GENERAL MEDICAL COUNCIL
PROFESSIONAL CONDUCT COMMITTEE
On:
Monday, 14 June 2004
Held at:
St James’ Buildings
79 Oxford Street
Manchester M1 6FQ
Case of:
DAVID SOUTHALL MB BS 1971 Lond
(Day Six)
Committee Members:
Prof D McDevitt (Chairman)
Ms F Bremner
Mr S Gurjar
Ms C Langridge
Rev J Philpott
Mr D Mason (Legal Assessor)
--------------------------------------
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.
--------------------------------------
(Transcript of the shorthand notes of TranscribeUK
Tel No: 0208 614 5799)
--------------------------------------
INDEX
Page
SOUTHALL, David Patrick, Recalled
Cross-examination by MR TYSON (continued) 1
Re-examined by MR COONAN 41
Questioned by THE COMMITTEE 44
CLOSING SUBMISSION by MR TYSON 54
APPLICATION by MR COONAN to recall Professor Southall 74
REPLY by MR TYSON 74
LEGAL ADVICE 75
DETERMINATION 76
SOUTHALL, David Patrick, Re-sworn
Further examined by MR COONAN 76
CLOSING SUBMISSION by MR COONAN 78
----------------------------
THE CHAIRMAN: Good morning, everybody.
PROFESSOR DAVID PATRICK SOUTHALL, recalled
Cross-examination by MR TYSON (continued)
Q Professor, can I ask you to look at the bundle C1 at page 20, please? We see that is a letter form the Crown Prosecution Service to Cheshire County Council relating to the fact that Mr Gardner had spoken to you on, I think, the date we now know is 2 June?
A Yes.
Q And there is an address given there relating to you in the body of that letter. Can I ask you, did you give that address to Mr Gardner?
A I don’t remember.
Q It is the first time that your name and address has come out?
A Yes.
Q And it is not the address given for you in your Pediatrics article, is it?
A Can I…?
Q Yes, let us look at C4 at 318. Do you see the bottom left-hand corner where requests for reprints come from?
A Yes, I do.
Q And one can see from that that the address for reprints is the Academic Department of Paediatrics, City General Hospital, Stoke on Trent?
A Yes.
Q So they do not match there?
A No, they are not identical.
Q May I suggest to you that it follows as a matter of logic that that must have been the address that you gave to Detective Inspector Gardner?
A I do not agree with that. If you look at the whole of that bottom left-hand corner and you were distilling from it my address, you might want to put in the University of Keele and whilst I would not, because what that might lead to is post going to the University of Keele rather than to the hospital where my department is actually based
– my department is within the hospital grounds. If I put the University of Keele down, somebody might think of sending some post to the Department of Paediatrics at the University of Keele. Now, that does not exist. If it had been me – and I cannot say it is not because I cannot remember – but if it had been me I would not have left in the University of Keele there.
Q On the other hand, that telephone number is your hospital direct line, is it not?
A No. In fact, firstly, it is an incorrect telephone number. The code is 01782 – that is for Stoke. Then the number is 75444. The actual number of the hospital is 715444. My direct line is 552576, so it is completely different.
Q The hospital number is nearly right but it is one digit short?
A Yes, but it is not a direct line to my department.
Q Can we put it this way, that it seems overwhelmingly likely – this is when, as you said earlier, words to the effect that this is when you went public, as it were; you ceased to be an anonymous source?
A Yes.
Q Although I might join issue with that because you clearly told the Child Protection Unit who you were?
A Anybody who is an anonymous source going to the police over child abuse would have to give their name but, hopefully, they would believe that would be respected.
Q I do not want to take too long over this---
A No, I know what you mean.
Q You had told the detective inspector you were prepared to help in any way with the police and with any Social Services enquiries?
A Yes.
Q You gave the details of who you were, where you worked and how you could be contacted by telephone?
A Well, that is what I cannot remember. He must have had my home address. I am pretty sure of that. He contacted me – he probably had my mobile, but here he has used the hospital direct line number, with a mistake.
Q You see where one is getting to on this, it is why would you give to Detective Inspector Gardner your official name and address and telephone number if at that time you were suspended from all contact with the hospital?
A I agree.
Q Do you see my point?
A I see your point. I must say I was expecting any communication from Social Services to be through my home – that is what I would have expected. If that had happened there would not have been a delay either because, as you saw, there was a three or four week delay, was there not?
Q And this was the only contact, the address the Social Services had?
A By the look of it, yes.
Q Again, I repeat the question. Why would, if you were suspended, you have given those sort of details to Detective Inspector Gardner?
A I have just said, I do not remember doing that, I do not know whether I did or not but I doubt if I would have done. I suspect he got it from the paper, which I did give him. It is so long ago I cannot – and I do not want to tell anything wrong – but, you know, I would probably, I think, have expected communication to be with me at my home address.
Q Can we move on? Can we look very briefly at the notes of the meeting that you had with the social worker and the guardian, which we see at page 26? I think you said in evidence, and perhaps we can confirm it in relation to this meeting that, as it were, this was by now true child protection work going on and both the guardian and the social worker (I think it was), to use your expression, “needed to know everything”?
A Yes.
Q And it is right, is it not, that in fact they gave you no new information about the case, they were just merely listening to see what you had to say?
A They consolidated information. For example, over the bleeding – I mentioned that earlier – they confirmed to me that what I already had in my mind from the video, the discussions with Professor Green, the discussions with Detective Inspector Gardner, that there was no medical cause for the bleeding.
Q I have to suggest to you that you are not correct about that, professor. As we heard from Mr Mitchell, the only point that they raised with you was the question of the fatal flaw, as it were, in that his father was not there at the time of Christopher’s death. That was Mr Mitchell’s evidence?
A Yes, it was. I was actually quite surprised at that because I do not remember him emphasising to me at the time that he was aware of that issue being ruled out by the police. I just do not recall that, but that is again an issue of time.
Q Again, I am just laying down a marker. I have to suggest to you there was no information given to you about the blood at all to enable you, to use your expression, “consolidate your information”. Can we move on to the strategy meeting a few days later, which we see at page 29? Again, I think we dealt with this on Friday. If we look at the bottom of page 29 it is quite clear, is it not, that you are indicating to that strategy meeting what your sources of information were and those were the websites and the television programme?
A Prior to the video, yes. Prior to the video that was indeed the case, yes.
Q And you are not saying to them that you had acquired any information since the television programme?
A I do not know. I had seen Mr Gardner and I had spoken to Professor Green but I know that I did not mention Professor Green (as we discussed last week). They would have known and I am sure I would have mentioned that we talked – the police and I had talked about it – because that is exactly what happened.
Q But as recorded here, you just said you knew a little bit about the case. You said you had been observing the issues as they arose on the website, and you named two, and you were aware of a lot of hype about the television programme and therefore watched that?
A Yes.
Q And you are giving now to the Committee no other sources of information as they are recorded, are you?
A Prior to the video, no.
Q Or after the video?
A I would have to read through it all again to just check that point.
Q I would encourage you to read the bottom of page 29 and the top three lines of page 30 just to confirm that. (Pause) Or, indeed, any other aspects of the meeting, if you want to read through that?
A Where, at the top?
Q The bottom of page 29 and the top two lines of page 30 is where I consider you are telling that meeting what your sources of information were both before and after the television programme, but I do not want in any way to restrict you from gazing through any of the other bits of the minutes to see whether it came out at any other point, but that is merely my suggestion?
A Sure. I am just going through the rest just to see what you are saying. (Pause)
The bottom of page 31, the paragraph next to the bottom, beginning “Guy Mitchell”, this is to do with my consolidation of information because it says:
“Guy Mitchell asked Professor David whether he agreed with any other possible causes of bleeding from the nose and mouth other than suffocation. Professor David confirmed that Professor Southall had covered those sorts of cases, that is because of a medical condition, which there was no evidence that Christopher had. Professor Southall confirmed that if there was such a condition in respect his bleeding from other sites.”
Q I accept that that is there, Professor, but my question to you is do you accept that you told the meeting that your sources of information prior to that meeting were merely the websites and the television programme?
A Well---
Q I accept you acquired information during that meeting. You have just read out
a passage which shows that.
A Which is the point I was making about consolidating my views on the bleeding. Just finish reading this. (Pause) I mean, I cannot remember, this is such a long time ago, but, of course, what is written may or may not be complete. We cannot be sure of that obviously. But I am not saying that I know what is written because I cannot remember. But it is one thing to put down everything and miss things out, then you do not know whether they miss them out. There was certainly missing information in Detective Inspector Gardner's notes of the meeting.
Q We dealt with that last week in that you had to accept that you had no notes and these notes were almost contemporaneous?
A I accept that point; that they were.
Q I can I deal with one or two aspects arising out of that strategy meeting. Can I ask you to look at the about the fourth line down on page 30, and I will start on the third line:
“Professor Southall indicated that what he heard on the television programme suggested that the nosebleed did in fact take place as this was corroborated by a friend and given his work Professor Southall is aware that bleeding from the nose or mouth or both is a feature in a proportion of the cases of suffocation”?
A Yes.
Q That is a much less strong way of putting it, do you accept, than you did eventually in your report?
A Yes, it is, stronger than in my report--- my report is stronger than was recorded by somebody else here. Not by me.
Q Can we look also at page 32, and the last three lines of the penultimate paragraph:
“Patrick Wheeler asked whether IPH had been considered. Professor Southall felt he needed more evidence and would need to see the post mortem findings.”
A That is a bit in contradiction to the earlier paragraph where it says that Professor David agreed that there was no medical cause. I know that when you are writing notes sometimes you may not get them in the chronological order, so I do not know which way round this is, but from my perspective I had no real doubt about the IPH diagnosis or lack of.
Q You are there recorded as saying you needed two things, one, more evidence, and, two, to see the post mortem findings?
A That is what somebody else has written, yes.
Q Are you saying that is inaccurate?
A I do not know how the context is because if that was after what had already been said by Professor David who I knew had been the person who was putting forward that, that seems a bit out of kilter with what Professor David was saying and certainly was out of kilter with what I had heard from Professor Green and what I knew about IPH.
Q I have to suggest to you, Professor, that is an accurate note and it accurately sets out the two matters that you needed to have sight of before you could exclude IPH?
A I am not sure because I am not a pathologist and seeing the post mortem result would be, for me, not as good as speaking to the forensic pathologist who is an expert on bleeding into the lungs, that is Professor Green. So I accept it is written, I am not dying that and I am not criticising the writer. I am not sure of the syntax content of this with regard to my view.
Q Is this right, it was your understanding, as a result of you attending the first part of that meeting, it was your understanding or expectation, firstly, that you were going to have to going to be asked to write a report of some sort?
A Yes, that is right.
Q Secondly, to assist you writing that report you would be given access to some of the information which was in the control of the care court?
A Yes, and, as I said earlier about that, what I needed was information relating to the nose bleeding incident because it is that incident which is the one that is concerning me. Not the subsequent deaths which had already been ruled by a criminal court to have been, on a majority verdict, on the basis of smothering. So it was this incident on the bleeding
I wanted more information about. That is what I was after.
Q You cannot be particularly partial, can you? You cannot rely on a jury verdict to establish one aspect, but not on other aspects?
A My main contention was that Mr Clark had smothered Christopher but not fatally in the hotel. That was my main point and it was a logical sequence of that that, of course, the two babies had been killed, but what really mattered to me was information surrounding the nosebleeds.
Q Because medically, is this fair, you wanted to establish if the nosebleed incident was an ALTE?
A Everything already spoken by Mr Clark on the video had indicated to me that it fulfilled the definition of ALTE as defined by the NIH, what I was looking for was more forensic evidence, not strictly necessarily medical, and I think in child protection you do not just rely on medical evidence, in fact, in some instances the medical evidence is less important than other evidence. Which is why I was so keen to know whether Mr Clark's alibi had been proven by the police and when they told me it had not then that is what really worried me about the nosebleed incident.
Q The information that you were expecting and wanted was what you say at the top of page 32, is it not:
“Professor Southall indicated that he was prepared
to give his view once he had the full facts”,
and you clarify that you would be happy with the information about the nosebleed. That is what you wanted; you wanted, A, the full facts and, B, in particular information about the nosebleed.
A Yes. Full facts concerning the nosebleed would have been absolutely ideal.
Q The full facts would, of course, include medical material relating to the nosebleed as well?
A It would have been nice to have had a bit more information about but it was not, as I said in my response to Professor David, because that is the crucial issue, he was asking me whether he(sic) thought it was likely that any further information would come out which would negate my view and I indicated that in my opinion there would not be. That is the fact of the matter. I really did not think there would be having spoken to key people about my concerns, namely Professor Green and Detective Inspector Gardner in particular.
Q There came a time, as we see from the letter at page 32, which is the letter of request from the children's solicitor, can you just turn to that for a moment, page 35, here we can see, can we not, I think to use your expression, the terms of engagement?
A Yes.
Q We can see that at the second paragraph:
“Following representations made to the court it was agreed that Professor David would meet with yourself to enable Professor David to provide an addendum report”?
A Yes.
Q This would be on basis that in advance of any such meeting you outlined in writing the points of concern that you had?
A Yes.
Q It was clear from that letter, is it not, that you were not going to have access to the papers as you had anticipated?
A It was. But I think I probably also telephoned, I cannot remember for certain on this, so I do not want to be pedantic, I think I spoke to Mr Wheeler because I was concerned I was not going to have the papers because that was what I had been led to believe.
Q You were aware by now, of course, or were you, that the social worker and the guardian had some scepticism about your view because as you recall Mr Mitchell told us that you were challenged about how do you explain the fact that Mr Clark was not there when Christopher died?
A You see, I do not remember that. That is why I said to you a minute ago when he said that in his evidence I was quite surprised. I thought that he, like the social worker, was in the same position that I was; that they knew the police had not adequately investigated Mr Clark's alibi for when the first baby died.
Q Can I ask you to try at look at it from, as it were, the childcare professionals’ view this time. They had a scepticism about your theory?
A Yes.
Q They knew that you were suspended from a post from North Staffs?
A Yes, they knew.
Q You had written in terms to Mr Ash about that?
A Yes.
Q In that context, Professor, can you help us with this, why in that context did you tell the Committee earlier that it was completely inappropriate that the medical information was withheld from you?
A Sorry. Why was it -- why did I tell the Committee -- I am sorry, it is my fault that, not yours.
