then take a break and unless otherwise informed we will start again at 1.30.
(The Committee adjourned for lunch)
(Professor David was absent from the Committee Room)
THE CHAIRMAN: I have just been informed that Professor David wants another 20 minutes to read. So I apologise for that, that I was not aware of that, but I think there is no point in us sitting here for 20 minutes.
MR COONAN: Well there is no apology needed, sir, but thank you very much.
THE CHAIRMAN: Yes. Well one of the things we might just deal with, at least in a preliminary way, is that if we are looking for additional days the Committee have looked at their diaries and come up with three days at the beginning of July I think it is the 5th, 6th and 7th. So, I mean we are not wishing a response now, but if perhaps Counsel could consider their own position in relation to those dates?
MR COONAN: Yes.
THE CHAIRMAN: And, if not, then we will try and find some other ones.
MR TYSON: I am obliged, sir. I have given my unavailable dates to your Committee Clerk and so she is aware of them.
THE CHAIRMAN: Right, okay. Well, we can retire then.
(The Committee adjourned for a short time)
THE CHAIRMAN: Mr Coonan?
MR COONAN: Thank you, sir:
Q (To the Witness) Professor David, can I just go back to start the process of this point again. What I am about is to just, with your assistance, to go through the potential causes of this nose bleed and just to look at some of the logical steps that can be applied to that process of establishing the cause, all right? That is just to give you advance notice of, as it were to use a hackneyed expression, where I am coming from, all right?
Now, the first point is this. We start with some evidence of Christopher in the hotel room having difficulty in breathing, and that was described by Mr Clark on the television programme, all right? And the Committee have received that evidence?
A Right.
Q The second is that he, Stephen Clark, described the bleeding as bilateral and that was on the television programme, and then in addition to the television programme I was about to draw attention to a passage in the transcript of your evidence at Page 69. Just halfway down well I can pick it up, actually, just before halfway down there is a question put to you, which is the fourth question down on Page 69:
"Q And you have told us in your evidence and it is the basis to some extent, if not substantially the basis of your conclusion, that according to Mr Clarke this child was choking, coughing and having difficulty breathing, struggling for breath?
A Yes.
Q Insofar as blood from one nostril or two nostrils, yes?
A Yes.
Q Did you in any way suggest to Mr Clarke that this child might have been bleeding from both nostrils?
A No.
Q That was completely unprompted?
A Yes. In fact, I had no very good reason for asking the question. I only did it as a way of trying to test his memory. I thought if this is a genuine thing, let's see if he can remember which side it came from and that's how it came out. That was the only reason that I asked the question".
And so both in the television programme, and indeed I suggest in reality, the evidence as is is that this was bilateral, do you agree?
A No, that is incorrect.
Q And why is that incorrect?
A It is incorrect because and I do not think I can refer to the material because it has not been disclosed in my reports I have made detailed reference to the interviews that I had with Mr Clark, and on the two first occasions when I asked him there was uncertainty as to whether the bleed was from one nostril or the other nostril. And if you would like me to refer to the paperwork I will try, but it was after I had asked that question on two separate occasions that I then explained to Mr Clark what the possible medical significance might be of the difference between bleeding from one nostril or two nostrils. And, as you will know but the Committee may not know because they may not have the report, there was an impression that thereafter I think I used the words "firming up" so that the strength with which the nose bleed was reported to be bilateral increased. Now that is documented and, if you would like me to find the source for that, I can.
Q No. Well, you see, one has got to be careful about this, I suggest. That whatever may have been your impression, the fact is, I suggest, that the evidence that you gave was that it was an unprompted explanation that the bleed was bilateral?
A That is absolutely true. It was unprompted. I did not prompt an answer.
Q No.
A But, as I have explained, the answers to the questions that I got from Mr Clark varied slightly as I repeated them. I had asked the question three times and I have explained how it slightly changed, and I think that slight change is of some relevance to the subsequent answers that were given.
Q Well
A But what is said here is true. There was no prompting of answers, that is absolutely correct.
Q Well in due course I may have to invite the Committee to receive Stephen Clark's own evidence on that point, but I have made the suggestion about bilaterality and I think we can move on.
Now against the background of difficulty in breathing and a bleed, I want now to consider the possible causes. There were in fact only really four possible causes of this bleed, were there not? Firstly a spontaneous bilateral bleed, either due to natural causes such as an infection or foreign body or a finger of that sort, or due to a particular medical condition and we will look at these in detail in a minute. So, that is the first general cause. The second general cause would be due to a condition of the lung idiopathic pulmonary haemosiderosis? In other words, a bleed which comes from the lung and mimics a bleed from the nose. That is the second cause. The third cause is abuse/trauma/smothering by either Stephen Clark or Sally Clark. Do you agree?
A We have got a fourth cause?
Q Yes, there are two. Stephen or Sally?
A I am sorry, you have lost me. I have written down three causes?
Q No, I will start again.
A Do you mean Item 3, abuse, could either be one or other of the adults?
Q Yes, that is right.
A I have got it, okay.
Q Right. So, those are the four causes and you say as much in your report that you have supplied to the Court (and the Committee have that), do you agree?
A Well, I follow that. You have made an assumption that it was bilateral
Q Yes.
A and I do not especially want to go back to that, but you will recall that I was not making any assumptions about it being bilateral because when I very first asked Mr Clark there was no certainty about it being bilateral.
Q Right.
A There was certainly a possibility.
Q Well, as I say, let us move away from the bilateral point.
A Okay. Well, it was just that you included the word and so I had to pick it up.
Q All right. Now, let us just take and I am going to take this as quickly as I can without sacrificing necessary accuracy. The first one is the spontaneous bilateral nose bleed due to an infection (and you used the expression yesterday a viral infection, a mild viral infection) a foreign body, or finger or something of that sort. Now, it is manifestly clear from Dr Southall's report that he must have excluded that?
A Can you direct me to where that inference is stated?
Q Well I do not think we need to go to the body of the report, because by definition he is asserting that it was an attempted suffocation and so by definition he has excluded it. That must follow?
A So, there is not any reference to that in the report?
Q No, no, forgive me, Professor David. I just want to go through with you the logical process.
A Right.
Q That is what I am doing.
A Okay.
Q The silent logical process. It must follow that Professor David(sic) had excluded, as part of that process, a spontaneous bilateral bleed in order to come up with a conclusion that the nose bleed was due to smothering?
A Well first of all you meant Professor Southall, not Professor David, but leaving that out you were saying he must have excluded. We do not know what the thought processes were about what was excluded or not excluded.
Q Right. But let us assume he had applied his mind to it, it has clearly been excluded?
A Well, hang on. Are you asking me to assume he has excluded it, or are you asking me to agree he had excluded it?
Q Professor David, let us not be and I apologise over-pedantic about it. It must follow that it has been excluded as a matter of fact?
A No, as a matter of fact there is no statement in this report that I can see that these natural causes have been excluded. Is that not the fact? Have I missed something?
Q Professor David, if a doctor comes to the conclusion that the cause of the nose bleed is due to smothering, it must follow that any other cause is by definition being excluded?
A It depends how the doctor has arrived at that conclusion.
Q Well, that is another matter.
A If the doctor has leapt to that conclusion without considering other causes, then the assumption is wrong.
Q Right.
A If the doctor has carefully considered all the possible causes and has then arrived at a final conclusion, having looked at all the data, then that assumption is true.
Q Right, okay.
A But we do not have that.
Q All right. Well, not yet, but we can proceed on the basis that the report does not itself proceed on the basis of a spontaneous bilateral nose bleed?
A There is no mention of a spontaneous bilateral nose bleed in the report.
Q Right. Now let us just leave aside what Dr Southall's own mental processes were because the Committee will hear from him on that point but, as a matter of fact, your view about the element of spontaneous bilateral nosebleed being a cause in this case is described at your Paragraph 39 of C1. May we look at it for a minute?
A Which report is this?
Q This is the 18 September 2000, the one the Committee have?
A Okay.
Q And I will give you your internal
A Great.
Q It is Paragraph 39, our Page 66 and it is your Page 19?
A Right.
Q How you described it in this report to the Court was that:
"... I expressed the opinion that the third explanation, namely that Christopher had a severe spontaneous nose bleed, is a possibility. I remain of this view, although as before I feel it would be a remarkable and most unusual occurrence".
Now, of course we have to bear in mind that this report was written after you gave evidence. That is right, is it not?
A Yes.
Q And you have had an opportunity of looking at the transcript. Can we just turn up the reference how you put it then at Page 49?
A 49?
Q Yes, please, of the transcript. I pick it up towards the bottom of the page, the third question from the bottom beginning, "Yes, I agree", and then the questioner Counsel goes on:
"Q Now the nose bleed incident. You, Professor, I think discount really the possibility of this being a spontaneous nose bleed starting in the nose?
A Well, I don't discount it but I think it is less likely..." (and then there should be the word "than" inserted "... than the blood coming from below, for all the reasons that I gave.
Q Most unlikely?
A Yes".
And then to complete the picture over the page at Page 50, the fourth question down:
"Q As a matter of interest, how often have you ever come across spontaneous nosebleed in a baby of nine weeks down both nostrils?
A Both nostrils spontaneous, can't ever remember having seen it.
Q In your 29 years as a paediatrician?
A Correct, and that's one of ..."
MR TYSON: Could you read on?
MR COONAN: Yes, I will start the question again:
"Q In your 29 years as a paediatrician?
A Correct, and that's one of the reasons why, if that report that it was bi lateral is true, that's one of the reasons why I think it is unlikely that that was spontaneous".
MR TYSON: That is fine.
MR COONAN: (To the Witness) And then there is a passage which I will come back to later.
And the end result on this topic at least is that a spontaneous bilateral nose bleed, it would appear from whatever cause, is really a very remote possibility, would you agree?
A I cannot improve on what has been said.
Q Right.