Q I asked you to look at it from their point of view. They were sceptical about your theory?
A Yes.
Q They knew you were suspended?
A Yes.
Q You told the Committee when you were answering questions from Mr Coonan that it was completely inappropriate that you were not given the medical papers. The question I am asking you in light of where they were coming from why was it completely inappropriate that you were not getting the papers?
A Because although I was suspended I had indicated to them, and I think it was known in the social work field that these were -- the basis of my suspension was not established, that the hospital were doing a preliminary inquiry to see whether there was a prima facie case against me or not. This was not something that I had been suspended over because there was a strong suspicion I had done wrong, it was because there was these quiet major allegations about what I was supposed to have done wrong. So I think there was sympathy from social services. I do not think that was a reason why they would have withheld papers from me, but I cannot say because I am not in their mind. You know what I mean?
Q I do. What they knew it is what you had told them, which is on page 25.
It is a letter to Mrs Ash from you on 23 July?
A Yes.
Q And can we just read through the second paragraph together:
"I must explain that I am currently suspended from my work at the North Staffordshire Hospital as a result of unsubstantiated allegations about my child protection work. A very detailed investigation into these allegations is currently underway and, of course, you should know that this is the case. Moreover, I have been asked by my hospital not to undertake any work in my capacity as a consultant paediatrician at the hospital. I am therefore only able to give advice on this case in my capacity as an individual, albeit one with considerable experience of life threatening abuse"?
A Yes, yes.
Q So, that is their state of knowledge as given by you?
A Yes, it is. Well, not completely. I think that there was a general most Social Workers and most people in Child Protection were aware of the circumstances surrounding my suspension. They were aware of my covert video surveillance work. They knew how much it had come under attack. And so I think they had more knowledge than was just in this paragraph, and I think the Guardian did more or less indicate that when he was talked to here in front of the Committee.
Q Well, the Committee will have to decide that. But as a result of your letter of instruction, which we see and we return to on Page 35, in a sense you were left with two options, were you not, Professor? One to decline to give any points of concern because you had no primary material?
A Yes.
Q Or secondly to give your points of concern, but set out the limitations; namely, that you had not seen any primary material? Those were two options, were they not?
A I still think I have to say that there is some primary material in the video and, you know, when you have Mr Clark standing there explaining what happened to his baby that is primary material in my view.
Q And do you accept of the two options that I have indicated were options
A Yes.
Q that you did neither of those options?
A Yes, because there was this further paragraph in the letter of instruction which to me meant, I thought, that things were that there was going to be some, what is the word? The fact that he was going to be present when I met Professor David meant to me, "Well, this is not unreasonable", you know, that he would sit there as the child's solicitor helping to sort of feel the way through the information. And I have to say that that is what I was expecting and that is what would have been the most appropriate because, as you know, I met alone with Professor David because Professor David wanted for some reason to meet me alone, and I must say I was not happy and it is probably at that point I should have said, "No", but I did not. And having met with Professor David alone I came away with a view that he fully supported my views and was not questioning my factual basis, but obviously he was and so ...
Q I am sorry, Professor, but let us just deal with the facts for a moment. You were asked to write and set out in this letter your points of concern prior to meeting Professor David?
A Yes. Yes, I was.
Q And so for you to have written your report as you did, without a caveat as you did, has got nothing whatsoever, has it, to deal with the terms of your meeting with Professor David, because that was as everyone knew going to take place after the report rather than before it?
A Yes, you are absolutely right, but the absence of the caveat in that position at that time was because it was known by everybody that I was not having access. So, to me it was a pointless exercise to put it in because the solicitor was telling me, "You are not going to have the papers", and everybody knew I was not. However, in retrospect I wish I had put a caveat in at that point because then that would have helped me. It would not have helped the case, but it would have helped me.
Q Yes, certainly. There is every likelihood that you would not be where you are now.
A I do not know.
Q Can we just move on to the report itself and that, we know, is at Page 42 through to 45?
A Yes.
Q And before I ask you questions about it, do you have the heads of charge with you?
A Yes.
Q Can we just read together head of charge 7. 7 says:
"On 30 August 2000 you produced a report on the Clark family at the request of Forshaws, solicitors
a. At the time that you produced your report you
i. did not have any access to the case papers, including any medical records, laboratory investigations, post mortem records, medical reports or x rays",
and you admitted that through your Counsel at the beginning of this hearing?
A I admitted it, but I have to say that it is only the case papers that were relevant to my contention when I wrote that report.
Q Yes.
A Because we have already indicated that the other things like medical records, laboratory investigations and post mortem records are not so relevant to what I am trying to get at.
Q Well, we will come on to that in a moment.
A Yes, sure.
Q But you also admitted, and forget the weight for a moment, that you "... had not interviewed either Stephen or Sally Clark"?
A And I do not think and even now that I agree with that, but I do not think that in any way it would have been appropriate for me to have interviewed either of those people about what happened. Not me. Somebody else, but certainly not me.
Q And you admitted (b) i., "Your report concluded that it was extremely likely if not certain that Mr Clark had suffocated Christopher in the hotel room"?
A Yes.
Q And would you agree with me that the word "certain" is a very strong word to use?
A Yes, it is a strong word and it is a word that represents the seriousness of the allegation that I was making.
Q And then at (ii) you admitted that "... you remained convinced the third child of the Clark family, Child A, was unsafe in the hands of Mr Clark"?
A Because that follows (i).
Q And, again, would you admit that the word "convinced" is another very strong word to use?
A Yes, I would. Yes.
Q Yes. And you admitted ©, "Your report implied that Mr Clark was responsible for the deaths of his two eldest children Christopher and Harry"?
A Yes, that is correct.
Q And you did not admit (d) which is, "Your report was thus based on a theory that you had about the case that you sought to present as scientific fact as underpinned by your own research"?
A No, that is not a correct description of what I did.
Q And I have asked you questions about that
A You have dealt with that.
Q and so we need not deal with that.
A No.
Q And (e), "Your report declared that its contents were true and may be used in a court of law whereas it contained matters the truth of which you could not have known or did not know", and that is an area which I have to explore with you in subsequent questioning because you did not admit the second part of that?
A No, I do not admit the second part of that.
Q No. And then you did admit (f), "Your report contained no caveat to the effect that its conclusions were based on very limited information about the case held by you", and you did admit (g), "When given the opportunity to place such a caveat in your report you declined, by faxed email dated 11 September 2000, on the basis that even without all the evidence being made available to you it was likely beyond reasonable doubt that Mr Clark was responsible for the deaths of his other two children"?
A It is just a small point, but there is a difference in the caveats. The first caveat in (f) relates to the fact that I had not received the information.
Q Yes?
A And that was well known by everybody involved. But the question that Professor David was asking was slightly different. His caveat related to whether there was any information that could change my view, or was likely to change my view, that I had not had sight of and that is a slightly different caveat.
Q Yes.
A So, that is the only small point I would make about that head of charge.
Q Yes. But whatever caveat you are putting on your caveat, you did admit (g)?
A Yes, I accept what you are saying.
Q And therefore it is in that context, of where as it were we are apart in terms of your admissions, that I have to ask you questions about this report. Can we first of all start by seeing if you can agree with me on this. That it is clearly written as a medical report?
A Yes, it says "Medical Report" at the top.
Q Yes.
A And I have already admitted that it would be better to have written "Points of Concern" and the word "preliminary". They are both things that I would have in retrospect wished I had written.
Q Yes, but in fact you did not?
A No.
Q And so it comes across as a medical report and, indeed, its basic layout is a basic layout of a classical medico-legal report, is it not?
A No, definitely not. I am used to writing
Q Well, let me put various propositions to you.
A Yes, but if I can just answer that though?
Q Yes?
A I am used to writing a lot of medical reports and when I start and, you know, it is freely available every medical report I start with, I start with all the information laid out in front as to what I based my report on. This was different. This was for somebody else to put a report into the Court. This was information for Professor David to put into the Court.
Q Yes.
A So, it is not my report direct.
Q Well, let us just pause there for a moment. This was a report which you anticipated of itself would go to a Court?
A Yes, that is correct.
Q Because we can see that by the declaration at the end?
A Yes, absolutely. Yes.
Q So, it is entitled "Medical Report" and it has at its end one of the standard declarations in reports in medico-legal reports going to courts?
A Yes, it does. Both of those issues.
Q And so the as it were detached observer, if I can put it this way
A Yes.
Q would consider that it was a medico-legal report for a court?
A But it is not characteristic in any way of the ones I put in. It is very different.
Q Well, let us see how characteristic of a classic medico-legal report it is. Firstly, you set out as it were your information which is on the first line, "On 27 April 2000 I observed a television program ..."?
A Yes, yes.
Q That is the source of your information?
A It is a history.
Q Yes.
A It is a history of what I
Q It is a history.
A It is a history.
Q And that is a classic way of starting any medico-legal report, is it not?
A No. No, I have just explained that
Q You set out the source of the information and the history?
A No, when I start a medico-legal report I start by giving my own background and then I outline all the material I have looked at.
Q Yes.
A That is how I do it.
Q Yes. Well, there you are. I suggest that you have done both that. Well you have not set out who you are, but you have set out what your source of information is and what the history is that you have derived from the sources of information?
A In this case the television programme is first, yes.
Q Yes. So, you have set out your source of information, the television programme?
A Yes.
Q And you have set out the history as derived from the television programme?
A Yes, that is correct.
Q Right. You then, having set out as it were the history, set out some comments arising out of the history that you have outlined?
A Yes.
Q And then you set out as well other issues arising out of the matter generally?
A Yes.
Q And then you have some conclusions?
A Yes.
Q And as a way of setting out a medico-legal report that is the classic way in which, with those headlines as it were, a medico-legal report is set out, is it not?
A Yes.
Q Yes. And, as we have seen, we see the classic declaration at the bottom in relation to medico-legal reports?
A Yes.
Q Yes. "I declare that the contents of this report are true and they may be used in a court of law"; the tag under the new rules which is required if this matter is going to be used in a court of law?
A Well, I was absolutely happy for it to be used by Professor David in the Court.
Q Because you made a deliberate choice, I have to suggest, Professor Southall, to go beyond what you were asked to do, just merely, as it were, jot down some points of concern, and to expand that into a full medico-legal report for the benefit of the Court?
A No, it is not a full medico-legal report. I have already explained to you that a full medico-legal report would have first the list of material that I have looked at and then, analysing each of those in turn, and then comments and then conclusion. So it is missing what I would normally have and what I had asked for and which was refused, which was the information that I was asking for.
Q You have agreed with me that the general layout of the report is as in any kind of medico-legal report?
A Except for the stuff at the beginning – that is the difference.
Q Except for, it does set out what your source of information is, namely “I observed a television programme”?
A It lays out once source only. But, if you remember, that is what the Court asked me to do. Did the judge not actually ask me that, on the basis of the television programme?
Q You know what you were asked to do because you were instructed by the solicitor?
A Nevertheless---
Q What I suggest to you is you went further than merely outline points of concern, as it were, on one sheet of A4; that you took it upon yourself to give a full-blown, as you have described it, medical report?
A I outlined all of my concerns and feelings and worries in this report, and you can call it a partial medico-legal report – that is fine---
Q I do call it a medical report because that is what you have headed it?
A I have accepted that.
Q And I do call it a medico-legal report in view of the standard layout and the declaration at the bottom?
A Yes, but I put in there all I was doing was doing my best to put across to Professor David what I was concerned about.
Q Can I please deal with some aspects arising out of the last line in that report, namely where you say “I declare that the contents of this report are true”?
A Yes.
Q As you will know, one of the accusations against you, i.e. in 7e, is that the report contained matters, the truth of which you could not have known or did not know?
A Yes.
Q And it is right, is it not, that from the television programme you could not have known the medical truth about the, or instance, petechial haemorrhages?
A In the television programme there was mention by the reporter; it was partially confirmed by Professor Berry in his own words, and was confirmed to me subsequently by Professor Meadow in a telephone conversation. Those three sequential things, to me
– I that that is as true as could be other than a photograph that I could look at, but I cannot think of anything else that would…. As I keep saying, although the petechial haemorrhages are an issue, the fact of the baby’s death had already been attributed to smothering by the Court. Important as it is, I think I had the facts given to me by those three---
Q But you would also need to see, for instance, the post mortem to decide whether as a fact there were petechial haemorrhages in this baby?
A I am not a pathologist and I would rely on what other pathologists have told me, or in this case Professor Meadow, who was there at the trial and who had debated all this material and he told me, as did Professor Berry, the pathologist, mention in the video.
Q It is a simple point---
A I know the point.
Q ---that I have to suggest to you that simply relying on a television programme and some telephone calls does not establish the truth of whether or not there were petechial haemorrhages in this particular case?
A I think that given the weight of that evidence to the case I was putting forward,
I think it was reasonable but it would have been nice to have had the post mortem report
– but it was refused, so what could I do? I either say nothing about it because it is not there; if Professor David had said to me when we met “Look, you have got all this but you don’t have the post mortem report and I am afraid without it your message is wrong”, then I would have said “Okay, then please can I have it? Please can you confirm it?” But he did not say that.
Q His terms of engagement were that he was not entitled to give you any information?
A It looks like those were his terms of engagement in his letter, not in the court.
Q You know the position as well as anybody else, do you not, that information bound up in court papers in a care case is not permitted to be shared with anybody without a court order?
A Yes, that is right.
MR COONAN: I was about to rise because the premise of the question does not reflect the evidence of Mr Wheeler. That is the only comment I make.
MR TYSON: Can we turn on to the torn frenulum which you discuss at page 44, at “Other issue 2”? Before we do that, I would just like to look at “Other issue 1”, which is “I note that there were two petechial haemorrhages”. I am suggesting that you were unable so to note properly without seeing the primary medical material that gave you that?
A I know that is what you were trying to say earlier and I tried to defend that by pointing out that---
Q And then you had at (ii) “I note the torn frenulum on Christopher”?
A Yes.
Q The same comment applies. You had no primary medical information about the fact of that torn frenulum, did you?
A Once again, it was like the other business. It was reported in the video by the reporter in this case, it was commented on by Dr Cowan, and then I spoke at length with Professor Green – not at length; I spoke to Professor Green about it.
Q We have already been through that. There is no indication from this document that you spoke to either Professor Meadow or Professor Green, is there?
A No, we have been through that.
Q We have been through that. Not only did you not know that there was in fact a torn frenulum from primary medical material, you also did not know as a medical fact about the reasons in the medical notes as to why that frenulum was in fact torn?
A I knew that Dr Cowan was raising the possibility in the video, in her own words, that it could be as a result of intubation and I know that it might appear that if you are purring a steel laryngoscope into the mouth that you might damage that. All I was saying here was that in my experience, and the literature as well, it is really extremely unusual, and I think that is fact – it is extremely unusual.
Q But where the complainants criticise you on this matter, Professor Southall, as you must know, first of all you are directly there criticising Dr Cowan, the paediatrician who was involved and who had primary medical experience with her eyes as to what the problem was, and here you are contradicting her view?
A I am just expressing my own. I am not criticising her. I have put “Contrary to the view expressed by” – that is different.
Q That is simply impermissible, is it not, professor, for you to seek to contradict the view of a paediatrician in a case when she was there and you have merely watched a television programme?
A And spoken to Professor Green. I do not think so, no, because---
Q You have watched a television programme and had a few telephone calls?
A All I was doing in that sentence was pointing out that it would be extremely unusual in my experience for the frenulum to be torn as a result of resuscitation. That is a fact, based on my experienced and based on the literature on frenulums.
Q Frenulums can be torn not by the instrument being inserted but the hands around the mouth as they are inserting the instrument; the damage is caused by the hands and not by the instrument itself?
A No. Not from my experience. I have had a lot of experience of intubating babies, so---
Q Secondly, would you accept as a matter of fact that if you are intubating a baby who in fact happens to be dead, is rigid, it is extremely likely that the frenulum can be torn in that process?
A Well, it would be very unusual to try and intubate a dead baby with rigor mortis
– very unusual. So therefore it is a very unusual situation. So I do not know how to comment on that.
Q But you are aware, are you not, through one of your own documents introduced in this case, that that was the evidence that was given, for instance, by Professor David in this case?
A Yes.
Q Can we just briefly look at D1 together and can we pick it up at page 12?
A Is this it?
Q No, D1 is the document your side introduced, which is the evidence given at the criminal trial by Professor David. I do not whether there is a clean copy of D1 which you could be given. (Same handed) This is the evidence given by Professor David at the criminal trial on, I think we were told, 29 October 1999. Can I take you, please, to page 12, and it is the question that led to the very long answer that is in the middle of the page – do you see that?
A I do, yes.
Q That reads:
“Q. Would you help us please on in your opinion, using your own expertise as a paediatrician, on how the split and bruise that I have described could possibly have come about? You were not there, you can give your opinion as an expert?
A. The most common cause of damage to the frenulum in children is an accidental fall. That can't be relevant to this baby, but it illustrates that the most common cause is trauma, impact trauma to the lip, both direct trauma and also probably pulling it up, a bit simple. That same kind of trauma can happen non-accidentally when a feeding bottle is rammed into a baby's mouth or baby is struck deliberately. The same thing. 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. Now, there has been one study which I've given details of in my report where babies who have died were resuscitated or attempts were made and in that study of 25 babies 9 had injuries to the area of the face as a result of attempts to resuscitate them, that is 36%. So, we know that in general that is a procedure that is quite likely to cause some sort of injury to the face. Now I have to say that that study did not actually document any cases of tears to the frenulum and there seems to be no data that I can think of or find about tears to the frenulum in dead children where there have been attempts to resuscitate but it's certainly something that can happen in living children and as was explained yesterday when a colleague was giving evidence, one can see quite considerable injuries including teeth being knocked out as a result of resuscitation.”
Is there anything in that answer that Professor David gave that you would challenge as a paediatrician?
A Yes, I would. It is not just a tear or split; there was a bruise. If the baby was already dead, as you have just implied, then it would be difficult for there to be a bruise. There could be a split, assuming, you know, what you are saying is correct, but not a bruise as well because a bruise requires circulation. So that is one point. The second point is that I know about frenulum problems because, of course, it is relevant to my work. My knowledge of the world literature on this and the screening of the world literature to me is similar to what Professor David is saying but probably a little bit more concise in saying that it does not happen; it has not been reported; there is no evidence base for resuscitation being linked to a torn frenulum.
Q If we go over the page to page 13, we see in the middle he is asked about a laryngoscope?
A Yes.
Q Do you see the question “The jury know what it looks like?”?
A I do, yes.
Q And do you see the answer:
“All right, but the point is that the laryngoscope itself doesn't go over that part and I think that if you get damage it's not so much caused by the laryngoscope as the hands of the operator trying to get the laryngoscope in place. You could do it with a laryngoscope but I think that's less likely.”
Do you challenge that as an answer?
A I do. I have a lot of experience in intubating babies and I cannot imagine any way in which I could damage the frenulum when placing a laryngoscope into a baby’s mouth, even if the baby was dead.
Q Can we just go to the penultimate question:
“Q. This jury probably doesn't know how easy or difficult it is to intubate a child in this condition?
A. Well, it was ----¬
Q. But you as a paediatrician can help us?
A. 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 Yes.
Q Just pausing there for a moment, that was medical information, the truth of which you did not know and could not have known at the time you wrote your report?
A This information I did not know because this transcript has only recently been made available.
Q And you did not know and could not have known about the medical material upon which Professor David was able to say that it was particularly difficult because the baby was stiff?
A No, I did not know that.
Q And could not have known that?
A No. But, as you can also see, it would not have made any difference – and that is the kind of reasoning behind why I replied to his e-mail. The fact is that whilst this is interesting it does not make any difference to the central opinion I was placing before the Family Court.
Q Save and except you have expressly highlighted it as another issue in paragraph 2 of our page 44 of C1?
A It is an issue but---
Q “I note the torn frenulum on Christopher”?
A It is an issue---
Q “Contrary to the view expressed by Dr Cowan”. So you note it, you criticise the paediatrician on the cases on the basis of material, as I suggest to you, you did not know and could not have known?
A I have already said I did not criticise Dr Cowan and I am not criticising her by what I write there. It is information which is important but not crucial or central to my contention that Mr Clark suffocated Christopher in the hotel room.
Q If it is not central and if you were only asked to write points of concern, why gratuitously do you put it in then?
A Because it is relevant. It could be relevant.
Q It could be relevant because you were writing, as I suggested, a medical report?
A Most babies who are suffocated do not have a torn frenulum. But some do.
A small proportion. So it is not essential for suffocation.
Q Can I deal with this finally by saying there is nothing in your research, report in paediatrics, there is nothing in that report, is there, that notes the association between torn frenulums and suffocation?
A That is exactly point I have just made. It is not a central issue to the question of intentional suffocation. But as Professor David has said, it could be that during one particular attempt at suffocation that the frenulum could be torn. It is in just the right place for that to happen if you are pressing hard over the upper lip.
Q But if you are not mentioning in your research article the association between the torn frenulum and abuse, how can you thereafter go on to say, under line two:
“It is most likely to have been the consequence
of abuse including intentional suffocation”,
if there is no research material cited by you in respect of that?
A Just because I have not cited research material does not mean there is not material about the link between frenulum injury and suffocation.
Q The link is not made in the article in paediatrics upon which you are relying as the foundation of your concerns in this area?
A It is not the only source of my relied on information, there are others including my experience with category two cases, where a number of which there was a torn frenulum, my experience in child protection in general where torn frenulum is quite a common issue.
Q Again, can we deal with your observation about fresh blood and old blood, where it is in the second bullet point on page 43. Where you said first death was initially attributed to a lower respiratory tract infection?
A Yes.
Q Can I make the same points in relation to that statement; again, you had no primary medical data to assist you with that?
A There is something different about this. What I am doing here, if you go back to page 42, is saying: “I noted the following from the programme.” Everything from there onwards is notes following the programme, up to the point of the word “Comment”. All that information, those bullet points are information that I noted from the programme. So all I am doing is factually reporting information that I noted from the programme in those bullet points. I am not trying to make out they are facts or anything else.
Q Save that in your comments, let us please turn to page 44, comment five?
A Yes. That is because I have confirmed with Professor Green the reality of the fresh blood which he said was quite extensive and I know what that means because I know of his work on bleeding into the lungs in babies who have probably been suffocated.
Q It reads:
“The fresh blood in Christopher’s lungs after death
would be typical of intentional suffocation.”
So you are assuming as a medical fact that there was fresh blood there?
A As result of talking to Professor Green. Not as a result of the programme.
That highlighted it as a possibility. I then checked it with Professor Green.
Q Again, I will make the same two points. First of all you did not disclose the involvement of Professor Green?
A Yes.
Q Secondly, even if you had, you did not see the primary medical data?
A Which was the report, the post mortem report. That is correct.
Q You were not aware, I suggest to you, as Professor David said that there was in fact considerable debate about fresh blood and old blood in the lungs and one expert in fact had to change his views in the course of the criminal investigation?
A I was aware of some debate but not a lot. Professor Green did talk to me about this, but not in very much detail, I accept.
Q My primary criticism, as you are aware, we have dealt with. As far as Harry’s injuries are concerned, again you set them out and I would suggest to you that, again, you did not know as a medical fact what the injuries reported on him were?
A Again, the same point applies to that as did the bleeding; I had discussed the situation with Professor Green.
Q Again, I make the same point?
A I know, yes.
Q Again, in relation to Harry being on a monitor, you did not know that from any other source than the television programme, I suggest?
A I think that was a bit more hard because did not the lady, I would have to check, did not the lady who was helping to look after the baby talk about that in the transcript and on the video? I am pretty sure she did. I would have to check, but think she did. Which would make it a bit harder than a report, well, it would make it a fact if she was saying it, because why should she not say if it is true?
Q That is an astonishing thing to say: “Why should she not say that if it was true”,
it happens in cases all the time; people say things that are not true, generally?
A Hang on, yes, generally, but what if you are employed to look after a baby because the previous baby in the family has died and you are talking on the television about
a monitor that you are using on the baby, why would she make that up?
Q All I am saying to you is that you had no primary medical fact or information whether Harry was or was not on a monitor?
A Firstly, I am not sure how medical being on a monitor it is. But it is a fact certainly. If she is saying it I would accept it.
Q You were also not aware as a medical fact that there were issues at the trial as to whether or not this monitor was working or on?
A I completely accept that point. That is the kind of information that would have been very helpful to me. You know what I mean? That is what I was after, this kind of information. Not the post mortem reports on the dead babies. I am not a pathologist. What I needed to see was information about things like that monitor. But when Professor David asked me are they likely to make any impact on my view, the degree of certainty
I expressed, my response was: “I do not think so. No.”
Q Exactly. You have been consistent on that. You have been consistent on your certainty. There is no doubt about that, Professor. Can I just globally put it this way, that all the matters that I have dealt with, it was quite, quite wrong for you to have put those medical matters into your medical report and discuss them under issues when you had no primary medical data upon which to say that?
A I do not agree with you.
Q Let me go through what we would submit are other problems with the report. At the top of page 44, I have dealt already with the question of whether or not it was -- the first three lines under paragraph two, I will not go through again with you, Professor, about whether it was or was an ALTE, or whether your research actually does indicate that ALTEs which are accompanied by nasal or oral bleeding are due to intentional suffocation. We covered that area.
A Yes, we did.
Q Can I deal with what you say was an important medical fact, which you put under paragraph three on page 44, namely, the failure to dial 999?
A Yes.
Q You said in your evidence-in-chief that you regarded that as an important medical fact?
A I do very much.
Q Can I just explore that, because if you had have an incident which you have, as it were, dealt with and the incident appears to be over almost as soon as it happens, why do you need to call 999?
A Right, okay, I just find it, to use your word earlier, astonishing that a father alone with a baby experiencing out of the blue blood pouring down the nose and difficulty breathing and choking that that would not immediately raise the most extreme concern leading me, or anybody I can think of to ring for an ambulance, because although as you said it seemed to be over fairly quickly I think that everybody understands how vulnerable babies are to everything and such symptoms would be so frightening and I think Mr Clark said they were frightening, that the only circumstances in which I could understand him not calling the ambulance is the same as the kind of thing you see when parents do not bring their babies along with fractured femurs; because they were responsible for it.
Q Can I just check a little bit more with the nosebleed. It could not have been, could it, a very major nosebleed because there was nothing recorded as far as we can see about being blood on the clothes or anything like that?
A I do not think you can say anything on that. He described the bleeding quite graphically. I do not know what the exact position the baby was in, where the blood would run to. But blood in anybody blood is quite worrying, but blood in a baby of this age, who has been previously well, that is really frightening.
Q Let us assume for the purposes of this debate that there was a nosebleed, that
Mr Clark dealt with it in the way that he described on the television programme, and as
a result of that the baby appeared to have got over whatever the incident was. You are criticising him in paragraph two on page 44 of not calling 999?
A Yes.
Q One of the things the truth of which you did not know and could not have known is whether Mr Clark in fact called for any medical assistance?
A He described what he had done and he said that two first aiders came up to the bedroom, and then it was a bit confusing whether he called or---
Q What is wrong with that? Summoning two first aiders? Why are you criticising him for that?
A Because, again, in my experience of parenting first aiders are not what you want, it is an ambulance and the baby to be seen in a hospital in case something really serious happens again. I mean, this could -- supposing something, you know, terrible was wrong with the baby and that in a few hours this was to be repeated but only much worse, first aiders are not the issue, first aiders are there to deal with first aid, this is a serious potentially, to any parent, life threatening event.
Q You have heard through the television programme, I put it no higher than that, that he called for a doctor and you have heard from DI Gardner that the records indicated from the hotel that a doctor was in fact called at about that time?
A A phone call was made to the to some surgery, doctors’ surgery. But when I ask Detective Inspector Gardner, this was one of the key tings I wanted to know, I wanted to know, firstly, for certain that there was no ambulance called and he was able to confirm that. Then when I asked him: “Did he get a doctor?”, and the answer was there was no evidence he had spoken to a doctor. That was what Mr Gardner told me and he confirmed that when he was here. There was no evidence Mr Clark had spoken to a doctor at the time.
Q But the point is this, is it not, you are, it appears, challenging Mr Clark's account of what he said about this matter in the television programme, are you not?
A No, I am not challenging what he said, I am challenging what he did not do.
Q I have to suggest to you that if the incident was over as soon as it was and if first aiders are, I will go back on that. The entire issue of whether or not appropriate medical assistance was called is not something which you are in a position to know the truth of. That is point, is it not?
A No, I do not think so.
Q You do not know the truth about the matters about which you are accusing this man?