A I absolutely agree. "... a remarkable and most unusual occurrence".
Q Right. Now I should for completeness, of course, deal with the other possible mechanical cause of spontaneous nose bleed which is due to an underlying medical condition. Now the conditions that might cause a nose bleed of this type are leukaemia, for example, is that right?
A Well, any condition that interferes with blood clotting and that would be one of them.
Q Right. And as a matter of fact in this case there was no evidence of that?
A Well, as a matter of fact in this case there were no investigations to look for any such disorder. But there were no particular pointers other than you might argue the bruises, which were highly questionable, and the bleeding into the lungs, but apart from those features there were no indicators of a coagulation disorder.
Q Right. Now, at one stage of the unfolding involvement of Professor Southall in this case you were present at the July the 28th meeting. Can we just turn up one part of the memorandum of that? It is at Page 31 of C1 and it is really just to highlight the point. It would appear that at least for part of this what has been called the first part of this meeting, you were present. Do you remember being there for the whole time of Part 1?
A Yes.
Q You were, right. Now, look towards the end of page and we pick up a reference that Professor Southall and, just to introduce it, it is the end of the fifth paragraph is referring to some unpublished American research and then there is this paragraph:
"Guy Mitchell asked Professor David whether he agreed with any other possible causes for bleeding from the nose and mouth other than suffocation. Professor David confirmed that Professor Southall had covered those sort of cases i.e. because of a medical condition ..." (and there should be the word "of" inserted there, I suggest) "... of which there was no evidence that Christopher had. Professor Southall confirmed that if there was such a condition he would expect his bleeding from other sites from that suggested".
So, if we can just pause there that highlights the point, I think, that you have just made, that Professor Southall was in effect having confirmation given to him that there was no evidence of any underlying medical condition causing the nose bleed?
A No, I do not think that is right. I think if you look at the final sentence here it is the key. I do not think it is a very good note actually of the meeting, although I cannot compete with any of my own, and I do not think the note was circulated for people who were present to check it either. However, if we look at the final sentence it says:
"Professor Southall confirmed that if there was such a condition he would expect his bleeding ..." (and I think that is this bleeding) "... from other sites from that suggested".
My reading of that is that this discussion was about bleeding disorders, not any old underlying conditions. The logic that Professor Southall was applying, which I think was a perfectly reasonable logic, was that if this child had a bleeding disorder, then one might have expected there to have been bleeding from some other sites. I think this discussion really refers to bleeding disorders, not to any old underlying disorder.
Q No, I am confining it to underlying medical conditions?
A It is just that when you said “underlying” you did not specify. I think this discussion was about bleeding disorders.
Q Can I move on to the next cause, which was the idiopathic pulmonary haemosiderosis. I am going to call it IPH for short, you understand?
A Yes.
Q As a hypothesis, this would, if it operated, explain why there was evidence of old blood in Christopher’s lungs and why, if the same mechanism was operating at the time of death or as a cause of death, there might be new blood in the lungs as there was?
A That is correct. It is a possible explanation of both old and fresh bleeding.
Q Let us assume, if you will for the moment, that Professor Southall went through the mental processes and excluded it. Assume that. We have not heard from him about that yet?
A Okay.
Q Let us just look at the weight of the evidence in favour of this. You were in a minority of one at trial on this point?
A That is correct.
Q I do not want to use this in an over pejorative way, but all the other prosecution witness in effect described this as a non-starter?
A That is correct. They actually denied the existence of the condition.
Q Yes. At trial you accepted, did you not, and you can look at page 50 of the transcript to get this, that if the nose bleed was bilateral, then therefore the nose bleed was caused either by IPH or, in effect, by smothering. Those were the two choices?
A You are absolutely correct.
Q In the report that we have there is set out the theoretical basis for your lone opinion on this point. I am not going to go through it in detail?
A Which report is this?
Q This is 18 September where you refer to the work of Cutz?
A Shall we go to the pages?
Q You referred to it at trial?
A Yes.
Q It is there for the Committee to see. I am not going to take you through it, but I draw it to the Committee’s attention as we go through this, because it may become important later.
MR TYSON: Page 69 onwards.
MR COONAN: Thank you. Therefore, one comes to the last two potential causes, abuse by one or abuse by the other, Mr Clark or Mrs Clark. It is in that context that the question of whether or not, if there is suffocation you expect to get a bleed straightaway as opposed to after a delay. That becomes a very significant question?
A It was a significant question at the time.
Q Insofar as Professor Southall was saying, as he clearly was, that once you assume it is suffocation a bleeding immediately follows, you agree with him?
A We completely agree on that.
Q And there is some clear blue water, or was at the time, between that view and that of Professor Meadow, who took the view that it could well come on after a delay of some hours?
A That is what he said in his evidence.
Q In the light of that, it is entirely reasonable to put – this is my expression, nobody else’s – at the very least Mr Clark’s role under the spotlight?
A Is that a question?
Q Yes?
A I did precisely that in my original report for the Court, of which you have a copy of the relevant section.
Q Professor David, I am not suggesting you did not, but we have to draw a distinction, do we not, for present purposes, between that which Professor Southall was doing and that which you have already done?
A Right.
Q Because the Committee are going to judge what he was doing and not what you did?
A Right.
Q It is because you have considered this very question that Professor Southall clearly had considered in his report that you took the view that what he had to bring to all this did not really consist of new information at all?
A My view was there was nothing because I could not see anything new. There was nothing new that had not already been covered.
Q The reference for the Committee in the bundle is paragraph 30 of the 18 September report, where you expressed that view. Yesterday Mr Tyson drew your attention to the fact that some other people took a rather different view and thought that this was new. Let me make it quite clear. It can either be characterised as new information or it can be characterised as a new interpretation or a new look at it. That I understand. I want to suggest to you that even though you took the view that you considered all this, as you had, you did not tell him that you had done that?
MR TYSON: Did not tell who?
MR COONAN: Professor Southall?
A It is correct that I did not give information to Professor Southall. I was not able to.
Q The point is that here he is obviously to you ploughing his own furrow and coming to a view about Stephen Clark. You have already done that and you do not tell him?
A I do not tell him anything. As was quite clear from the rules of engagement for that meeting, I was not permitted to give any information. The rules of engagement for that meeting were that I was to find out from Professor Southall what his view was based on his watching of the television programme so that I could then produce a report. We can discuss it further, but you will have gleaned from some of the correspondence that there were severe constraints on what I was allowed to do. There were a lot of worries about me disclosing information. That was the main reason or one of the reasons why there was the suggestion that Mr Wheeler should be there, to make sure that I did not say anything.
Q Professor David, there are two aspects to that. You were here the other day, were you not, when Mr Wheeler gave evidence and he drew a distinction based on the order of Mr Justice Connell between you when you meet Professor Southall, handing out documents and actually being at liberty to disclose information verbally about the case. Mr Wheeler’s clear understanding was that you did have permission to do that. Is he right or wrong?
A I do not think I can say he was wrong about his how understanding. I can certainly tell you what my understanding was, which was that I was not allowed to disclose any information, whether it was verbal or written.
Q Whatever may have been your understanding, the fact is that when Professor Southall was developing this analysis that he had here, you did not tell him that it was not new. You did not tell him that you had dealt with it in your report, did you?
A No, that is correct.
Q You did not tell him how this matter had been dealt with at trial?
A That is correct.
Q You did not tell him what your evidence had been at trial?
A That is correct.
Q I am re-treading the argument here, but forgive me as I have to cover it. You did not tell him that Stephen Clark’s specific role had been considered and ultimately rejected by you and by everybody else?
A I think we are repeating the point. I did not tell him anything. The only words I might have used referred to the complexity or something like that, but there was no information.
Q When it came that the report was sent and he received it, you had a discussion, you and he, on 8 September. You sent an email to him and there was a telephone call and he sent the email back. You, without telling him, published that email in your report to the Court, did you not?
A I included it. I am not sure that “publish” is quite the right word. It was there.
Q You did not tell him that you were going to do that?
A It is a fact in all care proceedings, and I think everybody is familiar with care proceedings knows, that absolutely everything that is written down, whether it is a report, a letter or an email letter, it is the same thing. All materials are automatically disclosed. You are right that I did not say, “I must say to you that when you reply to this letter I shall be disclosing your letter”, because they are the basic rules of engagement in care proceedings, that all materials are automatically disclosed.
Q But you see was, was he not, somebody who had been asked to put to you, to use an expression by one of the lawyers, points of concern. He put it in a document which he handed to the Court. You have explained why you had some concerns about that and you spoke to him. When you sent that email to him and he sent the email back, that was simply just two communications between one doctor to another?
A No. They were part of the paper work. All the paper work that I created or received, the whole lot, was automatically to Mr Wheeler, everything.
Q That may have been from your standpoint, but Professor Southall was not a party to the proceedings. He was not an expert in the proceedings?
A I was not a party to the proceedings either. I was an expert. I was instructed to prepare a report and in the same way Professor Southall had been requested to prepare a document which he called a medical report. It was covered by exactly the same rules, automatic disclosure of everything that is written down. I think that is well known to everybody involved.
Q And that would include a note of a telephone call?
A Yes.
Q Anything said during the telephone call?
A One’s instructions are, and I am not sure I always follow them as well as I should, but one is meant to keep a note of all one’s telephone conversations and provide details. I would have to confess I am not always brilliant at doing that, but that is what one is meant to do.
Q May I suggest that in the telephone call that preceded Professor Southall’s email and reply you were really suggesting to him that you wanted something in writing so that if it became necessary when you were giving evidence you could refer to it in order to emphasize the extent of his concerns?
A No. My concern to have things in writing is just me, that it is much easier to have things in writing than to have verbal conversation and you do not have discussions about who said what, which I find very tedious. My preference, because all this has to be disclosed and it is a sort of reflex of mine, is to say, “Please put it in writing, then there is no misunderstanding.” There is no other reason for it than that. That is a reflex.
Q You see the point that if someone did not fully appreciate that it was going to be disclosed they may choose to couch their language somewhat differently?
A I cannot comment on what was going through Professor Southall’s mind, but I guess he must have been involved in many more care proceedings than I have. He must be familiar with the rules of disclosure.
MR COONAN: Sir, would you forgive me one moment? (Pause) Thank you very much Professor David.
Re-examined by MR TYSON
Q A number of matters arising out of that cross-examination. First of all, you were asked about the instructions you received or the rules of engagement, as I think you called it, between you and Professor Southall?
A Yes.
Q Could you look at the beginning of your report, at our page C1 52 and your internal page 5 of your third report of 18 September?
A Yes.
Q Do you note what you wrote about the rules of engagement at paragraph 7?
A That is correct.
Q Does paragraph 7 read,
“My instructions were that absolutely no information about the case and no papers connected with the case should be disclosed to Professor Southall.”
And that you provided a written undertaking to that effect?
A That is correct. I had never had to provide a written undertaking before, but I did.
Q To whom did you provide the written undertaking, can you recall?
A The written undertaking was in a letter which you have in your bundle to a solicitor call Mr Devlin and a copy to another solicitor called Mr Hamilton. Although it does not say it on my letter, it was copied to Mr Wheeler and to the local authority.
Q Page 36?
A Yes, that was where I gave my undertaking.
Q At the third paragraph,
“My agenda for the meeting would be to confine it to one sole topic and that is Professor Southall’s data on nose bleeds. The meeting would be a one way event, i.e. I would be asking Professor Southall questions without at any stage providing him with any information.”
A That is correct.
Q It was suggested to you that Professor Southall had excluded IPH in the questioning put to you.
A Yes.
Q Could you look, please, at the note of the strategy meeting at the last page of the first part of page 32. Can we read together the penultimate paragraph:
“There was some discussion about whether Christopher himself could have caused the bleeding to himself by accidental injury and Professor Southall indicated that it was very unlikely in a child of this age. Patrick Wheeler asked whether IPH had been considered. Professor Southall felt that he needed more evidence and would need to see the post mortem findings”.
A That is a correct reading.
Q So if that is a correct reading, the question is had he excluded IPH at that stage?
A He could not have done because he had not had sight of any of the papers.
Q You were asked questions arising out of the transcript of evidence that you had given at the criminal trial. Can I ask you as a preliminary, first of all, to look, please, at Professor Southall’s report at C1 at page 44 and under “Other issues” item 2. Do you note that he there says:
“ I note the torn frenulum on Christopher. Much of my clinical work involves paediatric intensive care and I regularly intubate and resuscitate infants. Contrary to the view expressed by Dr Cowan” -----
Pausing there, who is Dr Cowan?
A Dr Cowan was then one of the consultant paediatricians at Macclesfield. She was on call the night that Christopher died. She was called ----
Q Was she the lady paediatrician on the television?
A She was on the film. She was called from home and was in the A & E department while he was being resuscitated.
Q “Contrary to the view expressed by Dr Cowan, it would be extremely unusual in my experience for the frenulum to be torn as a result of resuscitation. It is most likely to have been the consequence of abuse, including intentional suffocation”.
Looking at the transcript which was put to you, would you like to look, please, at your evidence-in-chief about this matter which begins at page 11. This is your evidence-in-chief when you were being asked questions by Mr Bevan, counsel for the mother, where he says about four questions from the bottom:
“I am going to turn to the frenulum of the child”.
Do you see that?
A Yes.
Q So that is just setting the pace and over the page at page 12 you were asked the question to which you gave a long answer:
“Would you help us please on in your opinion, using your own experience as a paediatrician, on how the split and bruise that I have described could possibly have come about?”
You then gave a number of reasons for damage to the frenulum. Did you say in particular about four lines down:
“Now, in this particular case, you have got the added ingredient which is not only that there were attempts to resuscitate but that it was particularly difficult because the baby was stiff”.
A That is correct.
Q Did you go on at the bottom of page 13, the last two questions. Question 1:
“This jury probably doesn’t know how easy or difficult it is to intubate a child in this condition?”
“Well, it was -----”
“But you as a paediatrician can help us?”
Answer:
“It was quite clearly particularly difficult and it was difficult because the baby was stiff and that was because the baby was dead and I’m sure because the baby had been dead before he arrived”.
A That is correct.
Q Was Professor Southall from watching the television programme in a position to know that question effectively, that rigor mortis had set in at the time of the intubation?
A None of that information was available in the television programme.
Q In the light of the true information, how do you regard what the professor felt able to say in his report under “Other issues” no. 2 and to criticise the paediatrician in the process?
A I have already commented that I thought it was extraordinary that there should be disagreement expressed with a paediatrician who had actually been present by somebody who actually knew nothing about the case other than what was in the television programme and, of course, therefore was not privy to information about the remarkable difficulty that existed in intubating the baby and the fact that at least one member of staff had attempted to do it and had completely failed.
Q You have had the opportunity to go through the evidence at trial and in the light of the questions that my learned friend asked you when you did not have that opportunity is there anything that you would like to add or qualify in respect of your answers already given now that you have had an opportunity of reading that transcript?
A Thank you for that offer, but I actually cannot remember all the questions or my answers, so I will have to pass on that offer.
MR COONAN: If you wait there you may be asked some questions by members of the Committee.
THE CHAIRMAN: Mr David, you are familiar with the process and, again, it may be now as a consequence of the prolonged period of question and answer that you have undergone that the Committee may have additional questions for you and if they do again I will introduce them to you before they ask the question. First of all, Ms Langridge who is a lay member of the Committee.
QUESTIONED BY THE COMMITTEE
Q Professor David, I wanted to ask you about two sets of reports and two sets of involvement that you have had with this case. One was appearing in the criminal court case and the other is the child care proceedings. At the time of your meeting with Professor Southall I understand that the transcript of the original criminal court proceedings where you gave evidence were in the public domain, indeed we have been given a copy today. I understand the difficulties you were in in respect of the child care proceedings, that you were not allowed to disclose any information, but presumably the information you had given in court was already disclosed and was in the public domain. So did it occur to you to suggest to Professor Southall that he might wish to look at the court case proceedings and the evidence he gave there and, indeed, other medical experts gave, before writing his report?
A Thank you. The first thing is that ----
MR TYSON: I am sorry, there is a logical lacuna in the question because the meeting between the two professors was after the writing of the report, not before the writing of the report.
MS LANGRIDGE: I may have phrased myself poorly, Chairman, but I think what I am trying to suggest is that in his discussions with Professor Southall did Professor David suggest that Professor Southall might look back at the criminal court proceedings which were in the public domain as they might help him with information which he might otherwise not have gained from the Dispatches programme? That is all I am trying to seek.
MR TYSON: I am sorry.
A Thank you. I am possibly the least informed person in this room about obtaining documents that are in the public domain. I take the point that when one has appeared at a criminal trial what has been said is in the public domain. I have to say that I would not have the first idea how one would obtain the transcripts of a criminal trial. I do not know whether they are always made or only made on certain occasions and I would not have the first idea how to obtain them. So it would never cross my mind to suggest to somebody else that they should do that because I would not know how to do it and I would not even know to what extent a member of the public can get transcripts of criminal trials. So I am afraid I feel very weak on this subject because I know nothing about it. Of course, the second point is that the rules of engagement were strict and I was not there to give information or to make suggestions. It was a fact finding mission. I was there to find out from Professor Southall what was in his mind, what his data was in particular that underpinned his conclusions. My mission was not to tell him what to do. It was to find out information.
MS LANGRIDGE: Just to follow on from that, and I do accept your point about documents being in the public domain, I do not think I realised until today that all of these papers were in the public domain and, like you, I would have difficulty accessing them, but clearly in regard to page 46 when you E mailed Professor Southall you were concerned, I think you expressed it, and you wanted to give him the opportunity to insert any caveats if he might wish to do so and given that you clearly had a concern for a colleague who you saw, I think as you presented it, behaving in an unexpected way, I wondered in those circumstances whether you might have seen that there was a difference between the childcare proceedings and the criminal court proceedings.
A Right. I will give an answer, but it may be that I am at cross purposes and if I am please tell me and I will try again. I have to be careful how I word this. My views were that the primary data in a case are important; in other words, the key data from my point of view as a medic is post mortem reports, hospital records, reports written by experts who have looked at all these materials, laboratory data, X rays and so on. I call that the primary data. Witness statements, first hand data of studying the case. As a medic looking at the cause of death of a child I would regard what gets said in the course of a trial by way of evidence not primary data, but secondary.
I realise there are lots of lawyers here and they may take a very different view on the importance of what gets given in evidence, but from my point of view as an expert in determining what the cause of death is the key data was the medical science relating to the three children. So when I was saying to Professor Southall, you know, “You have not looked at the data”, it would not have even crossed my mind that he had not looked at the transcript of what was said at the criminal trial because for a start that was just the tip of the iceberg. If you look at the things that I was asked about, just the number of topics, never mind the length of time and the amount of topics that I covered in my report, in a trial you just cover a tiny fraction of the data.
So when I was sending an E mail saying, you know, “Spare a thought for all the data” I would not have thought of the transcript of the trial. It was really the primary data – medical, science, witness statements. That really was what I had in mind. I do not know whether we are at cross purposes of whether I have answered the question.
Q No, we are not, thank you.
A Okay.
THE CHAIRMAN: Can I just come back to the question of nose bleeding. I am not a paediatrician, as you will be very aware, and I really have two questions just to try and help me to put it into perspective. Could I ask you to begin with if a small infant was brought into a casualty department with a nose bleed as the only finding, in your opinion, to what extent would that trigger a suspicion that child abuse might have taken place. In other words, is that something that instantly the admitting casualty doctor would think about?