A I heard his account and I checked it with the police officer in charge of the case. He was not able to relieve my worry that Mr Clark had not contacted the ambulance service or spoken with a doctor. Both of which would be, in my view, the right things to have done and the absence of doing that indicated to me this was typical of abuse.
Q You say:
“Extraordinary that is unless the parent had deliberately caused the bleeding as must, in my opinion, have been the case here.”
A Yes.
Q You could not have put it higher?
A No.
Q You deal in paragraph six of your comments on page 44 with the issue of IPH and effectively you dismiss that as a possible medical cause for the suffocation?
A Yes.
Q And between the strategy meeting and the writing of your report you had acquired no further medical information, I would suggest, about the case?
A Between the?
Q Between the strategy meeting of 25th July and the writing of this report on 30th August, you acquired no further medical information about the case?
A That is correct.
Q So what is it, when you can blindly dismiss IPH as a cause, what has happened since the strategy meeting where you are recorded as saying, that in relation to IPH, we go back to page 32:
“Professor Southall felt that he needed more
evidence and would need to see the post mortem reports”?
A I already debated that with you earlier today and I still go back to the earlier page 31 where Professor David, who was the one who had been putting forward that hypothesis to the court earlier, to the criminal court, was more or less negating it and I had already negated in it in my own mind because I just could not think of any way in which that condition was relevant.
Q You negated it in your own mind. You told the strategy meeting in order to consider it you would need more evidence and you would to need see the post mortem findings, but when you come to the report, without any post mortem, without any further information or seeing the post mortem you dismiss it out of hand as a cause. Why?
A Because, as I said, Professor David had already said at the strategy meeting that it was not a runner and I did not write the minutes, as I said, so I cannot complain about that. It does not completely add up, as your analysis is showing, but I never felt that this condition was relevant. Neither did Professor Green, neither did Professor David at the strategy meeting.
Q I have to suggest to you, Professor, you were quite right at the strategy meeting to have a note of caution about IPH because this was clearly a big issue and you needed to have more information and the post mortem before you could enter into the debate. What I am concerned about is why you threw caution out to the wind in your report and dealt with IPH in the dismissive way that you did?
A I think to go back to the first and primary fact of this whole case, which is that the court had decided that these babies had been smothered by their mother. The issue of idiopathic pulmonary haemosiderosis had not been put forward in the criminal court as the cause. Professor Green had told me there was no evidence for it whatsoever. I knew from my own clinical experience it did not fit in any way. Professor David at the strategy meeting had himself dismissed it. So perhaps when I got to writing my report I thought, well, you know, really there is not anything on this. There is not anything. Which there is not.
Q Clearly that is what you put in your report?
A There is not anything, yes.
Q Really, I would suggest, impermissibly so concluding because you had not seen one medical bit of information about this case. Can I move on and ask you about an answer that you gave when dealing with this case in chief, when you said, in answering Mr Coonan, the paperwork on the case would have been ideal, but it would not have changed my opinion?
A Yes.
Q Do you possess second sight, Professor?
A Well, you know I do not.
Q So, how can you say that seeing the paperwork in the case would not have changed your opinion?
A Because this comes round back to the central issue that I replied to Professor David. He asked me that, really. You know, "Is there any information that you can think of in this case which would throw your opinion out?" And I thought hard about it, obviously, and that is why I replied in my E mail.
Q Yes.
A The reason I thought so hard about it was it mattered, a lot, and I believe still
I genuinely believe that I thought about it, that I had spoken with in my view key people to ask them the key questions and I could not think of any
Q Yes.
A that I had not thought of based on all my experience of this condition.
Q Yes.
A That is where I came from.
Q Yes. And many of the key people, or at least two of the key people, of course who remained undisclosed to those involved in the child protection process?
A Which we have been through.
Q Yes. Can I deal with a wider matter and that is in relation to putting limitations in cases in matters generally?
A Yes.
Q And, indeed, even in research. I think you have accepted earlier that it is common in research matters clinical research matters to set out any limitations that the research in fact has?
A Yes, it is.
Q And can we just deal with that as it has occurred in the papers just in this case, where we can possibly see examples of that?
A Yes.
Q Can I ask you, please, to look at C4, which is the medical bundle, in tab 6 in an article that starts at Page 118 in the top right hand corner. It is the Pitetti article?
A Oh, yes. Yes.
Q Which is the article which was produced for the Committee's benefit as to indicating one of the many definitions of what an ALTE is, but it is an article entitled "Prevalence of Retinal Haemorrhages and Child Abuse in Children Who Present With an Apparent Life Threatening Event"?
A Yes.
Q Can we turn, please, to right at the end at Page 123?
A Yes.
Q And if we read that at the top left hand corner, the paragraph on top of "Conclusion", we have the following words:
"Results of this study may not be generalizable to other institutions in regard to the demographic characteristics of the study population. In addition, the study was performed at an academic center with ready access to a pediatric ophthalmologist. All but 2 funduscopic examinations were performed by a pediatric ophthalmologist. To be useful as a screening test for occult abuse, the funduscopic examination would have to be performed by ED physicians, who may not be as proficient as an ophthalmologist. However, most emergency physicians are familiar with the procedure and perform it with some regularity to identify evidence of haemorrhage"?
A Yes.
Q And that is a classic thing that one finds in clinical research where the limitations on one's own research are set out for all to see?
A Yes.
Q And, indeed, you yourself did it in two parts of your own research paper published in "Paediatrics"?
A Yes.
Q And just for the Committee's benefit, we can see that the article begins at Page 318 at the top and we see it in two places. At Page 319, under on the right hand column "METHODS Patients and Controls", we see at the bottom of the second paragraph the statement:
"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 epidemiologic indication of the frequency of intentional suffocation as a mechanism for ALTE"?
A Yes.
Q A classic, as it were, note to readers of cautions to be applied when reading your article. And, again, very fairly, you dealt with the matter when you were dealing with your Table 3 this is one that we have already seen at Page 327 at the bottom. Do you have that? At the bottom of your Table 3 under the line where you say:
"The number of ALTE reported refers to information received from the parents and must be considered with caution"?
A Yes, I see that.
Q Yes. So, in academic matters it is customary to put in limitations or cautions on one's research. The same applies in, I have to suggest, Court Reports?
A It does.
Q And can I take you in terms of Court Reports, or the advice on Court Reports, to again in this bundle at Page 345 at the top? It is written in manuscript and so it is not terribly easy to see, but it is Page 345 at the top. It is entitled "MEDICINE AND THE LAW: Expert evidence in cases of child abuse", by Catharine Williams, do you see that?
A Actually, I have got "The role of the expert Williams, C. Williams". "The role of the expert witness, C. Williams". I am not sure I have got the same one as you?
Q No, that is an error, because that was a subsequent article rather than an article that was prevalent at the time and I apologise for that.
A Yes.
Q I will substitute the manuscript. (May I just check that with the Members of the Committee that it should be a manuscript written at the top "345", "346" and "346A" which is the article to which I am referring entitled, "Expert evidence in cases of child abuse", by Catharine Williams. Do you have that?
A Yes, I have got that now.
Q You have got it?
A Yes, that is fine. Yes.
Q Yes. And it is published in "Archives of Disease in Childhood", do you see that in the top right hand corner?
A Yes.
Q And that magazine is, as it were, the house journal of Members of your Society, is it not?
A Yes, it is.
Q And so all Members of Paediatricians well just remind me, because I keep on forgetting because it has got so many initials, of the Society whose...?
A The Royal College of Paediatrics and Child Health. RCPCH.
Q Yes. And so it would go, this magazine, to all Members of the Royal College including ones who are training, I suggest, is that right?
A Oh, yes. Yes.
Q Yes. And it would cross over all sorts of desks, including that of your own?
A Yes.
Q And this was an article in that magazine in 1993?
A Yes.
Q And do you accept that this author, who appears to come from the University of Sheffield Faculty of Law, at the bottom right hand side of the first page says something about guidelines?
A Yes.
Q And says that:
"In his guidance to experts, Mr Justice Cazalet stated three basic propositions that they should adhere to always, either in the preparation of a written report or in giving evidence in court. He said that experts should: (a) provide a straightforward, not a misleading opinion; (b) be objective and not omit factors which do not support their opinion; and © be properly researched"?
A Yes.
Q And that is, with your experience of care proceedings and giving evidence and writing reports, the standard guidance, is it not?
A It is.
Q It is the basic mantra, if I can put it that way?
A Yes.
Q And can we go on and (a), (b) and © she then deals with under particular headings as we see through the report?
A Yes, I can see that.
Q And can I take you to where she deals with ©, i.e. "be properly researched", which she deals with at 346 at (a)(sic) on the right hand column?
A Yes.
Q Do you see that?
A Yes, I have got it.
Q Can I read it to you and then I will ask you some questions about it:
"In saying experts should be 'properly researched', Mr Justice Cazalet was not addressing his mind to the issue that an expert should be well read and have kept up with current medical literature, although this is obviously expected of all experts. Rather he was closely allying this requirement to the other two requirements and looking at the issue of researching the particular individual case. Experts are routinely instructed by one of the parties to a case. This may well lead to them being presented with very different basic information from that given to an expert instructed by the other side. But this does not mean that the expert should proceed to give an opinion without reference to their source of information. An expert should always be alert to the fact that the information provided may have been selective. If experts feel that their opinion is not properly researched, as they suspect that they have been given insufficient data, then their duty is to say so and to indicate that as a result the opinion can be no more than a provisional one"?
A Yes.
Q Is there anything in that guidance with which you would join issue?
A No.
Q And it is right, as a matter of fact, that you have provided a document for a court entitled "Medical Report" which did not give reference to your source of information?
A Yes.
Q Namely, the involvement of the Professors?
A Yes.
Q And it is right also that you did not say in your report that it was in any way conditional or limited because of insufficient data?
A That was because, as I indicated earlier, that was what the Court had already agreed with me through the solicitor; that they were not going to give me the information I wanted.
Q Yes.
A And, therefore, everybody knew that I had not got the information. I have also said this morning that I wish that I had written something in there to say exactly what the Court had already told me because then that would have avoided this point, but I did not and so you are right.
Q And, as a result, as I think to use one of your expressions that you used earlier as a result of not setting out in terms the limitations of your report you felt vulnerable over it?
A I put that into my reply to Professor David, yes.
Q Yes. Can I, whilst on the subject of medico-legal work, deal with the booklet or the handbook that was prepared as guidance to expert witnesses in Children Act cases prepared by Mr Justice Wall?
A Yes.
Q And we see that starts at Page 348, just a little bit further on from the Williams' article that we have just been considering?
A Yes.
THE CHAIRMAN: Just while we are looking that up, can I say that I think we ought to take a break some time soon. I am conscious of Professor Southall's marathon time in the witness box.
MR TYSON: May I just deal with this aspect?
THE CHAIRMAN: Yes, absolutely. It is just to give you warning that at some stage at your convenience we should stop.
MR TYSON: I do not anticipate that this aspect will be short and then I am going to move on to another area. (To the witness) You see that that is entitled "A Handbook for Expert Witnesses in Children Act Cases"?
A Yes.
Q As a matter of fact, Professor Southall, have you ever come across this handbook before your involvement in these particular proceedings?
A No, no, not before.
Q No.
A Well, before I wrote the report
Q Yes?
A I had not.
Q No.
A But I have since, but not before I wrote my report.
Q Yes. You have had an opportunity of looking at it since, presumably?
A Yes, yes.
Q Not least because it has been highlighted in these proceedings?
A Yes, yes.
Q But, in any event, it provides guidance for people in your kind of position who are producing medico-legal reports in Children Act cases in any event?
A You have to remember that I have not done this for five years because of the very circumstances I am in. I think that has to be made clear that since 1999, as a result of the enquiries set in train in the Trust, apart from this report on the Clark case I have not produced any reports for the Court because of the position I have been in with regard to being investigated.
Q Any reports to a Court in this country, or any reports to a Court worldwide?
A There were early on before my suspension, the only reason why I could produce any reports would be subpoenaed. I would have to be subpoenaed. And I finished, I believe, one report for the New York State that I had done most of the work on, but I have not produced any new reports in the Family Court or the Criminal Court in this country.
Q Anyway, that being as it is, you have since had an opportunity of looking at this?
A I have since, yes.
Q And I mean is it fair that it provides useful guidance for expert witnesses in Children Act cases?
A Very useful, yes.
Q And that it is written by an authoritative author who had the assistance of authoritative people in making it, is that a fair...?
A Very, yes. Very fair.
Q And amongst the guidance contained in there can I ask you please to look at Page 373, and can I ask you and can we look together, please, at Paragraph 5.4?
A Yes.
Q Which reads:
"You should, however, be very cautious when advising a judge that in your opinion a particular event occurred. You should do this only if you feel you have all the relevant information and that the expression of such an opinion is both truly within the area of your expertise and a necessary part of your decision making process. The judge will have to decide the question on all the evidence in the case, including the oral evidence given in the witness box. You will not have access to all that information, and the expression of a categorical opinion which may be invalidated by material not within your knowledge will at the very least substantially devalue your evidence"?
A Yes.
Q Two questions: First of all, do you accept that that is good guidance given in this book?
A Yes, I do.
Q Secondly, do you accept that in providing your opinion that a particular event occurred, namely an ALTE in Christopher in the hotel bedroom, that was caused by Mr Clark’s deliberate suffocation of Christopher, you were there expressing your opinion in your report that a particular event occurred?
A Yes, I was.
Q And do you accept thus that you were in breach of the second sentence of that guidance, namely the advice is you should only do this if you feel you have all the relevant information and that the expression of such opinion is both truly within the area of expertise and a necessary part of the decision-making process?
A Yes, I do. I think that sentence does describe what I have been trying to say throughout, that I felt that I knew what I was talking about because of my work in this area; that I had done my best from talking to the most important people in the case who would be able to answer the questions – the police and Professor Green – that I had all the information that really mattered about that incident – I am not talking about the deaths, I am talking about that incident – and I do feel that is why I answered Professor David in the way I did. I still believe it and I still think that I did my best to get this right and it was my duty to raise this because of the concerns I had for the baby.
Q I have to suggest to you that in no way did you have all the relevant information, professor; you had not one jot or iota of medical information about this nosebleed?
A I do not agree and that is the point I am making, that that is why I said what I said in my reply to Professor David and I stick to it and I have stuck to it throughout. That is my strongly held belief with regard to that incident, which is the one over which I am making my stand.