A I think that is a very good question. It relates to a question that Mr Clark raised. I mean, he put me on the spot when he made reference to the fact that consultant paediatricians see a rather selected sample of patients who have been filtered out, as it were. We do not get asked for advice on very minor problems very often. That is done by other people. So we probably see a rather selected ….. Not probably, we do see a selected sub group. That is important in relation to the causes of nose bleeds and Mr Clark certainly has taken me to task for not taking that into account and I have covered that in one of my reports.
The answer is that the response to a nose bleed will probably depend on who deals with it, as to whether it is a GP or whether it is an A & E department and whether it is an A & E department in my hospital which only sees children because we have the only paediatric A & E department in the north west or whether it is a general A & E department. So the response would vary but I would think, I would hope that the doctor would engage the brain and would take a history and would examine the patient and would think “What are the possible causes? What could be wrong? Is there a history of the child having a cold? Is there a history of any trauma or an accident? Could there be a foreign body up the nose? Could there be some other sort of infection? Is there a discharge coming from the nose suggesting either an infection or a foreign body?” One would hope that doctors would think about these things. One would hope that they would think about a clotting problem. Certainly I would hope that they would think to themselves, “Could there be a blood clotting problem? Let’s have a look for bruises. Let’s ask if there is a history of bleeding in the past”. You would be going through all those processes.
You would examine the patient to look for evidence of some other underlying medical disease and then you would do some tests if you thought they were necessary. For example, if you were worried about blood clotting then you would take some blood and you would ask the haematology laboratory to look for blood clotting factors. So that is the kind of ----
Q I understand that, but I think to some extent what I am trying to get at is how likely is it that in the absence of anything else such a presentation would actually lead to a diagnosis of child abuse?
A It would be very unusual. I have never had a phone call when I have been on call from the A & E department to say, “We have got a baby in the A & E department which has got a nose bleed and we think it is suffocation”. I have never seen that. Obviously you have to consider that as a cause but that has never happened to me.
Q The other question, and you must understand that although we have had a lot of documents presented to us it has not been possible to look at them in more than a cursory fashion, if I can use the phrase that you do not like of ALTEs because it is simple, what I am asking myself, because if I understand the control population that was in Professor Southall’s study, then there are a lot of other causes of ALTEs other than child abuse and suffocation. What do we know about the occurrence of nose bleeds in relation to them?
A The other causes by and large you would not expect to cause a nose bleed. So, for example, if you had a baby ----
Q Except that if crude attempts at resuscitation etc. were initiated then they themselves might result in some form of trauma. I wonder, has the study ever been done?
A No.
Q Because as far as I can tell, and Professor Southall will correct me later on, they did not have this additional data in relation to their control population.
A That sort of study has not been done and, of course, the real problem with all the data that we have in relation to child abuse is that the vital research studies that we need will never be done where we deliberately do things to children to see what forces cause what and we deliberately harm children to find out exactly what causes what. It is never going to be done.
Q I just wondered if there were sufficient observational cohorts to enable some sort of data such as this to have been collected.
A There is a lot of data on ALTEs. There have been a lot of studies. I have got quite a collection of literature on the subject and there is a lot of information about all the possible causes and the degree to which other conditions can cause a baby to behave in that way so there is a lot of research on ALTEs. I do not know whether that helps you, that answer.
Q No. I mean, there is this tantalising question as ever in this. If you look at one population but you do not have the same information about the control population and you are always unsure about what is caused and what is not caused ----
A I can only say I think you have put your finger on a difficulty in this area in general that we do not have good enough data on the link between blood coming from the nose or the mouth and suffocation. We know it is a concern, we know it can happen, I have seen it happen, but to what extent it applies and to what extent other things cause nose bleeding we do not have good data on.
THE CHAIRMAN: Well, thank you for that. I have no other questions.
Mr Tyson, are you wishing to come back?
Further questioned by MR TYSON:
Q You were asked by the Chairman just now about what you would hope a Casualty Officer would do if he was given a nose bleed, and you say that you would hope that he would engage the brain, take a history and examine the child. Did Professor Southall have an opportunity either of taking a history or of examining the child before he made his diagnosis in this case?
A No.
THE CHAIRMAN: Mr Coonan?
MR COONAN: No, thank you, sir.
THE CHAIRMAN: Professor David, I think we probably have come to the end of your evidence before the Committee and I would like to thank you for sharing that with us.
(The witness withdrew)
MR TYSON: Sir, that is the case for the Complainants.
THE CHAIRMAN: Right, okay.
I am just wondering, given that we attempted to start at half past 1, whether it might be suitable to take a break now and then allow you to start and run right through to 5 o'clock?
MR COONAN: Yes, of course. I am entirely in your hands.
THE CHAIRMAN: It just might be neater than starting in and then stopping after 20 or 30 minutes.
MR COONAN: Yes.
THE CHAIRMAN: So, why do we not take a 20 minute break now and start again at 25 past 3 and then we will run through until 5 o'clock.
(The Committee adjourned for a short time)
THE CHAIRMAN: Mr Coonan, I think we are probably ready to start now.
MR COONAN: Thank you, sir. I will call Professor Southall to give evidence.
DAVID PATRICK SOUTHALL Sworn
Examined by MR COONAN:
Q Professor Southall, can you give the Committee your full name please?
A David Patrick Southall.
Q Now, next to you there should be Bundle C1. Could I ask you to open that and look at Page 121, please, where you will find your CV. The CV in fact is dated 1 November 2001, this being and I think I can lead on this disclosed at a much earlier stage in the proceedings, is that right?
A That is correct.
Q Now can I take you to the second page where your titles are set out: Professor of Paediatrics and Honorary Director of Child Advocacy International. Could I ask you about your Professorship. We heard a little evidence from Dr Chipping about that. Can you help the Committee as to how the system worked of having a hospital appointment as opposed to an academic appointment? How did it work at that time? Indeed, how does it work now?
A Yes. I am a Consultant Paediatrician at the University Hospital of North Staffordshire, but I am also an Honorary Professor of Paediatrics at the University of Keele, which initially was a Postgraduate Medical Centre and is now a full Medical School.
Q And
THE CHAIRMAN: I am sorry to interrupt, but could I ask you to pull the microphone towards you and try and speak up as much as possible?
THE WITNESS: I am sorry, yes.
THE CHAIRMAN: It is a little indistinct just now at this end.
THE WITNESS: Okay, thank you. Yes.
MR COONAN: (To the Witness) Child Advocacy International, what is that?
A It is a Registered Charity Humanitarian Aid Organisation involved in international child health issues abroad.
Q And you are an Honorary Director of that. Where is it based?
A It is based in Newcastle under Lyme.
Q Right, thank you. And we set out, or you set out, your professional address and your formal qualifications. Can we just look at those, please? In April 1997 you became a Fellow of the Royal College of Paediatrics and Child Health. Now, so far as the FRCP is concerned has that undergone a change?
A Yes, I am no longer registered as FRCP because some of us who entered FRCPCH decided that it was not necessary and I was one of them.
Q Right. And in December 1998 you were awarded the Order of the British Empire, the OBE, is that right?
A Yes, that is right.
Q And in a word or two, help the Committee about your activities in Bosnia please?
A I worked for UNICEF between 1993 and 1995, in Mostar and Bihac, looking after mostly mothers and children in refugee camps.
Q Yes. Now if we turn the page to your career steps, Page 123, we see that in 1998 you became a Consultant Paediatrician at the Royal Brompton, is that right?
A (No reply)
Q 1988?
A 1988, yes.
Q Yes. And then later Foundation Professor of Paediatrics at the University of Keele in 1992?
A Yes, that is correct.
Q And you remain in that post today, is that correct?
A Yes.
Q Moving on to Page 124, you set out a number of particular activities. You have mentioned your activities in Bosnia Herzegovina and you gave evidence at the Clothier Inquiry, is that right?
A Yes, I did.
Q And we see there and I do not take you through the detail because the Committee can see it immediately apparent "Research Grants and Contracts", and then perhaps more particularly relevant is "Summary of Research Undertaken" at Page 125. Now, you have listed about 41 particular topics of research and I am just going to highlight Item 6 and can you just make a mark on the document just to mark it as we go through? 6, 15, 18, 28, 32 and 41, and are those falling within the general group of research projects of some interest to the topics that the Committee is concerned with in this inquiry?
A Yes, they are. Yes.
Q And then at Page 128 you list papers published up until the date of this CV in peer reviewed journals. You have published a significant number of papers 127 some of which you were the primary author and others not, and then there is also papers published in other journals, chapters in books at Page 135 and so on?
A Yes.
Q I draw particular attention to No. 115 on Page 133, and is that the paper that we shall look at in a minute that we have been discussing most particularly this afternoon?
A Yes, it is.
Q Can I ask you now just in general terms, Professor Southall, about your work whilst you have been a Consultant in Staffordshire. Did it fall into particular categories?
A Yes, it did.
Q Can you just say one or two words about your research work?
A Up until about 1986, the biggest group of research projects involved trying to understand the mechanisms responsible for sudden infant deaths. Then, by chance, we identified that life threatening child abuse was one mechanism. We developed that over the course of the next eight years and that ended up with the paper you highlighted a moment ago. I was also involved in other research to do with non invasive ventilatory support, and also looking at mechanisms responsible for airway obstruction in infants and young children natural mechanisms. Not smothering, but natural medical problems.
Q What about what has been called child protection work?
A Yes.
Q And I am asking now about your clinical practice?
A As with all Consultant Paediatricians responsible for acute hospital paediatric work, inevitably part of your work involves in every case looking at a presenting problem. Most of them of course are medical problems natural ones but regularly, unfortunately, some of them are abusive and you have to deal with that as a Paediatrician and the systems involved for dealing with that have got more and more better over the years. But I was involved in acute sector paediatric child protection work as soon as I became a Consultant Paediatrician, although when I became more involved in Paediatric Intensive Care it was less common to be involved although some cases still presented as critically ill children.