MR TYSON: That may be a convenient moment.
THE CHAIRMAN: Yes. We will take a break, Professor Southall, mainly to relieve you, and we will resume at 11.40.
(The Committee adjourned for a short time)
MR TYSON: Professor, we were looking at some guidance given by Mr Justice Wall in his handbook and we dealt with the guidance on when it is permissible to assert a fact. Can we look at another aspect, please, arising in the same book, about his guidance on information sharing in child care cases? Before we go to any specifics, you can readily concede that information sharing and openness in child protection is a very vital aspect of child protection?
A Absolutely essential.
Q Can we go, please, to chapter 10 in Mr Justice Wall’s book at page 381? You see it is entitled “Discussions Between Experts Prior to Reports being Written”?
A Yes.
Q Can I take you, please, to paragraph 10.5 and can we read it together:
“What the court is anxious to prevent is any unrecorded informal discussions between particular experts which are either influential in, or determinative of, their views, and to which the parties to the proceedings (including perhaps other experts) do not have access.”
A Yes.
Q Do you accept that in your informal involvement of Professors Green and Meadow in this case that you have breached the guidance given in 10.5?
A The first part of that sentence is clear, but the next bit I am not sure about. It says:
“…which are either influential in, or determinative of, their views, and to which the parties to the proceedings to not have access.”
It is really the last part.
Q Let us break it down then. The views of Professors Meadow and Green were influential in you coming to your views?
A Very, yes. Sorry to interrupt, but they were very important in confirming other information so that my views were not inaccurate.
Q And thus, as a matter of use of English, they were influential in your forming your views?
A That is why I am querying it a bit. It is not quite the right phrasing that, “influential in or determinative of”; they were confirmatory in the sense that they were confirming factors from the dead babies which had an influence – so that is reasonable – on the live baby event, because the live baby event – and I keep coming back to that – is what really matters, from my perspective.
Q But when I went through a number of the medical matters in your medical report you kept on coming back to the fact that this had been confirmed by the discussion with Professor X or Professor Y?
A It was confirmatory, not determinative.
Q It was confirmatory material and thus, having had that to confirm, thus influential?
A Yes, I think “influential” is not a bad word.
Q Thank you. And the parties to the proceedings, namely the local authority, the child’s guardian, the mother and the father, did not know that you had had the assistance of those views?
A They did not know, but – and this is---
Q You are---
A Sorry, this is the important---
Q You are answering the questions here I do not want to stop you?
A I thought you might come to it – because the really crucial issue in this last part of the sentence is “including perhaps other experts”.
Q I am coming to that.
A I thought you might, so I do not want to pre-empt you.
Q I make the simple point. Again, you kept away from Professor David the fact that your views had been influenced by a combination of Professor Green and Professor Meadow, I have to suggest?
A Yes, and there is a major reason for that, which I perhaps have not got across adequately to you. That is that Professor David, in his four-hour meeting with me, did not at any time say that the facts, the medical facts in the dead babies, were incorrect. That is to say, he did not challenge me, “Well, how do you know that there wasn’t bleeding in the lungs, that there was bleeding in the lungs fresh and old?” “How do you know there wasn’t petechial haemorrhages?” He never said any of this to me, therefore I assumed that he was agreeing with me on this, because we were talking – this was not a one-way four-hour conversation; he was talking to me and---
Q But he was not telling you anything about the case, was he?
A Yes. It is impossible for him to have had a meeting with me without discussing things. For four hours we talked about things together and he had plenty of opportunities to say to me that, “The information on which you are basing your contention is inaccurate or wrong”. He never said that.
Q I am sure he had plenty of opportunities to say that but that was not what his role was. His role was to elucidate your views, not to impose his views?
A I was being as helpful as I could. I had given him a report in which he had access to – obviously, he was reading it – in which I gave my view and then for four hours we talked about lots of issues, and at no time did he indicate to me that he was concerned about the factual basis of my material. He never indicated that to me. In fact, when we parted he was very supportive of what I had done, what I was doing in my work with this case, despite the precarious involvement or position I was in, he was very, very supportive. When I received the e-mail from him, I believed that he was asking me a very important question, which I thought hard about, which was---
Q Can you delay that? I will come back to that.
A But then – because I have not quite finished; the rest of the concept is quite important. When I saw his report, I have to say that when that report came to me as part of these proceedings I was absolutely devastated by what I saw because I do not think that Professor David represented to the Family Court my concerns. He represented his concerns on my data. None of those concerns were put to me, apart from the specific caveat in the e-mail. That is the truth of the matter as far as I am concerned.
Q But we went through his concerns as set out in his report and you agreed with me that those were the concerns that you had expressed to him – we have been through that. We went through point by point your concerns as you expressed to Professor David at the meeting and you agreed that yes, you had made all those points and yes, it was a fair summary of the points and concerns that you put forward?
A About the bleeding incident, the way he presented that was very clear and accurate, apart from a few minor points. But what he had not made out to me, which he made out in the witness box here, as well as in his report, was how little he thought of my data. He denigrated my data; he said it was a theory, not good research – it was not good research. I think if he had said that to me at the time we met I would have been more – well, I think I would have had to have said “If you really believe I don’t have the facts, then here we are, I spoke to Professor Green”. But all the time he was indicating to me he was very happy with what I was saying. So I had no reason to reveal to him the need---
Q But you have to accept, going back to the point here, paragraph 10.5, professor, that you had unrecorded informal discussions with other experts to which the parties and Professor David were not privy. It is a fact, is it not?
A They were privy to the fact – you are quite right. He did not know, and I did not tell him, that I had spoken to Professor Green, but he, Professor David, had all these facts anyway because he had been privy to the criminal proceedings. So he knew all the facts anyway.
Q I have made my point and we can move on. Can I ask you finally, whilst we are looking at this bundle of documentation, to look at your own article, please, at page 318? Can I preface my question with this? You will be aware, I hope, by now that I have been criticising you on behalf of the Council for preparing a medical report without any basic medical facts?
A I am aware of that criticism.
Q And you are aware that I have been criticising you for coming to conclusions without knowledge of not only medical but other facts as facts?
A I am aware of that.
Q Can we look, please, in that context at page 318 at “Conclusions”, and do we see what it says there:
“Induced illness is a severe form of abuse.”
Pausing there a moment, included in induced illness has to be ALTEs?
A Intentional suffocation, yes.
Q So for “induced illness” we could write in there “intentional suffocation”?
A Yes, we could.
Q I am grateful.
“Intentional suffocation is a severe form of abuse that may cause death or permanent neurological impairment. It may be accompanied by other severe forms of abuse, may result in behavioural disorders, and may be accompanied by immeasurable suffering. Detection of this abuse requires careful history-taking; through examination of the health, social and police records; and close and focused collaboration between hospital and community child health professionals, child psychiatrists, social workers, and police officers.”
A Yes, I wrote that.
Q And would you accept that in relation to your report in this case that you went down not one of those steps?
A I do not accept that at all. I went and visited the key people – the social workers, guardian, police officers; I went to see them.
Q You went to see them but you did not examine the health, social and police records. You might have had a discussion – and I have to say it was incumbent on both those discussions with the police and particularly the social workers not to give you any information because they could not – but the key thing here is that you did not examine their records?
A That is different, but to say the whole of that is incorrect is not so because I did meet with the police officers and social workers, as you see. The records, yes. I wanted them, I asked for them, they agreed to give them to me then changed their mind. That is the reality.
Q And the reality is that you did not follow, in coming to the conclusions that you did, any of your own guidance?
A Well, I had a choice. I could have said “Right, you’ve not given me access to the records I am asking for. I am not going to give you any form of opinion and I am not going to give you my points of concern”. In my view, that would have been very good for me but not at all good for the child and the risk that I considered the child was under.
Q So in your zeal, I have to suggest to you, to make your conclusion become apparent, you made significant and unacceptable short cuts in child protection practice?
A I had to compromise what I would normally do by virtue of the fact that I was not being given access to the material that I was asking for and which the Court refused to give me.
Q Can I come to what is effectively going to be the last area which I am dealing with, which you may be relieved to hear? Can I preface this by saying it is one of the many troubling aspects of this case that over the course of time, despite having the same amount of information, your view has hardened?
A Since when?
Q From Gardner onwards. I will just put my basic proposition and perhaps I can follow through the documentation?
A Sure.
Q Can we first of all see the Gardner meeting at page 18 in bundle C1. Can we look at page 18 and take it from about the bottom third of it, where you say that looking at the incident at the Strand Palace Hotel:
“Doctor Southall appears adamant that had Christopher suffered a nosebleed, then unless there was a rare medical reason such as leukaemia then it was a deliberate act to suffocate and the bleeding would have been at the point of the abusive act. In other words it would not have not have been resultant from the earlier abuse. However Professor Southall is not aware of the full facts and did state that he would need to know exactly how Christopher had suffered, difficulty in breathing, amount of blood, necessity to resuscitate, visual observations and what records were made”?
A Yes.
Q So there you are setting out your check list of the material that you wanted in order to come to a medical diagnosis, I would suggest?
A No, not in order to come to a medical diagnosis. I think you need to go back to the sentence before which is: “Dr Southall appears adamant.” What you have perhaps, I do not know whether I am making it clear. Maybe I am not. We are in a situation where,
I am sorry if it takes a few seconds, but we are in a situation where two babies have died and their mother has been convicted of killing them. This situation occurs between 30 and 40 times a year in the United Kingdom where a parent is convicted of infanticide, murder of their child. So this is not a remote thing we are talking about. This happens almost once a week and there are many cases where similar allegations are made, investigated and then the conviction does not go ahead, usually because they cannot… So we are in a situation where already we have one of two parents in prison for smothering these two babies and the real problem I have is with the nosebleed, because if I am right and this occurred at the same time as the apparent life threatening event and difficulty in breathing occurred at the same time as the bleeding and this is relevant to the subsequent smothering of these two babies, then Mr Clark was the person present at that time. That is the issue that I am adamant about after checking with Professor Green, checking with Detective Inspector Gardner that they had not adequately, in my view, and still have not adequately ruled out that crucial issue. It is not -- you said at the last time on Friday: “It is astonishing, is not, Professor Southall”, well, it is not astonishing when you think this happens at least one a week probably in this country. This is something that needs to be -- and the only way you will get anywhere is for people to actually make a stand and say this is a possibility.
Q I know you have made a stand here and you have made a lonely and now much criticised stand, but you have made a stand and I have to say I am admire you for sticking to it and for being intellectually honesty in that sense. Moving on, when you were making the stand, I am trying to assist you here because you are actually saying I cannot really make a stand, I might feel adamant about it but I cannot make an honest stand because
I do not have the full facts and I need to know exactly how Christopher suffered, difficulty in breathing, the amount of blood, the necessity to resuscitate, visual observation?
A Yes. I do not draw back from this. You are absolutely right. If I was to be writing a full medico-legal report this is information that I would have to have. What
I really wanted was I wanted this information to be dug out because in my view it was not there.
Q You must understand, Professor, what you are being criticised here for is for writing a medical report and concluding, amongst other things, that Mr Clark had deliberately killed his two children when you knew and you have acknowledged that you did not know the full facts and you needed to know, before you could properly say that, the matters set out in this check list here?
A This is what -- I did not write this. This is written by DI Gardner. He was interpreting what I was saying, which is still very close to this. I was adamant about what I was saying, but for completeness and for properness I needed to have in front of me all this information. Not before I made the allegations, but before those allegations could really be fully and appropriately investigated.
Q Do you not think in that context that for you to be certain that my client, Mr Clark, killed his baby it was appropriate for you to be both complete and proper?
A That was why I answered Professor David's point in the way I did. I thought through, is there anything that I can think of based on my experience that is going to come out that has not already come out as a result of my questioning of DI Gardner and Green that could shake my conviction. I just could not think of anything. Now, if the police had done that alibi check and that had shown it, well, of course, that would have been a different matter.
Q But, of course, you are not saying, I am sorry to cut across you, if you think I am being unfair?
A No, no, I do not.
Q Please complete any answer that you want to give. What you are not saying here is I need to checkout the alibi. What you are saying here is that you wanted medical facts and you never had those medical facts?
A What is missing from this, as you know, because we have had this before is that Detective Inspector Gardner has not written in here about all the questioning that went on about that alibi. He has not included it in his statement. That information he told me could no longer ever be obtained, it was too long ago. What I am asking here is I would like to have all those facts that you have me listed.
Q All those medical facts?
A They are not medical facts actually.
Q How he suffered. Difficulty in breathing. Amount of blood. Necessity to resuscitate. Visible observations. What records were made. Those are all medical facts that you wanted, are they not?
A They are historical details actually because if you look at them how many are going to produce x-rays, investigations, pathology reports on their on bat? None of them. It is historical data which I would have liked more information about.
Q What records would cover all those? Can I move on. I have made my point in relation to that. Again, having set out there, I suggest, what you wanted, when it came on to the strategy meeting, again, you were saying things you wanted but did not have quite such a long check list. Can we look, please, at page 30. It is the small penultimate paragraph,:
“Professor Southall indicated that he accepted he did not know enough about all the facts that had been dealt with at trial or any of the medical evidence but he was seriously concerned.”
So, there I have to say, that you were, making as it were, proper limitations?
A It then goes on. I think you should read the rest of the sentence:
“…and that if the father had suffocated Christopher at the hotel it was unlikely that he was not responsible.”
What I was saying was I did not think that there was any medical or historical or other information that was like to likely to come out from this analysis that would make a difference to my view, but for completeness I needed to have it. That is what I have requested and so did the court.
Q You were requesting it there. I am giving you credit, although you may not think it, by saying that before you could come to a proper view you needed to know the full facts and you wanted to see all the medical evidence. If you do not want to accept it in those terms let us move on to page 32, and the bottom of page 31 is the best place to pick it up:
“Patrick Wheeler indicated to Professor Southall that he could not at this stage give him access to any papers and clearly we would need court approval for that, but it may be possible for us to give access to certain papers once we have cleared the matter with court. Professor Southall indicated that he was prepared to give his view once he had the full facts and could do that immediately. He clarified that he would be happy with the information about the nosebleed”?
A Yes.
Q So, again, you are putting, I would submit to you, appropriate caution saying that without that information you really were not in a position to give a proper report to the court?
A I wanted the information, I agreed with you on that point, but when it did not come I had a choice and I was of the view that I gave in my report and in the e-mail to
Professor David. I have said it many times, I am sticking to that because that is what
I believe to be right.
Q What it boils down to is this, the reason why you did not put in a caveat in your report is as Professor David finessed out of you; that you did not think it required a caveat?
A I felt that if I put in a caveat it would have -- the second caveat we are talking about now, not the first one, because I think there is a difference. We are talking about the caveat in response to the e-mail.
Q I am dealing with the first one. I am dealing with the lack of caveat in your report.
A In the report, okay.
Q To indicate that it was based on very limited information.
A The reason for that, that is a different reason, the reason for that is that I thought this was well accepted and well known by everybody involved in the proceedings.
Q Just to cover yourself, surely, and it would have been appropriate to have said, as all parties know or should know I have had no information about this case apart from the TV programme and…
A I wish I had put it in. I wish I had put it in because it would have protected me but it would have not influenced my opinion.
Q In hindsight do you accept that you should have put it in?
A No.
Q Why not?
A What I am saying is that I considered that it was known by everybody involved that that was the situation; that the court knew, the solicitor knew, social services knew, Professor David knew. Everybody involved knew that I had not had access to the papers. So it was not necessary for me to put it in. But it would have been, from my point of view, retrospectively, looking back better for me if I had put it in. But I would not have made any difference to this case.
Q I accept that you do not think it would have may any difference, but you do accept with hindsight you should have in some way qualified the report, either by calling it a preliminary report or by setting out the fact that it was based on very little information? Now with hindsight, you accept that?
A I accept the word preliminary would have been better. I accept the word medical reports should have been points of concern. I accept those points completely. What I do not agree over is that I should have put a caveat in. Should have. If I had it would have been better for me.
Q Do you not think that you should have put in a caveat in the form as suggested to you by Professor David when he sent you the e-mail which he did on page 46 of your bundle??
A No, I do not.
Q You see that in the penultimate paragraph he said:
“I feel I have to ask this question because nowhere in your report did you say something like, these opinions are based on the very limited data available to me in the television programme, I have not had the opportunity to study the papers in this case and I accept there may be data available that negates or is inconsistent with the opinions expressed here.”
Why, even with hindsight, Professor, do you not think it would have been appropriate and responsible for you to have put in words to that effect?
A If you go to the next paragraph it says:
“My guess is that you did not insert a caveat like
this simply because you are in a hurry to send it off.”
No, that is not true.
“But, of course, it is possible that you take a much stronger view. I want to make sure that I fairly and accurately represent your opinions.”
The answer is that I did not insert it caveat because I took a stronger view than he thought. If I put in a caveat it would have weakened my opinion -- not opinion, it would have weakened the conviction of what I was trying to say which, in my view, would not have done justice to the child in this case. This is how strongly I felt and that is why I did not put the caveat in. That is what Professor David is really getting at. It is possible you take a much stronger view. That is the reality - I took a much stronger view.
Q The reality in this case is that you, despite the obvious limitations set out in this
e-mail, in your report, despite those obvious limitations, you took a stronger view and so deliberately did not caveat this report in that way?
A That is correct. That is why I replied the way I did. That is the honesty of what
I am trying to say to you. I looked at this very carefully. I did not just jump back.
I thought about it. I thought, well, is there anything -- this is what he was asking me, is there anything like that is likely to come up now that you have not thought of that could weaken your particular view? The answer to that is no, so, therefore, the answer is not to put a caveat in. Hence my reply.
Q Yes. Even then you felt vulnerable, having been given the option to you, he was in a sense throwing you a legal lifeline, was he not?
A Yes.
Q You chose not to take it and you felt vulnerable as a result?
A I chose not to take it for one very important reason - I did not want to weaken what I was putting across to the family court and for him to put across; that I felt very strongly this baby was at risk and nothing has changed my mind since.
Q That is why you expressed your views to the criminal standard of proof despite not having one iota of medical information?
A I am sorry, I have to stop you with the last phrase. That is why I did it. That is why I used that phrase. But not the last bit. We have arguing about this. I will not accept that phrase, I am sorry.
MR TYSON: I have no further questions.
THE CHAIRMAN: Mr Coonan.
Re-examined by MR COONAN
Q Professor Southall, could I just deal with about four or five points, please, in no particular order. Can I take you to C1, page 43. You have been asked some questions both by me initially and also by my learned friend in respect of bullet point two. The quote I lift from your text:
“The first death was initially attributed to a lower respiratory tract infection.”
Just pause there for a minute. In the course of your evidence you said that the Detective Inspector Gardner had confirmed that reference which had been made on the television programme?
A Yes.
Q Can I ask you this question, did Professor Green deal with that point in any shape or form?
A Yes, he talked to me about it as well.
Q You have used the word confirming or confirmatory in respect of other elements. How would you describe Professor Green's comment about the existence or otherwise of the respiratory tract infection?
A It confirmed what the video reporter had said. That that was a fact. Basically.
Q Moving on in the sentence, we come to this phrase:
“…but later there was reported to be a torn frenulum.”
I just want to pause there. It is the insertion of the word “later”, as you appreciate Professor David has contended in his evidence that as a matter of fact that that is wrong, namely, that a torn frenulum was reported at the time of the post mortem itself on Christopher?
A Yes.
Q You remember that point that he made?
A Yes.
Q Have you any observation to make about the use of the word “later” there?
A I think what I mean is that may be it was noticed when the post mortem was done the first time but because the pathologist decided at that stage that this was a natural death it was not highlighted as a suspicious finding. That is, I suppose, what I mean. Only later when the second baby died was it brought into the equation.
Q Of course, the Committee have from the programme itself precisely what
Dr Cowan was saying about the time when the frenulum was discovered. The rest of that sentence I think you have dealt with already, the reference to possible bruises on his legs at the time of death. For the sake of completeness, did Professor Green deal with that, yes or no?
A He just said that was correct but I did not discuss it any more.
Q Right. Now, can we move on to Page 44 and I take you to Paragraph 5 and it is in connection with IPH that I ask this question. Can I take you to fourth line:
"Idiopathic pulmonary haemosiderosis can produce the coughing up of blood but usually this occurs through the mouth or the mouth and nose together. Infants with this latter condition have progressive respiratory failure and evidence of multiple haemorrhages before dying".
Now, I just pause there for a minute. Was that your opinion?
A Yes, that was my opinion. Yes.
Q Continuing:
"Bilateral trickling of fresh blood described by Mr Clarke would not be in accordance with this diagnosis. It is important to note that a doctor did not ever see Christopher prior to his death, which would be incompatible with this latter diagnosis or any other medical causes of nose bleeding except for intentional suffocation".
Does that represent your reasoning for excluding IPH?
A Yes. What I was getting at was that, if the baby had this condition, the baby would be getting progressively more ill with more and more bleeding and more and more events over the course of not a few days, but months, and it is really not compatible with that medical diagnosis.
Q As a result of your discussions with principally Professor Green, or indeed for that matter your conversations with Professor David on 28 July, was there ever any suggestion of any evidence base which might lead to a diagnosis of IPH?
A No, no.
Q Now, Professor Southall, I just want to deal with this what appears to be a fundamental point. You told the Committee that your primary purpose was to focus on/address the question of the nose bleed in the hotel?
A Yes.
Q And the significance of it when you heard it described in the television programme?
A Yes.
Q In order to address that question and its potential significance, was it an essential precondition before you did so that you obtained other medical data?
A No, not medical data. It was forensic data that I was after.
Q Right. And when you came to the conclusion as to the causation and significance of the nose bleed incident, did you feel yourself limited or inhibited by not having data in relation to that incident?
A I felt somewhat inhibited, but not enough to if you like after I had spoken to –
I am talking now after I had spoken to both Professor Green and Detective Constable Gardner and after I had asked them the key questions about, you know, other medical causes being excluded, like leukaemia and blood clotting?
Q Yes?
A After I had got all that out of the way, the fact that I did not have additional forensic evidence about the issues laid out in there in the commentary by DI Gardner were certainly important to me, but they did not damage the strength of conviction I had that the baby was at risk because that is the fundamental reason why I was doing what I was doing.
Q Can I be specific?
A Yes.
Q When you came to write the report and you addressed the essential and fundamental issue of the significance of the nose bleed in the hotel, did you feel inhibited or limited by the fact that you did not have post mortem reports?
A No, I did not, because I had spoken to Professor Green and he had told me all that I needed to know about that.
Q Did you feel inhibited or limited in not having laboratory reports, or x rays?
A Not at all, no.
Q Now when it came to writing the report, would you just say please in your own words and take it slowly because it may be an important matter were you purporting to construct what has been called a classical medico-legal report?
A No, I was not.
Q And in a word or two would you tell the Committee, please, why you were not purporting to do that?
A Because, in doing a full medico-legal report, I would need to have in front of me all the information as background and have analysed each piece of information separately. What I was doing was trying to get the Family Court to re-look at an issue which I considered had not been adequately investigated about the incident in the hotel which had a bearing on the safety of the baby.
Q Were you purporting to carry out, either, an identical exercise that Professor David had done?
A I could not. It is not possible.
Q But were you purporting to?
A No, all I was saying was that I believed what I was saying was true and that it could be used by Professor David in the Family Court in a court of law.
Q If you had been purporting to carry out the exercise of a classical medico-legal analysis and producing a report, would you have needed to have had all the data?
A Yes.
MR COONAN: Professor Southall, that is all I am going to ask you, but there may be questions from the Committee.
THE CHAIRMAN: Professor Southall, you have seen the process at work and we now come to the part of it that Members of the Committee may have questions for you and, if they do, then I will introduce them to you again.
Questioned by THE COMMITTEE:
MS LANGRIDGE: Professor Southall, during your examination and cross examination you have indicated on several occasions that you needed to rule out any medical grounds for the two children's death before proceeding with what I have called in quotes "a theory". Now, I wanted to ask you a few questions around that. First of all, you indicated earlier that you had followed the Sally Clark case on the net and on the Royal College's website?
A Yes.
Q Did you continue to follow the case up to and post Sally Clark's eventual release?
A Yes. Well, more in that I read the Appeal Court judgments.
Q I see. And so you would be more familiar than I with something that I am going to ask you about, but I hope that the Chairman will not rule me out on that. At the start of Mr Tyson's cross examination you indicated that you still believe today that Stephen Clark had killed their children, and am I right to infer that you maintain this view despite what I think is the later medical evidence considered by the High Court in the second appeal that resulted in Mrs Clark's early release in January of 2003?
A Oh, yes. Yes, the material from the Staphylococcus Aureous; the bacteria that was identified in a number of specimens. That material, do you mean?
Q Yes. Well, just to be clear. So, are you saying that that medical because you have made a great point earlier that you needed to see medical evidence and rule it out?
A Yes.
Q You needed to know if there was a medical reason?
A Yes.
Q So, what I am trying to understand is do you consider that that was a sufficient medical reason certainly for Harry's death?
A In my own opinion on the Appeal Court material that I have read I do not consider that to be a sufficient cause, no, and I think the Appeal Court said that that evidence made the conviction unsafe and needed to have been tested in the original Criminal Court. And the problem the Appeal Court had was that it had not been tested and, in reading the Appeal Court, there were two different views given by different experts to the Court about that Staphylococcus and I think the Appeal Court personally I think it was correct and said, you know, "This should have been tested at the time and the fact that it was not makes the conviction unsafe". It does not say that Harry died of Staphylococcus Aureous. It does not say that.
Q Right. Well, a second question about medical evidence. As you know the Committee have been given a copy of D2, which is the transcript of Professor David's evidence in the Criminal Court proceedings.
MR TYSON: D1.
MS LANGRIDGE: I am sorry, D1. (To the witness) If you had been given a copy of D1 prior to your meeting with him
A Yes.
Q would it have changed any of the views you eventually put forward in your report?
A No.
MS LANGRIDGE: Thank you.
MS BREMNER: Professor Southall, just a couple of matters of clarification if I may please. You have told us that you had some discussions with Professor Green?
A Yes.
Q And Professor Meadow?
A Yes.
Q Are you able to say whether you know from the discussions that you had with them how much of the original trial they attended? Where they there all of the time, or only to give their own evidence to give an overview of the trial?
A I do not know the answer to your question, I am sorry.
Q You do not know. All right. Well, thank you for that. And it is also I think apparent, if I have it right, that you were aware at a reasonably early stage that quite a lot of expert people had become involved?
A Yes.
Q Both in the trial and in the care proceedings in relation to Child A?
A Yes.
Q And I am wondering if you are able to say why you thought and think, if you did and do, that it was your responsibility and that you were not able to stand back and allow those other experts and professionals to deal with the protection of Child A?
A Yes, thank you. I think that in answering that there is two parts to it. One is that I did feel that I had a lot of information in my experience and in my research and clinical work and Court work about intentional suffocation of infants that might be helpful to the Family Court, and in particular with regard to the bleeding material because I knew that our work was the only case control work in the world on that subject. So, that is the first part of the answer to your question.
The second part is that I did feel that there appeared to be some confusion over the question of the timing with regard to the timing of the suffocation and it was that that was confusing everybody. Because I could not understand how, for example, Mrs Clark could be in prison for this if the experts had been able to argue adequately in Court that the bleeding occurs at the absolute time of the suffocation, which would therefore make it impossible for Mrs Clark to have done the event in the hotel room. And I considered then that there was something wrong with the whole case, because here was a mother in prison for life where even the Defence expert, Professor David I mean, he has now said that he agrees that smothering and bleeding are simultaneous. And so something had gone wrong in my mind in this and that meant, apart from the fact that the mother was in prison, that the baby could be at great risk and which is why I did what I did.
MS BREMNER: Thank you.
MR GURJAR: Professor Southall, a couple of questions for you. It is clear to me that your discussions with Professors Meadow and Green formed or helped you to form your opinions. Did you raise with them at any point the issue of whether Stephen Clark's guilt had been discussed by them? Did you discuss that?
A Oh, yes, I did. Yes, absolutely. I raised with particularly Professor Green my views that suffocation and bleeding are simultaneous and, therefore, how could it be that Mrs Clark was being held responsible for that event in the hotel because that had to be logical, did it not? That that event to imply that that event in the hotel was something completely separate from the subsequent death of Christopher just does not make sense logically.