Q Now thus far in terms of your clinical practice you have been talking about your NHS duties, is that right?
A Yes.
Q If we could just pause for a minute and just look at the work outside the NHS, did you get involved in child protection work in that sense?
A Yes. After 1986, when we had started to undertake covert video surveillance and become involved in life threatening child abuse, gradually the team I am involved with (that is myself and another Consultant Paediatrician particularly) was asked to comment on cases of severe usually severe abuse referred to us by either Social Services or the Police for second opinions or first opinions; opinions which sometimes ended up in the Family Court and sometimes in the Criminal Court and which you outlined early in this hearing as Category II work.
Q So, Category II we had a definition of that from Dr Chipping?
A Yes.
Q Do you broadly agree with what she said?
A Oh, yes. Yes, that is correct.
Q And did you in fact go to Court and give evidence in the Family Courts and the Criminal Courts?
A Yes, I did.
Q I will come back to the employment position later on, but it may be convenient now just to look at the piece of research that has come under the microscope in this hearing. If you would now look, please, at C4 at Page 318?
A Yes.
Q Now, if you would just formally identify it, is this the No. 115 that we saw in that list of publications?
A Yes, it is.
Q Right. And you are the primary author of this paper, is that right?
A Yes.
Q And I am not, Professor Southall I am not going to take you through the whole of this document. I am just going to deal with those matters which appear at the moment to be relevant to the Committee's deliberations. Now it may be helpful if you set out, briefly and clearly, what the purpose of this study was?
A It was to firstly examine the nature of infants and young children presenting with apparent life threatening events to two hospitals, looking at two groups. The first group were babies in which after a lot of investigations were thought to probably or possibly be suffering from smothering, and a group of patients who as a result of the preliminary investigations were definitely not suffering from smothering but from some defined natural medical disorder; in this case either respiratory breathing origin or epileptic origin.
Q Once the referrals had taken place, then what happened?
A In all cases, both, if you like, the smothering active group and the natural disease control group, analysis undertaken of all the medical records on each case, both at the referring hospital and at the hospital at which we were based, information from social services, if there was any, was looked at. Any child protection case conferences that had already been was looked at. Then each of these children, because they were having more than one event, had either had more or were suspected of having more, were subject to recordings involving non-invasive sensors on the baby to record breathing, heartbeat activity, oxygen levels and so on to try and find out what was going on, what the cause of these events was. As a result of that, a group of normal or natural causes was identified in 46 patients. In the other group that we identified there were abnormalities on the recordings in many but not all cases suggesting acute airway obstruction, that is a possibility of smothering. Then the two groups were treated differently from that point on, because the group where there was a suspicion of smothering or other issues – there are one or two different cases in there – were subject to cover video surveillance.
Q The results of the video surveillance we know are set out in a table which we can look at at page 327, which we can come to in a minute. I want to introduce now the concept of bleeding and the association of bleeding and apparent life-threatening event. Can you help us with how that fits into that which you have been describing so far?
A It became apparent as the histories were unfolding in these cases that a proportion of the considered to be due to smothering had a history with their apparent life-threatening event, not always, but some of them, of bleeding from the nose, from the mouth or from both as part of the history that we took at the time coincidental with the apparent life-threatening event.
Q The results which were obtained after observation you describe in summary form. We can look at them in tabular form. What did you derive as a proposition that the Committee can work with from this study?
A We compared the cases of smothering, of which we considered there to be 38, with the 46 cases that we considered from our analysis of the physiological recordings to be natural medical disorders, respiratory of epileptic. We analysed a number of things between the two groups to see what might be helpful in helping other people who did not have covert video surveillance who were faced with babies suffering apparent life-threatening event to decide which was more likely, a medical cause, natural medical cause or an abusive cause. The results of this are available in the paper.
Q Does the table at page 327 assist with that?
A I think the best place is page 321. On the right hand panel at the top, about halfway down that first paragraph.
Q Can you pick it up at the fifth line down and read that out?
A It says,
“However, in 9 of the 30 cases of documented suffocation and n 2 other cases (24 and 37), bleeding from the nose or mouth had been reported after ALTE that occurred before CVS was implemented. This was in contrast to the fact that none of the 46 control patients had bleeding from the nose or mouth in association with their ALTE (P less than or equal to .0001; x2 test).
Do you want the next bit?
Q Let us just pause there for a minute. That is on the basis of the summary of the data that you have been talking about thus far?
A Yes.
Q Therefore, what do you derive, if we can deconstruct this, from those results?
A Bearing always the limitations of retrospective data, but only bearing that in mind, it appears from this that we have a specific marker for intentional suffocation, specific in the sense that it is statistically highly unlikely from this that if you have a baby with an apparent life-threatening event and bleeding that this is due to a natural cause. The other way does not apply, but this way it does.
Q Go back two pages to 319 and the text on the right which I drew Professor David’s attention to this morning. In the second sub-paragraph there the summary of what you have been saying is repeated. Is that right, summarising the referrals?
A The summary of the referrals, yes.
Q Towards the end of that paragraph you say,
“There was almost certainly a bias towards referrals of patients with ALTE and suspicions of abuse. Therefore these figures cannot provide a true epidemiologic indication of the frequency of intentional suffocation as a mechanism for ALTE.”
Does that caveat there in any way damage the proposition that you have been laying before the Committee?
A No, because we now have a control group.
Q You go on in the next but one paragraph,
“Data on the 38 children and their families who presented with ALTE and underwent CVS were compared with those on all 46 children referred to our unit during the same time period who had 1) also suffered recurrent ALTE and received CPR and 2) undergone a physiologic recording that confirmed during a subsequent event that their ALTE was attributable to a natural cause.”
Again, standing back, the summary of a result that you have derived from this, Professor Southall, was what?
A That basically if you have a baby who presents with an ALTE and bleeding from the nose and/or mouth, then you have to think extremely highly of intentional suffocation as a mechanism, providing that all other medical causes have been ruled out.
Q I am going to pause for a minute, leave the paper to one side and just introduce clinical considerations, because it may be convenient to do so. The Chairman asked Professor David about half an hour or forty minutes ago about the presentation of a young infant who had a nose bleed in the A and E Department and was seen by a paediatrician. We are aware of Professor David’s response. It may be convenient to seek your response to the same question. What do you say about that?
A I would want to know, as did Professor David, other aspects of the history, but in particular whether there was an apparent life-threatening event with this. If there was an apparent life-threatening event with the bleeding from the nose of this baby I would be very, very concerned about child abuse, but before getting involved in that would want to be certain that there was not a medical cause such as a blood clotting abnormality. That presentation would be a very serious presentation, a baby presenting in the way described would be taken very seriously. Infections, colds and this kind of thing do not, in my experience – and that is experience as an acute clinical paediatrician but also as an expert on ALTE – that would not apply.
Q Acute life threatening event, of course, requires a little scrutiny…
MR TYSON: Apparent life-threatening event.
MR COONAN: I am sorry. Apparent life-threatening event requires a little scrutiny by way of definition. It may be that we could look at that at page 118 of C4. This is the Pitetti paper and I will take you to the right hand column and the second paragraph. Is that a definition that we see there that meets with your approval?
A Yes, it is. I was actually at that meeting. I was part of the Consensus Development Conference that helped to define ALTE in this way. I am not saying it is perfect and I understand Professor David’s views about this, but this is a Consensus Development document, so that a lot of paediatricians from different countries helped to formulate this definition, so it is a definition that I think is reasonable to be used.
Q If we turn on to page 142, to an earlier paper at the bottom left hand corner, where you were associated with this work, did you in effect adopt and apply the consensus definition?
A Yes, we did, although it is also true to say – and I think I must make this point – that we were also looking at the severe end of the spectrum, that is requiring or receiving cardio-pulmonary resuscitation in this paper and in the previous paper that we discussed earlier.
Q Professor Southall, I am going to take you, against that background, to a particular issue which arises in the course of the inquiry. If you take C1 and look at page 44, point 2 at the top of the page, the second sentence,
“ALTEs which are accompanied by nasal or oral bleeding are due to intentional suffocation according to our research.”
Professor David has subjected that to some criticism. What do you say about that?
A I was referring to my work, as in paediatrics, so that if you have a baby an apparent life-threatening event and nasal or oral bleeding and you have ruled out the natural medical causes, clotting problems, that intentional suffocation is likely to be the cause.
Q You state at C1 and look at Professor David’s report at page 56. It is just helpful to look at it as a potential summary of your data. Paragraph 14.1 down to paragraph 14.6 I ask you to look at particularly. Is that an accurate summary of the data?
A Yes, it is.
Q Attention was drawn to the fact that in three of the nine cases, and I am now looking at paragraph 14.4, there was bleeding from the nose alone. In one of the cases in 14.5 there was bleeding from the nose alone?
A I am sorry, I do not know whether other people have got this, but under 14.4…
Q Yes. I am referring to the evidence which was given?
A I am sorry, not what is written.
Q And that in effect is derived from the data in the paper?
A Yes, it is.
Q Can you deal with the point which has arisen about the fact that the data demonstrates that there were three cases with bleeding from the nose alone in the summary of 14.4 and one case from the nose alone in 14.5. What is the Committee to do with that distinction? Does it matter?
A No, not in my opinion.
Q Can you explain that?
A If we are talking about smothering, then the mechanisms that are likely to lead to the bleeding cannot be precisely defined but are likely to be two fold, either local trauma or blood coming up from the lungs. I do not think anybody knows for certain which of the two it is. The mouth and the nose in the baby are both able to be involved in breathing and, therefore, if you are smothering a baby you are going to be occluding both, otherwise it will not work. If it is local trauma that is causing it you could have blood coming from either, depending on where you press and with what you press. We have seen all manner of techniques used in the study. If it is coming from the lungs, the blood, then again, depending on perhaps position, perhaps factors we do not understand, it could come out of either the mouth, the nose or both. So in terms of smothering, patho-physiology terms in the pathology terminology, it does not matter in my opinion whether it is mouth, nose or both.