So, I asked him why it was? "How could it be that Mr Clark was not responsible?" And he said, "Well, because there can be a delay between suffocation and bleeding". So, I said, "Where has that come from?", and he said, "Well, that came from Professor Meadow and also some other experts supported Professor Meadow in that". And I said, "Well I have to say that, you know, from my experience that does not happen. It is simultaneous", and he then Professor Green became very upset. I mean, I know him and he was very concerned with what I was saying and said, "Do you mean that it does not ever delay?", and I said, "I have never heard of it and never known of it". He said, "Well, I need to speak to the Counsel and I need to do this urgently. I will get back to you", and he did get back to me and he said, "You must go and give this information to the Police".
MR GURJAR: Okay, thank you.
THE CHAIRMAN: I am afraid there are one or two questions from me. First of all, I did understand that in giving evidence you did actually concede that nose bleeds without an identifiable cause could occur, even though you said it was very, very, very rare. So, you do allow the possibility that every nose bleed without an identifiable cause is not due to suffocation?
A In a baby of this age there are two main causes.
Q Well I am sorry, but I wrote down what you said. "Nose bleeds without identifiable cause are very, very, very, rare"?
A Yes.
Q So, you are allowing that it could actually happen?
A Well, only in the sense that in medicine you cannot ever say nothing can ...
Q Well I think that is a very important point, is it not?
A Yes, in medicine
Q Never say never?
A Never say never in medicine.
Q Yes.
A I agree with that.
Q Yes, okay.
A No, I agree with that point. Never say never, yes.
Q And I am not a paediatrician but, if we think of cause and effect, I mean it does seem to me that if a very small baby had a nose bleed that that in itself would cause both choking and difficulty in breathing?
A It could if the blood I suppose if the blood, you know, that is coming out of the nose is originating further back.
Q Especially if it was bilateral?
A Yes. But if it was low down, the cause, and the blood was pouring, you know, through gravity, it depends on the position of the baby.
Q Yes.
A Yes. But you are right.
Q But by definition if a baby had a nose bleed from whatever cause, that in itself could result in the choking and difficulty breathing?
A It could do, yes.
Q Rather than it being part of another process?
A I think that is a fair comment, yes.
Q Yes.
A It depends on the position of the baby and so on.
Q Yes.
A And where the bleeding is coming from.
Q And if you do not mind, I would like to ask you one or two questions about this original publication?
A Yes.
Q Perhaps you could turn it up? I mean you probably know it off by heart, but I mean the first thing is that I do know a bit about epidemiology. Would you accept from me that this is not a case control study?
A The whole of it is not. The whole thing.
Q None of it is. It is a cohort study with what you allege is a control?
A Okay. I am not
Q Observational research can be done in two ways. One is you identify cohorts and investigate what happens to them; the other way round is you identify some factor – my factor is in drugs – so things that happen infrequently are difficult to prove in association. If I can give you an example, agranulocytosis is a rare phenomenon, so if you want to find out what drugs may responsible for that you have to compare the experience of that group with the experience of another group. So this is a cohort study; it is not a case controlled study. You observed a group because they allegedly had had previous ALTEs under suspicious circumstances?
A Yes, and then of those there are two groups within that.
Q What I would like from you is some more information about control groups, because actually in this type of study control groups are very important. I have looked at the data that I can find and it is not clear to me how well matched this control group was. For example, it appears from the little data there is that the ALTEs in the control group happened at a much earlier stage. What is not clear is whether there was an age match between the controls and the patients?
A We did not age match and we did not control for age, but the information that we had on the two groups was very similar but not identical.
Q It was not age matched, it was not sex matched?
A No, because the numbers were small, the data was unique in the sense of getting data on sufficient numbers of intentional suffocation in any study would be really difficult. Getting data on ALTE due to natural causes in any study would be difficult. So it was not a perfect match and it was not age matched or sex matched because the numbers were small. We sought a lot of advice, as you can imagine, about how we did this comparison and the questions you are asking were there – that is, how similar investigations were done on the two. Of course, we did not do covert surveillance on the natural group, so that was different. We did do physiological recordings on each side of each group and we did document events on both.
Q The other thing that is not clear to me is how much of the information in your observation group, your cohort group, came actually from taking histories from parents who were there with them? From what I am able to read, the information about the control group just came from the medical records?
A No, no – that is not quite right. Both the babies---
Q I am sorry, but information about the control children was obtained from their hospital and medical records?
A But they had also been seen by us clinically. We actually saw those patients; we brought them into our unit and took histories about the babies’ events. So the medical records, of course, were available from the referring hospital but we also spoke to the parents of those babies as we were investigating them. They came into our unit with these events and we talked to the parents about the events. You know, “Tell us about event 1, event 2, event 3” and so on. We also had the medical records from the previous hospital about those events, where doctors and nurses had asked the questions. But we did the same again; we asked them about the events. They came into our hospital for investigation.
Q I have to say first of all I think it is a very small study – do you accept that? – and it does not have an adequate control. The reason I am asking these things is because it goes to the weight of the association, on which it seems to me you are totally convinced on the basis of your study. Again and again we have you saying “This is my opinion of what happened based on my evidence”. Therefore, the strength of the weight of evidence is very important and certainly from my perspective you have a small cohort, you have a non-matched control and the difficulty, if you follow epidemiology, is the control can totally bias the result that you get. For example, some of the associations between, say, oral contraceptives and various forms of cancer, and it depends on your cohort as to what result you come up with?
A You are absolutely right. It is very difficult to get the kind of numbers that you would get with a drug.
Q You can make your control group much larger or you can test it against a variety of control groups. You can have six controls for every patient and that will improve the strength of the association, if there is one?
A But it was not possible in this case because we only had – is it 46? – controls in total who had undergone multi-channel physiological recordings to show that they had a natural cause, so we could not get any more cases to act as controls; we could not get any more controls than we had. We used all that we could.
Q I am sympathetic to that, but it brings me back to my original point and that is the weight that you can give to the findings, particularly what are, if you like, secondary findings has to be less?
A Yes.
Q I understood you to tell us at one stage that this was an association about which you were convinced because of the number of noughts in the P value?
A That is part of it – it is not the whole story.
Q Again, if I can just stick with that point, if this is a cohort study that is not a conventional way to report the results. What one calculates is relative risk and the very important thing you need to do is calculate – even if you get a significant P value it does not necessarily mean that it is a significant result because in fact there can be wide variation in the findings across one and then it really invalidates the result.
A These were all discussions which were held at the time.
Q But it is not on paper?
A No.
Q The data should appear on the paper?
A But this was in 1997---
Q I understand that. What I am saying is this is now 2004. It appears to me that your views about the strength of this association have not changed one bit?
A My views about the strength of this in 1997 were as I indicated when I gave the report in the year 2000. That is when I gave my opinions and those opinions then were based on this paper and my genuine understanding of its implications and what it meant at that time. Things have moved on a; lot, as you know, in terms of research and development since then, which is what you are saying. Then you say “But you haven’t changed your conviction in 2004 that you held in the year 2000”; that is, you are still concerned about the strength of the association and that is because although this paper was very important there was also the non-cohort studies, that is the case reported work, which was available then and more of which has been published since. I have not yet seen a paper for any case reports in which a baby of this age has had a nose bleed and a life-threatening event which are not due to intentional suffocation. I have not seen it. It has not been published.
Q If I point you to your paper, D2, and the Truman paper, which you have copied bits out of, if you look at page 11 somewhere, this is a document I take it that you have produced?
A It is.
Q The sentence within the Truman paper that you kindly brought to our attention is:
“Although these findings are certainly not conclusive evidence of abuse, we agree with Southall and his colleagues that the presence of fresh blood from the nose or mouth….. should heighten suspicion of suffocatory abuse.”
It seems to me, from the way you have given evidence and the way that you have reacted in this case that you agree that it is conclusive evidence of abuse?
A That is because, unlike Truman, we did have a group of babies who had the same events---
Q I have just pointed out to you and you have admitted that even by any standard the control was not adequate?
A I was saying it was not perfect – it was not perfect because getting perfect control data in this situation is well nigh impossible.
Q I do not disagree with that but what I say to you again is that the perfect study was never done but even if you had had six controls for every subject, age matched etcetera, observational data can only suggest possible relationships?
A And that is why I put the phrase “according to our research” in.
Q You are down to saying “ALTEs which are accompanied by nasal or oral bleeding are due to intentional suffocation”. You have not shown that?
A According to our research.
Q I do not even know that you have shown that. Again, you will correct me if I am wrong but my understanding is these infants were infants where there were concerns about whether their ALTEs had been due to some sort of abuse. Presumably, if that had been certain they would not have been in your unit, they would already have been the subject of some sort of child care system. So all you have shown is that these associations are true with subsequent occasions where the parent has tried to suffocate a child. So that is another limitation to your data. You have not shown a direct association; you gave evidence, it is in the paper, none of the children who you saw being suffocated or your surveillance saw being suffocated actually had nose bleeds?
A During the event.
Q Yes. I come back to what I have just said. The previous episodes with which there was connected an episode of nose bleeding, cannot have been absolutely categorically diagnosed as being due to suffocation otherwise they would not have gone on looking after their children. I presume you accept that?
A Yes.
Q So that is a further caveat that is not in here. There is an association between nose bleeding and ALTE in someone who you saw subsequently, in some of them anyway, who could have made an attempt to suffocate their child?
A And were not present in those babies who had natural causes.
Q It is the limitations of data that I am talking about, which I am not sure we agree about?
A I think you are right, that there are limitations of data. I cannot dispute any of what you are saying in the scientific analysis that you perform – I am not trying to do that. What I am saying is that when I wrote that sentence I was trying to point out that if you have an apparent life-threatening event without bleeding, that we have found that that group is in the suffocation group and not in the natural group; that the natural group did not have bleeding, any of them, and they were what we call the controls, making the bleeding issue very, very important in the difference between those events due to natural causes and those due to suffocation.
Q I can understand that it is a very high index of suspicion, but it seems to me that the way that you have presented your evidence, both in relation to the actions that you took and in relation to the evidence that you have given us today, claims a strength of association that has no uncertainty in it?
A There would be uncertainty. If, for instance, Detective Inspector Gardner had told me that there was an alibi, there would have been uncertainty in that and that would have been fine for me---
Q Can I just pick up that point then? Although you base a lot of what you say on this conversation that you allege you had with Mr Gardner where he gave you a lot of information, what the transcript says is:
“My recollection is that I told him that we had made checks and I did not elaborate on that what we had actually done.”
And I think it was Mr Coonan, who said:
“I have to suggest to you that your memory is at fault there and that what you did say to Professor Southall was that checks in relation to third parties had not been done and that to use your expression, which I suggest you did say to him, was that that was now too late?”
And you said “I do not recall saying that”?
A That is absolutely correct as a report, but I recall it. It is a long time ago but I recall that because that was the central issue, and I have already indicated here that if, for example, he had said “We checked and we can tell you for certain that Mr Clark wasn’t there”, I would have accepted that and I would have said “Right, okay, my contention is wrong”.
Q But even if he had said that, the fact that they had not checked his alibi did not mean that he did not have one. This is the issue; that you have made serious allegations, both in your report and also in this Committee, about Mr Clark. I do not think anybody takes dispute with the fact that you felt you should bring to the attention of the system the alarm bells that you felt were ringing in your mind about the episode in the hotel bedroom, but everything that has gone beyond that seems to be a quantum leap. You have had to concoct stories which, in your own mind, would allow Mr Clark to have been pivotal in what happened thereafter without, as far as I can understand – and you will correct me if I am wrong – any evidence to support those theories at all?
A If Mr Gardner had remembered our meeting four years ago, he would have remembered telling me that he had not checked Mr Clark’s alibi because when the first death occurred it was considered to be natural. He definitely told me that and I cannot prove that now, can I? It is impossible.
Q But it is still a quantum leap from that to making the allegation that therefore he must have been responsible for the death of Christopher?
A No, the trouble was Detective Inspector Gardner was saying then that he was not prepared to do it either because it was too late and too long ago.
Q Even so, in all the circumstances, including the ones we are currently engaged in, people are innocent until proved guilty?
A Yes.
Q So Mr Clark was innocent until somebody could bring actual information into the system such as that he was present in the Clark household on that evening, which you allege and which as far as I know there is no other information, that he was guilty?
A But there is the other side of this that if one accepts those babies were killed by smothering, which at the time was the case, and the mother is in prison for doing it and the event that occurred in the hotel she was not there, there was something wrong with the whole situation, there was something wrong and based on our work and the experience that we had with this I was raising that in my mind bleeding occurs simultaneously, so it could not have been Mrs Clark. Therefore, as those two babies had been found by a criminal court to have been smothered why could it not have been Mr Clark? That is what I was saying.
Q If you had, I mean, it seems to me that the evidence before us goes beyond that:
“I thought through the issue of whether there might be other evidence not seen or heard by me which makes it impossible or very unlikely that Mr Clark killed the two children. I remain of the view that other explanations cannot hold”?
A Yes. That was because I had been told by Detective Inspector Gardner that they had not checked the alibi and were not intending to do, so I could not see any evidence coming forth from that because he was telling me that it would not be any good or any use because it was too late, so it would not be able to alter my opinion any more. That is what I was really saying there.
MR TYSON: Nothing arises from that those questions, thank you.
MR COONAN: No, thank you.
THE CHAIRMAN: Professor Southall, that brings us to the end of this part of the proceedings. You may resume your seat. It is also a useful moment to have the lunch break.
We will start at 2 o’clock.
(The Committee adjourned for lunch)
THE CHAIRMAN: Mr Coonan, are you ready?
MR COONAN: Sir, we thought it would be helpful if I provided the Committee with
a transcript of the television programme. This is a document which was prepared at an earlier stage. There are a number of omissions and errors which have been the subject of discussion between the parties and the manuscript amendments have been inserted.
I understand that has been by agreement, so I apologise for the fact they have not been incorporated in typescript but it is fairly clear where the amendments are. I would be grateful if you could receive that at this stage.
THE CHAIRMAN: I think we are up to D3.
MR COONAN: Yes, thank you. (same handed) It has the practical effect that if you need to revisit the programme you can do it individually by not needing to watch it again.
THE CHAIRMAN: That is quite helpful. I was sitting at one stage this morning thinking that would be quite useful.
MR COONAN: If there are, and I do confess straightaway I have not looked at the manuscript amendments, if there is a problem about reading it then if you raise it we will do our best to deal with it.
MR TYSON: Can I confirm that D3 is an agreed document and that if you have got problems with the manuscript amendments it might be wise to ask our side because as
I understand the amendments were provided by my instructing solicitors and like my learned friend I have not actually troubled myself to look at the amendments.