Q It may be said that even if you take 14.4 and 14.5 as stated; in other words, a total of 11 cases ----
A Yes.
Q That that is a small group from which to draw a conclusion.
A Yes.
Q What do you say about that?
A If you did not have a control group I think you would be in more difficulty, because the caveat on the origin of the cases would be a problem, but here we are with a control group of natural medical disorders presenting in the same way to the same investigation level and I think that was a question earlier, did those babies in the control group have the same investigations, both of the history taking and all that stuff. The answer is yes. Of course, there were not any child protection reports in them, but we had the other kind of information that we needed.
If you look at those two, the two groups, the statisticians who helped us with this, and we were really careful with this, because of the implications of what we were saying, pointed out that the likelihood of this occurring by chance was extremely low and, therefore, although they are small numbers, because of the control group we are able to make a statement, albeit it needs testing by other people (that is the same with all research), that bleeding from the nose and/or mouth in a baby with an apparent life threatening event is specific for intentional suffocation.
Q Apart from the data in your study, can you draw on and, in particular, did you draw on as a backdrop to your report any other material which bears on this issue, this specific issue?
A Yes, I did.
Q Which was what?
A Two sources of information. The first came from the category 2 work that I described to you earlier where cases of serious abuse were referred to us for opinion, expert opinion, and amongst them were a group of babies with apparent life threatening events where, it was considered by either the family court or the criminal court or both, that this was intentional suffocation. So as part of the audit that you do clinically all the time when you are doing this work, I was aware of other cases with bleeding from the nose and/or mouth in that group and I drew on that experience or would draw on my experience with any new case that came along.
Q I think for the purposes of these proceedings you have drawn up a schedule of this material but with names deleted for obvious reasons and, therefore, suitably anonymised, is that right?
A Yes, I have, yes.
Q There is another document which we can identify at the same time, but you had better receive the clip as a whole. Can you just, first of all, identify it. (Same handed). Is that the document headed “Table 1”?
A Yes, it is.
Q I think, just to identify it, there is a table 2 and a third single page document.
A Yes.
MR COONAN: Sir, might that be produced and given the identifying number?
THE CHAIRMAN: I think we are up to D2. (Same handed)
MR COONAN: If we can just look at table 1, please, -----
MR TYSON: Before this witness looks at table 1, because my copy has been given for photocopying for other people, perhaps we could just have a photocopy also so I can also look at table 1.
MR COONAN: I am so sorry. (Pause) (Same handed) I think we have found another copy and we can press on. (To the witness): Professor Southall, can we look at table 1, please. This is the schedule of category 2 cases. Are they all exclusively category 2 cases in table 1?
A Yes.
Q Can you just identify whether or not all of these, which total 23, bear on the point that you have been making or is it some of them?
A They are slightly different in one respect and that is that some of them died subsequently and some of them did not. So if you take the third column you have got some of them who died and some did not, but in other respects it bears completely on what we have been talking about.
Q I am going to keep my examination of you in relation to this schedule to a minimum but can you just help the Committee in this way? Take us to an example of your choice to illustrate the point that you are making.
A Why not no. 4.
Q Right.
A So if you look there are a number of ALTE here, 4, followed by death. In the first ALTE there was nose bleeding and in the cot (that means blood in the cot) aged two weeks. Mouth bleeding aged seven months, on the pillow (so, as Professor David mentioned earlier, sometimes you cannot be sure where it has come from) eight months. Mouth, 10 months. This time there is something else though with this case.
Q So we are principally looking at columns 1 and 2 for the apparent temporal association between bleeding and ALTE, is that right?
A Yes, they occur together, yes.
Q That is drawn from your records. Is this a document which has been published?
A No, it has not been published.
Q Apart from category 2 work, what about general literature that is available in support of the association between ALTE caused by suffocation and bleeding? Is there a body of literature?
A Yes, there is.
Q Again, for the purposes of this hearing, have you scheduled the relevant literature in table 2?
A I have, yes.
Q We see the introduction to that at the top of the page with a summary of what you consider to be the relevant highlights of that literature, is that right?
A Yes.
Q So it is not thought this is just, as it were, hanging in mid air, was this material which you were aware of at the time when you became involved in the Clark case?
A Yes, although at the end of the table on page 11 there are reports that were published after my statement so I have kept them separate. So everything above that, from the beginning to that point, is information I was aware of when I was involved in this case.
Q In particular, on page 11 we see a paper by Truman.
A Yes.
Q Submitted to the journal Paediatrics on May 18 1998 and reviewed by you.
A Yes.
Q Again, I am not going to take you through the whole of that text, but was it supportive of the data that you had derived from your study?
A It was supportive but all of these are case studies not case control studies, but it was supportive.
Q The third document in the clip, if we could just deal with it shortly, is this again a summary of the data from your paper in Paediatrics that we have been looking at earlier this afternoon?
A Yes.
Q In other words, it is another version of Professor David’s paragraph 14, is that right?
A It is, with some additions.
Q With some additions. There is one small typographic error, I suggest, in the middle of the page on the last line.
A Yes.
Q Do you see the phrase:
“patients, from the mouth in 4”?
Should that not be 3?
A Yes, that is correct, 3.
Q Perhaps I can invite the Committee to amend that to 3. It has already been done, I am told, although not on my copy. Professor Southall, the last matter I want to ask you about in relation to the general literature and your clinical knowledge and experience, is the association between suffocation as an ALTE and the onset of bleeding in time terms. We know that there is little or, if any, no dispute between you and Professor David on this. Would you like to say a word or two about it, please?
A Yes. Our clinical experience was that from talking to parents and nurses or doctors who had seen events, that the bleeding was at the same time.
Q At the same time as what?
A As the apparent life threatening event.
Q Right.
A However, it is also true that we did not publish that remark or a statement to that effect in the Paediatrics paper. That was partly because we assumed that people would read it and assume that they were together, you know, and I regret now because I think that this case has highlighted the importance of that potential time delay, but from our clinical experience I do not know of any patients where there was a delay between the smothering and the bleeding.
Q Can we just put to one side C4, please, and the learning of the subject and go back to events in the latter part of 1999. We know that at that time at the end of November you were suspended from practice by the hospital from the Trust.
A Yes, that is right.
Q You remained suspended from November 1999 until August 2001.
A Yes.
Q Dr Chipping has told the Committee something of the background events which led up to the suspension. Those are matters of history and the Committee, of course, are not directly concerned with those events, but can I for the sake of completeness just ask you, please, to summarise what the nature of those forces were that led to that suspension.
A From about 1993 our covert video surveillance work was becoming more and more known about by parents who had been involved in abusing their children and their relatives and there was developed some criticisms made by them and their advocates which continued for about six years. Then in 1999 an advocate for a group of parents approached the hospital and accused mostly myself, but also my colleague and other members of the Trust, of a number of very serious issues involving both personal conduct, child protection work and research.
This person was not a patient of the Trust but was an advocate, as I said, and there was one patient who had been involved with child protection proceedings as part of our trust work, hospital cue paediatric work. The complaints were made verbally and put into words by the Trust which can sometimes be the way it is done and it was I think accepted by the Trust that there was practically no evidence for any of them, but that they were very serious allegations which if any of them were true meant that we were doing some very bad things and, therefore, investigations had to go ahead.
Is this okay or is it too detailed?
Q I will stop you if you are going on too long.
A If it is too detailed, tell me. The personal conduct issues were examined first and involved such issues as using resources in the hospital for the charity work (for example, financial resources) and so on and then in October 1999 the Personal Conduct Group reported that there was no evidence for any of the allegations.
But ----
Q Perhaps I will just intervene, because obviously it is a very involved subject.
A Yes.
Q But the complaints were broken down into those three groups and the nature of the allegations the Committee have received in form, it is within the documents and I will not bother at this stage to take them to it, but that is an accurate summary of the nature of the allegations being made that the Committee have in their documents.
A Yes, it is.
Q After a very lengthy enquiry in respect of those three topics or categories, I think I can lead you on this, the Trust rejected those allegations and you were reinstated.
A Yes.
Q When you were suspended in November 1999 what was your understanding as to your position in relation to doing category 2 child protection work?
A That I should not accept any requests for it.
Q Right. Did you do any category 2 work after November 1999?
A No, I did not. I was asked to by a number of sources, abroad and in this country, but refused.
Q Did you in effect return category 2 work even before you were suspended?
A Did I return it?
Q Yes.
A Do you mean did I stop it?
Q Yes. Did you stop it?
A Yes.
Q Did you in effect say to the authorities in question, “I am sorry, I cannot do it”?
A Yes. Initially during the initial part of the investigation I was allowed to finish the cases I was already involved with, but then I was asked to stop them even if I was halfway through, which I did.
Q Right. And just by way of illustration we might care to turn up Page 8 of C1, which is a letter that we have looked at already, and can I just pick this up on Line 4:
"I have been advised by the Acting Medical Director ... to discontinue all of my child protection work, including category 2 protection work, until this inter agency inquiry has reported".
Can I just pause there. There is Category II protection work, and had the definition from Dr Chipping and you do not dispute that. What about Category I work?
A My understanding of that is that this is the kind of work that all Paediatricians in the acute sector and in the community sector deal with, which is where a child comes in with one particular problem, say bruising, and as a Paediatrician you have to decide whether it is due to a natural medical cause or an abusive cause.
Q Yes.
A That kind of work.
Q And is that NHS work?
A Yes, it is.
Q Yes. And this letter was written before your suspension?
A Yes.
Q Just for the sake of completeness, and we will come back to it in a minute, when you got in touch with the Police Officer, Mr Gibson, and subsequently when Mr Gardner Detective Inspector Gardner contacted you, were you at that stage doing child protection work?
A No.
Q Now, the Sally Clark case. The Sally Clark case clearly received an enormous amount of publicity, did it not?
A Yes, it did.
Q And did you become aware of that publicity at the time?
A I did.
Q Surrounding the trial?
A Yes.
Q And its conclusion. Quite apart from looking at, as we all did no doubt, the print media and the television and so forth, did you have any other sources of general information about the case and its aftermath?
A Yes.
Q What were they?
A There was a number of sources on the Internet.
Q Yes. Well, just help us about those?
A I think probably two main places I was observing that. One was the website it is actually American which is www.Msbp.com which is to do with Munchausen Syndrome by Proxy. There is a sort of discussion forum on there, very, very active, and there was lots of reports on there about the Sally Clark case.
Q Yes.
A And there was also a Website devoted to Sally Clark. I cannot remember whether it was Portia something, but I cannot remember the details. So, there were two major Internet sources.
Q Yes. Now did there come a time, then, when you watched the television programme which I think was screened on 27 April 2000?
A Yes.
Q And did you watch the programme live?
A I watched it live, but I also videoed it because I do that with most of the programmes that are relevant to the child protection work or international child health work. So, I have got an easy set-up to do that.
Q Yes. In your report and I will not bother to take you to the detail for the minute, but it has been highlighted already on Page 45 you said, "I was stunned when watching this television programme", all right?
A Yes.
Q That is Page 45?
A Yes.
Q Now, can we deal first of all with this in broad terms before going to the detail. What was it, in broad fundamental terms, that stunned you when you listened and watched the programme?
A I was aware from the programme and from other knowledge that there was discussion about the first baby, Christopher, before he had died and before there was any questions of abuse or other issues round that. When that baby was visiting London with the parents, and a family friend I think was there as well, the mother went with a friend shopping that was the key point leaving the father alone with the baby. And in his own words he described on that video what had happened, which I was watching the programme and then suddenly this happened and I was it is correct. I think that is a reasonable way of putting it. I was stunned to watch him describing the difficulty breathing; the choking; the bleeding; the resuscitation that he applied, which was the water over the face; and then no attempt to telephone 999 and an ambulance.
And that was the most striking issue, because for any parents of a baby of this age intelligent parents, first baby your baby stops breathing or has difficulty breathing, I am sorry. Not stops, has difficulty breathing, choking and is bleeding and you are really worried and you throw water over the face, I cannot think of any parents well, I can, but I will come to that in a minute. I cannot think of any normal parents who would not ring 999 and get an ambulance round there immediately because of the frightening nature of what was happening to their young baby. The parents who do not do that are the parents who have caused it and this is the same with all kinds of child abuse. A fractured leg in a baby, but nobody takes it to the hospital. It is the same principle. So, I think those two points were the most stunning.
And then there was some further information saying that there were some issues about whether a doctor had even been spoken to. Now this was only the video and that was commentary stuff, and so that is much softer compared with what Mr Clark was describing and what he did not describe which was the ambulance being called and the baby being taken to hospital.
Q Was part of your reaction to do with, or based on, or influenced by you choose your knowledge of the research you had carried out and your clinical experience when watching the television programme?
A Yes, absolutely. You cannot I could not ignore my experience and knowledge, but what was surprising to me was, "Well, surely this must have been addressed?" That was, you know, my feeling about it.
Q What in particular you felt should or would have been addressed? What in particular?
A Well, I was aware that subsequently this baby had gone on to die and that what's more another baby (a subsequent baby) had gone on to die, and that the mother not the father, but the mother had been convicted by a majority, which I knew, of what I also knew to be smothering had been the Prosecution case. So, I could not understand why is the father describing what to me sounded like not definitely at that point, but sounded like intentional suffocation and the mother was the one in prison?
Q So, were you concerned about that?
A Well, I also knew that there was another baby and that was the really important issue.
Q Child A?
A Child A, yes, because I knew from my research and clinical work that if you miss this diagnosis other babies in the family and children can die, or as equally important can end up with severe brain damage as a result of a lack of oxygen to the brain from suffocation. So, I became very worried as to why it was that Child A was being looked after by the person I saw describing what sounded to me like intentional suffocation.
Q Did you at that stage form the view that he was definitely the perpetrator of the abuse?
A No, no. I carried on watching the video, and then there were some other issues that were coming out which I also did not like the look of.
Q Well, can we identify those?
A I heard that the baby we are talking about, Christopher, when the baby died, was supposed to according to the video have blood in the lungs; both new and old. The first baby again, Christopher had what was described as a torn frenulum, which I knew can be torn during suffocation. I heard that the next baby who died had some petechial haemorrhages on the eye, again from the programme, which again from our paper had been not so strongly in any way, but had been linked with suffocation.
I heard that there had been some major problems with Mrs Clark in terms of her alcohol problem, which I knew from general medical knowledge but also from child protection work is associated with lack of awareness of what is going on around you. I was also aware from the video of concerns expressed over the timing of the taxi, or the timing of arrival home of Mr Clark, and allegations made in the video that he had dishonestly produced timing on this.
I heard and this is now softer that when the first baby died Mrs Clark seemingly could not open the front door of her house, or the door of her house, to let the ambulance men in, which seemed a bit unusual but, okay, there could be a good explanation for that. What else?
Q Well, perhaps I could just pause there. Some of the factors that you have drawn attention to are not what may be called direct paediatric issues?
A That is correct.
Q To what extent would you say that consideration of those non direct paediatric issues are relevant to you sitting in your living room as a Paediatrician with this particular expertise and knowledge?
A They are highly relevant but are not necessarily areas that as a Paediatrician you would investigate, but they are areas that you would want to know about. And, for example, it was mentioned that, well, why did I not interview Mr Clark in the course of my subsequent analysis, and I do not think it was appropriate for somebody like me to interview somebody in that position. It should be done forensically by the very experienced Police in the proper circumstances. So, that is just an example of that.
Q Yes. But your initial reaction to the programme, was your reaction that of a Paediatrician or just somebody sitting in an armchair and thinking, "My goodness, what's going on?"? Do you see the point I am making?
A Yes.
Q What is your evidence on that?
A It was the reaction of somebody who had spent a large part of his clinical career and research work investigating this very problem. And I knew quite a lot about it I am not saying I knew everything, but I knew a lot and had done some of the key work in the area as shown by this publication we reviewed earlier. So, I was very concerned by what I was seeing.
Q Did you appreciate that her first appeal was coming up?
A I cannot remember that. I am not sure.
Q Now
A Yes, sorry. It was in the programme and so I probably did, but I cannot be sure.
Q Yes. Now the detail from the programme which is linked to your report we will look at in due course, but I have just asked you so far in broad terms about your reaction to it. Did you make contact with the Police the next day?
A I did.
Q And was that with I think it was Detective Constable Gibson at the Child Protection Unit in Staffordshire?
A Yes. Obviously, for years I have been working with this group. They knew about my suspension. I knew them. I knew they were very experienced and I wanted to know what to do. So, I rang up to say, "I am worried about what I have seen", and I gave them similar stuff to what you have just heard but said, "There might well be adequate explanations for all that I am seeing, but I am worried and what do I do?"
Q How worried were you at this stage?
A Very worried and concerned for this child who was in my view, if I was right, completely unprotected from what I mentioned earlier which could be either death or serious injury.
Q Right. Now I am going to try and keep this parallel, but I want to ask you now about your employment position as you start going through the chronology.
A Yes.
Q Did you tell Dr Chipping you were going to go to speak to Mr Gibson before you did?
A No, I did not.
Q Why did you not do that?
A I felt that this was not covered by the category 2 embargo. It was not category 2 work. At this stage I felt that it might not go any further. There may be very adequate explanations from the police as to why my hypothesis at this point was wrong. If that was the case, then there would be no further action and in my view there was no need for my employer to be informed of what I was doing at this stage.
Q If you turn on to page 18 in C1, do you see a memorandum compiled by Detective Inspector Gardner. We can see from the beginning of the second paragraph on page 18 that he and you met on Friday, 2 June in Leek, so just over a month had gone by?
A That is right.
Q Had you contacted Mr Gardner or had he contacted you?
A He contacted me.
Q Had you made any contact yourself with the Crown Prosecution Service?
A No. If you look at the memorandum halfway down you will see that Mr Gardner writes this,
“Southall confirmed that he had not had sight of evidential material used in the Clark case, nor had he attended the trial. He did, however, state that he had discussed the trial with a number of like minded experts, including Professor Sir Roy Meadow and Professor Mike Green.”
Then he notes your information that you had been looking at matters on the Internet. Between 27 April and 2 June had you spoken to Professor Sir Roy Meadow?
A I had.
Q Had you spoken to Professor Michael Green?
A I had.
Q Did you know that both of those had given evidence in the Sally Clark trial?
A That is why I spoke to them.
Q Why did you ring them up?
A Firstly, because I knew that what I had seen on the television programme was a television programme, but of course there was some direct evidence there and some reported by the journalist making the programme. First of all, I was concerned because I had heard nothing from the police. I believed in what I had seen. I was worried about the baby and so I was expecting fairly urgent contact and nothing happened. I thought maybe I should be a bit more pro-active. I knew that the two Professors were involved and so I contacted each of them. I had reviewed the video many times to try and work out what was going on and made notes in my mind about what was on the videos. I wanted to ask each of them, if they were willing to talk to me, some questions about what had been on the video.
I spoke to both of them, particularly Professor Green. I spent quite a lot of time talking to him in different ‘phone calls about my concerns and the questions I had of him as an expert in that case.
Q What I am concerned about when I ask you these next questions is your state of knowledge. Before you spoke to Mr Gardner on 2 June had your knowledge of the Sally Clark case increased between 27 April and 2 June?
A No.
Q As a result of speaking to Professor Green?
A It was after that, not before that. I had looked up all my papers. I had read again the 1997 paper and I had looked again and again at the video to try and understand what I was seeing. No, I had not got any further information.
Q Having spoken to Professor Green – I am concerned with him – did your knowledge about what I am calling in round terms the Sally Clark case improve and increase?
A A lot, yes.
Q Can you please help the Committee in your own words about what facts or factors you received?
A I think I will deal with the easy ones first. I received confirmation from him that the pathology on the first baby, Christopher, confirmed what had been in the video, that there was new and old blood in the lungs of Christopher at the post mortem. I am not a pathologist, so I could not do that anyway without reading a report of a pathologist, but he told me over the telephone basically that this was correct. He also told me that there was some damage to the frenulum in the mouth of the baby.
With regard to the second death, he confirmed what I had already heard on the video that there was a fractured rib. He told me a lot about the various problems between experts on the other issues. I really do not want to get into that because I do not have the knowledge. Then, to get to the most important issue of our discussions. I said to him, “I know that bleeding and ALTE are simultaneous and occur at the time of the suffocation, so why is Mr Clark at home with the baby? How come Mrs Clark is in gaol if she was not there when the baby had bleeding and difficulty breathing?”
Q In the hotel?
A In the hotel. He said Ah, that was because Professor Meadow predominantly, but backed up by others, had stated that there could be a delay between the suffocation and the bleeding and the event, the ALTE. So I said, “Where did that come from? Where has that piece of information arisen?” Professor Green said, “This was our understanding.” I said, “I am sorry, but it does not concur with all the work that we have done, both published and unpublished, and I am really now incredibly worried about this baby. Please can you do something about this”, because he agreed with me then. He also became very concerned. He was very shaken and he told me that he was going to talk to the leading Counsel for the prosecution and tell him what I was saying. He would also mention this to the Crown Prosecution Service. He rang me back to tell me that he had spoken to them.
Q Spoken to whom?
A He had spoken to them.
Q To whom in particular?
A I think it was leading Counsel, but I cannot remember now what happened after that with regard to our discussions. I just cannot remember. I have tried to think, but…
Q The important thing for my purposes at the moment is the facts or factors that Professor Green was able to tell you. You have gone through a series of them?
A Yes.
Q As far as you can remember at this stage of your evidence, were there any other facts or factors that Professor Green dealt with?
A There was actually the issue obviously of had all medical causes for the bleeding been ruled out, in particular, clotting disorders as best you can. He mentioned this idiopathic pulmonary haemosiderosis question and said that this had been raised by one expert, but had been rejected in the Court.
Q Rejected by whom?
A The other experts, both, I think, for the defence and the prosecution. He implied that it had been rejected by the Court itself. He himself said that as a pathologist he found no evidence in the slides to suggest this. He is not a clinician in the strictest terms, but he said he knew about this condition, as did I. It did not fit with a well baby before and a well baby afterwards. It just did not fit that situation.
Q Professor Green is, you say, a pathologist?
A Yes, and in particular he is an expert on lung haemorrhage, bleeding in to the lungs of babies and has done a lot of work on the relationship between bleeding in the lungs of babies and intentional suffocation.
Q Again, at this stage is there anything else that you recall Professor Green telling you about the facts?
A I would have to refer to notes, but I cannot think of anything else.
Q The memorandum that we see at page 18 and 19…
A I am sorry to interrupt. There was something that Professor Meadow told me, if I could just mention this. I did ask him about the petechial haemorrhages on the eyelid. He said that was the case. He confirmed that.
Q That they existed?
A Yes.
Q You now have a repository of information from these two witnesses at the trial?
A Yes.
Q And you meet with Mr Gardner?
A Yes.
Q The memorandum at pages 18 and 19, in broad terms, do they adequately capture what you were saying to him?
A Yes, but there are omissions.
Q There may be omissions in every memorandum, because they are not verbatim transcripts. I am only concerned with those which might be relevant. I am concerned with matters which Mr Gardner may have said to you?
A Yes.
Q Are there any matters of importance or relevance that Mr Gardner said to you which are not captured in this memorandum?
A Yes. Just like I had gone to Professor Green and Professor Meadow with in my head and probably written down, but I do not have anything now to show that they were written down, I went to him with some points that I needed… I wanted to tell him what I was concerned with, but I had some specific issues that I had to clear up in my mind. I wanted to inform him that this delay issue was not right.
Q Delay in what?
A The delay between suffocation and the bleeding and difficulty breathing. That was not right, but I also wanted to check that Mr Clark had not been at home or could not have been at home when Christopher died. I had heard from the video that the father was allegedly at a Christmas party. The most important thing I wanted to ask, and I assumed it was going to be correct, was that the police had thoroughly checked that Mr Clark had been at that restaurant all evening. Mr Gardner informed me that they had not done those checks. They had not spoken to other people at that party to check that he was there all the time. I asked him, “Why not, because surely…” He said, firstly, when Christopher died his death was initially put down to a lower respiratory tract infection, natural causes, and so at that stage there was no involvement, apart from the usual short lived attendance of the police. When the second baby died and there were these injuries, then he considered it was too late to go back and check the alibi. Also, he had experts telling him that there could be a delay between suffocation and bleeding and that therefore Mrs Clark was the one. Then I said to him, ”Okay. So you are saying that Mrs Clark was alone with the baby, but you are not sure.” There is some discussion here then, is there not, about my hypothesis on that point, which was that possibly he had come home. His wife was in an alcoholic state.
Q Page 19?
A Yes. I do not know, but I just put to him a scenario. His wife was unconscious. The baby was screaming. Could he have killed the baby and then gone back to the party? Had that been investigated? The answer was no. Then he said to me, “Of course, when the second baby died the mother was alone with the baby as well.” I said, “Actually I do not think that is necessarily correct.” I wanted to give him some of my experience on that issue, because in many cases of intentional suffocation the person doing it does it in such a way that they leave the baby suffocated, go away and then somebody else finds the baby ill, sometimes dead.”
So I said to Mr Gardner, because the two parents were there when the baby was alive, what if again Mrs Clark’s level of consciousness maybe is not that strong at times? Could he have suffocated the baby while she was asleep, put the baby in the baby bouncer, whatever, you know, the thing, gone downstairs and then called up to say, “I am bringing up a drink”, Sally wakes up, sees the baby slumped, whatever, in the thing and says, “Look”, you know ----- Now, I do not know, but I said to him you cannot say on this issue that Sally was alone with the baby when he died, because the onset could have been either of them. So those were the main ….. They are not the only issues that I went through with Detective Inspector Gardner but they were the ones that I wanted to clear up in my mind and he was unable to reassure me. That was the issue. He could not reassure me that this was possible.
Q Professor Southall, that deals with matters in effect or information that you were receiving from Mr Gardner.
A Mmm.
Q What was the strength of your belief or concern at the stage when you were with Mr Gardner or, indeed, at the end of your discussion with Mr Gardner, if there is a difference?
A There is a difference. I mean, when he came to see me, because he contacted me and came to see me, I had spoken to, you remember, Professor Green in detail and everything was really worrying now because I had no faith in that delay concept. So when I first spoke to Mr Gardner I was worried, very, very worried and then when he was not able to reassure me about the alibi for the first death, my concern was much higher.
Q If you look at page 19 you will see five lines up, and these are Mr Gardner’s words, reference to your “theory”.
A Mmm.
Q Then two lines further up a reference to “theorising”.
A Mmm.
Q Another three lines up, again his word, you coming up with a “theory”. Can you help the Committee, please? What was the status of your thoughts and concerns? Was it a theory on one extreme, was it hard certainty on the other extreme or was it somewhere in the middle? Can you help?
A It was very strong, I would say, you know, ….. In this field if you are going to allege that a father or a mother has suffocated their baby, if you are going to allege that, you have got to be pretty certain because it is such a serious allegation your evidence has got to be very strong before you make such an allegation. This was the whole basis of our covert video work, to try and get good evidence. I am afraid that everything that I had got now meant to me that I was extremely concerned and that in terms of my view of this case, of course I would want to see the information regarding the bleeding incident, not all the information about the deaths, because that could confuse the point I was trying to make. The point I was trying to make was surrounding the living baby having this event and that is where I was getting certain that Mr Clark, not Mrs Clark, must have done it.
Q So you used the phrase “getting certain” ----
A Yes.
Q And a few minutes ago “very strong”.
A Yes.
Q So, therefore, can you just help us more particularly? Is it beyond theory and theorising in accordance with Mr Gardner’s memo or not?
A Oh yes, it is a lot further than that memo is indicating.
MR COONAN: I note the time but perhaps with your leave, sir, I could just move on to two short points before leaving this.
THE CHAIRMAN: As long as they are short.
MR COONAN: Yes, they are short.
A I am sorry, I wonder if I could just say that there were a couple of other issues from Mr Gardner that are important actually, if you do not mind.
Q I think if they are short ----
A They are short.
Q Deal with those and I will comeback to the other matters tomorrow.
A I am sorry about that, but they are important ones. I did ask him whether or not there was evidence that Mr Clark had contacted the ambulance service. As I indicated earlier, that would be the natural thing to do, and he confirmed that did not happen. And I asked him if there was any evidence that he had spoken to a doctor about Christopher.
Q In the hotel?
A In the hotel and he again confirmed to me that there was no evidence that he had spoken to a doctor. I then asked him about the taxi timing issue which was in the video.
Q In relation to Harry?
A In relation to Harry and in relation to the time that Mr Clark was supposed to have got home and the allegation made in the video that he had fabricated the time and Mr Gardner confirmed with me that that issue on the video was correct. I just wanted to get across that those are two other issues that Mr Gardner confirmed to me.
MR COONAN: Sir, that may be a convenient moment.
THE CHAIRMAN: Yes. I would not want to run much beyond five. So we will stop now and start again at 9.30 in the morning. Professor Southall, you have heard me warn others that they are under oath and therefore they should not discuss their evidence until we meet again. Thank you.
(Adjourned until 9.30 tomorrow morning)