THE CHAIRMAN: We will note that comment, Mr Tyson.
MR COONAN: Sir, that is the case for Professor Southall.
MR TYSON: Sir, it is now my turn to address the Committee on the facts of behalf of the Council and of behalf of Mr Stephen Clark. Sir, when opening this case I said at its heart this case is about Professor Southall's dogmatic belief in his own expertise which he brought to bear in a case in which he had no professional involvement but in which he intervened in a highhanded fashion largely on the basis of watching a programme on television. This is a case the facts of which, say the complainants are both astonishing and extremely serious.
We submit, having heard of all the evidence so far in this case, those opening remarks of mine still hold good. Professor Southall has not really changed his views at all, even with the benefit of hindsight. Nor has he apologised or expressed any regret over his highhanded actions. It appears that he remains convinced that he was right in just about everything he did in the course of this saga.
If, and I underline the word if , the case were ever to reach stage two that unflinching attitude may cause you some problems when deciding what to do concerning
Professor Southall's future registration.
Sir, can I start with two preliminary matters before I deal with the heads of charge that are not yet admitted. The first preliminary matter is central and that is this, the complainants have to prove the unadmitted facts. They have to prove them to the criminal standard, that is beyond reasonable doubt. The second preliminary matter is this, that in deciding the facts or the inferences from the facts that very properly can be drawn your assessment of the witnesses is, in our submission, very important. The principal actors in this saga are, Professor David and Professor Southall. I would ask you on behalf of the complainants to place great weight upon the evidence that you have received both in written and oral form from Professor David.
I submit that the Committee was very fortunate in being assisted by a witness of his calibre. He was clearly extremely abreast of all the research aspects in this case and the medico-legal aspects in this case. But, in our submission, his value as a witness went further than that, because his value as a witness is above all that he was fair. The supreme example, of course, of his fairness was the opportunity that he gave to Professor Southall to dig himself out of an embarrassing hole that he had created by writing his trenchant report without any kind of limitation or qualification. That is, of course, the document which is now well known in this bundle and it is in page 46. Can I remind you of the last paragraph of that. He said:
“My guess is that you did not insert a caveat like this simply because you were in a hurry to send it off. But, of course, it is possible that you take a much stronger view. I want to make sure that I fairly and accurately represent your views or your opinions and hence this e-mail.”
So there he is wanting to be fair to Professor Southall and wanting fairly to place his views before the Committee.
You may also think, sir, that Professor David's fairness came out in the course of this hearing where perhaps I was trying to encourage him to use some rather colourful and objectives to describe Professor Southall's actions but on each occasion Professor David preferred to use rather more measured descriptions than I was perhaps to trying to suggest.
In summary we would submit that Professor David's manner was deliberate, unhurried and fair, above all we say that he would not be bullied. But perhaps still the greatest of the undoubted respect for Professor David that all, I would submit, in this room will by now have, the greatest respect was shown by Mr Coonan in his cross-examination. What you may have been struck by, as were the complainants, was the brevity of such
cross-examination, coupled with the areas upon which no challenge was made to Professor David or his views. In short, that cross-examination was remarkable for what it did not ask rather than what it did ask or challenge.
In reality we would say that Professor David's evidence to the Committee remains unscathed and in that context I would urge you when you retire to read Professor David's important conclusions and comments in his care report which you will find, I am not going to take you to any detail, at C1, pages 82 to 87. I would urge you to read those when you retire. You will, we would submit, find them extremely helpful in coming to your conclusions on the remaining unadmitted heads of charge and in particular the important remaining unadmitted heads of charge, namely, heads of charge six, and eight. Six, of course, is the description of Professor Southall's admissions up to and including his involvement with Detective Inspector Gardner and head of charge eight relates to the report and the matters subsequent to that report.
About Professor Southall the complainants have to be less charitable. His witness box evidence, you may think, gave an insight into his personality that has brought him to be before you. He is clearly intelligent. He is clearly dedicated. But what he lacks, in our submission, is that old-fashioned word and that is judgment.
He appears to have approached, or he appears to approach the whole area of child protection with a missionary zeal. He gets impatient with others who do not see his point of view (which is always right). He also gets impatient with those who perhaps are seeing his point of view but might either not act upon it with sufficient speed. Equally you may think he gets impatient with those who see his point of view but have the temerity to reject it.
Another aspect of Professor Southall in this case relates to his attitude to the highly important duty of openness in child protection cases and the sharing of all information. You will recall his evidence that it was completely inappropriate that he was not given access to the medical records (Inaudible due to coughing) Yet his attitude to openness and information sharing appears, we would submit, to be all one way. For throughout this matter he kept hidden from the child protection professionals the involvement he says that he had and the help he says that he had from Professors Green and Meadow. He deliberately did not tell the senior social worker, the guardian, the guardian’s solicitor and, perhaps most importantly, Professor David about such involvement and that is one matter upon which now and on reflection that Professor Southall has to concede and did concede was misleading.
Whilst on the subject of witness and your assessment of them I would urge you not to forget the witness evidence of Dr Chipping. She had the doubtless difficult and challenging task of managing the highly complicated inquiries into Professor Southall's conduct of his child protection and his research work. On top of that you may think that she had the thankless task of attempting to police the terms of Professor Southall's suspension.
You will recall her evidence that she considered that Professor Southall's involvement in the child protection aspects of this high profile Clark case without her prior knowledge was in her terms:
“To say that I was disappointed is an understatement. I was astonished.”
First of all I am going to ask you to deal globally with heads one to six inclusive. These essentially deal with the period up to and including the interview with Detective Inspector Gardner on 2 June. Can I say right away, and it is important that the Council both accept and, indeed, assert that it is the duty of any doctor to raise concerns about child protection with the appropriate professionals. It is the manner in which it was done here, coupled with the failure to inform Dr Chipping beforehand that the complainants say fit into each of the three descriptions set out in head of charge six, namely that it was precipitous, irresponsible and an abuse of his professional position.
Can I deal with head of charges (f) and (g) in the context of head of charge 4. Head of charge 5(f) has been admitted. Head of charge 5(g) is not admitted, but head of charge 5(f) puts head of charge 5(g) into context. One can also, whilst looking at head of charge 5(g), consider at the same time head of charge 7(d) which is in similar terms.
I would submit to you that on Professor Southall's own evidence that forces the Committee to find head of charge 5(g) proved, for he told you that at the time of the Gardner interview it became a near certainty that his theory was a fact. Sir, there is something about this in the transcript on day five, page 51D, if I read that reference. It is a question by me in cross-examination where I said:
“By the time you had had your discussion with Detective Inspector Gardner is it fair to say that you were certain that your theory was really correct?”
And the answer two lines down is:
“Yes, that is right.”
51C. You will also recall in the context of head of charge 5(g) the Detective Inspector Gardner memorandum where the Detective Inspector used the word “adequate” to describe Professor Southall's views. That is a reference to in C1 at 18.
And looking at again the wording of 5(g), "you had a theory about the case as set out in Head 4 above, that you sought to present as scientific fact as underpinned by your own research". The words "... as underpinned by your own research" again can be seen by the way that the Professor put it to Inspector Gardner at the bottom of C18, and perhaps we could just look at that? At the bottom of C18 the Officer is recorded as saying in his memo.:
"Dr Southall has provided me with his CV and a copy of his published paper in respect of Covert Video Recordings of Life threatening Child Abuse. He states that his opinion re the nosebleed is reinforced by the findings within the report".
So, we would submit that the wording in Head of Charge 5(g) is amply supported by the evidence that this doctor has given to you coupled with what he actually said as recorded by DI Gardner in his memo.
It is perhaps here that is the best place to deal with Professor Southall's research and to reiterate the points which were largely agreed with which I put to him in cross examination.
I approach the issue of research with some considerable humility, knowing that there are or were at one time three Professors dealing with research in this room, but in perhaps layman terms perhaps I can put the concerns here.
Firstly it is far from clear that what Christopher sustained at the hotel was in fact an apparent life threatening event, because in Christopher there was no record of an apnoea, there was no colour change, there was no loss of consciousness and there was no unresponsiveness. And Professor Southall readily agreed that this event would not qualify as an ALTE in many of the research papers and in particular that used in the extremely large study in what they called the CESDI Inquiry, which is the acronym for the Confidential Enquiry into the Sudden Death of Infants, and the CESDI Inquiry definition you will find at C4 at Page 207.
Secondly, Christopher would not have fitted into the highly specialised group of 39 infants who underwent CVS in Professor Southall's "Paediatrics" article. This 39, or these 39, had been carefully and highly selected it was a highly specialised group and the essential qualities of these 39 were that they had previously had a number of ALTE's previously. I think the research paper indicates that the median was 7 and the range went from over 2 to over 80 as I recall.
Secondly these ALTE's, if I can call them that, were suspicious and highly suggestive of suffocation. Accordingly we would submit that it follows that, as there is a known association between suffocation and bleeding, one would anticipate bleeding coming from the mouth in any further ALTE that such an infant would or might sustain.
Sir, the control group was equally specialised, but as to whether it is properly called a control group or a cohort is not a matter which I personally can assist the Committee with. However, from a simple reading of the paper, it is clear that it was highly specialised in that each one of the control group required CPR and all had a medical reason for their alternate life threatening events; either respiratory problems or epileptic problems. Accordingly I would ask you to accept that, unlike in the first group who sustained ALTE's, in this group you would not expect bleeding from the nose and/or the mouth if any of this non CVS group had a further ALTE.
It is also right to record that Professor Southall's group of 39 who underwent CVS, in them only three in a previous ALTE had sustained a nose bleed.
Next, it is appropriate for you to record that Professor Southall in fact observed no bleeding in the course of the ALTE's that occurred during the covert video surveillance.
Next, it is right to record that Professor Southall had no proof that the previous ALTE's in his CVS group were in fact the result of deliberate suffocation.
Next, it is right that you should record that there is no research data that states that all nose bleeds in infants which are not due to coagulation disorders are in fact due to suffocation.
It flows from all this in our submission, and here I am relying on the evidence of Professor David, that it was faulty logic for Professor Southall to say that it follows that if an infant has an ALTE and if bleeding comes from the nose and/or mouth, it must be due to suffocation. One reason why it is faulty logic is the CVS patients were, of course, selected on the basis of that they had been suffocated already and so in a sense it is a circular argument.
It also follows, in our submission, from all this that one cannot generalise from the highly specialised research given in the "Paediatrics" article and apply it to Christopher, because one is generalising from a highly selected sample of CVS patients; a sample into which Christopher himself does not fit.
It is also right to point out that in fact there was no evidence of a nose bleed in either Christopher or in Harry at their deaths, when it was alleged of course that they had been fully and effectively deliberately suffocated.
So, jumping ahead a bit, both the statements we would submit on the top of Page 44 in the report of Professor Southall are far too dogmatic. Firstly, it is far too dogmatic for the Professor to say at the top of Page 44 that:
"Christopher suffered an ALTE with bleeding from both nostrils ten days before he died".
Secondly, we would say it is far too dogmatic for the Professor to say without qualification:
"ALTE's which are accompanied by nasal or oral bleeding are due to intentional suffocation according to our research".
"Our research", i.e. Professor Southall's research, in our submission does not justify such an unqualified statement. It merely shows, as he said in evidence as opposed to in the report, that intentional suffocation is likely to be the cause of bleeding from the nose and/or the mouth. And here I pray in aid the bit of evidence between the Chairman and Professor Southall about the unwisdom of never saying never in dealing with matters involving medicine or medical research.
And so it is worth considering, we would submit, not only in the context of Head of Charge 5(g) and 7(d) not only in the context of those heads, but also elsewhere what the Complainants say are the fatal flaws in Professor Southall's theory in respect of Christopher, or indeed Harry.
Can I make two or perhaps three simple points. There is and was no evidence that Mr Clark was at the house when Christopher died. The evidence at trial was to the effect that he was not there at the time and no one suggested otherwise.
Secondly, again Professor Southall's conjecture, which he dresses up as fact, also requires it appears for Mrs Clark to have been intoxicated both at the time of the death of Christopher and the time of the death of Harry.
We can see this by how Professor Southall put it to Detective Constable Gardner at Page 19 of C1. This is his note:
"Without discussing the case at length with Southall I did point out that there were similarities in both deaths and the fact that Sally was alone in the family bedroom on both occasions when the babies showed signs of distress. Without the benefit of the full facts Dr Southall put forward his thoughts on how Christopher may have been abused and subsequently killed by Stephen. On the night in question Stephen could have called home prior to attending the works function. He abused the child then left the house locking the front door and leaving Sally alone with the child. Sally being oblivious to what is happening because she is in an alcoholic haze and when she awakens she realises the baby has stopped breathing, panics and calls the emergency services. She can not admit her drinking when the death is investigated because that would imply she is not a responsible mother".
So, it appears in relation to the death of Christopher firstly that Mr Clark is such a cold blooded man that he can pop home, kill his only son and then go off all unconcerned to an office function and, secondly, that Mrs Clark has to be in such an alcoholic haze that she did not notice that Christopher was dead as a result of such an intervention until some time later.
Also it appears from the description that Professor Southall gives in relation to Harry's death that again that requires her to be in an alcoholic haze at that time, and one can see that from Page 45 at No. 5 in the report where Professor Southall says:
"From my experience in studying the effects of intentional suffocation, I have observed that the baby struggles violently, although silently, even at this age, before losing consciousness 60 80 seconds later. Death then requires persist suffocation for a further unknown time period. In recordings taken during the sudden deaths of a small number of infants at home, I have noted that the heart usually continues beating for around 15 minutes and maybe longer, with intermittent gasping breaths. The short timing described by Mr Clarke with respect to the kettle boiling could be compatible with Mrs Clarke suffocating the baby but the timing does not easily fit with this, unless the baby was dead prior to him going downstairs which of course according to Mr Clarke was not the case".
It appears that in order to fit Mr Clark into the death of the second baby it requires Mrs Clark not to notice, because say of alcoholic problems, that he had so suffocated the child whilst they were both in the same room and before he went downstairs to boil the kettle or whatever it was, and equally due to an alcoholic haze or otherwise not notice the distress in the baby whilst he was downstairs and continuing this struggling for life.
The point about it is this. You will be aware from the information given from the video, and you put such weight as you wish on that, that the Trial Judge excluded the evidence of Mrs Clark's problems with alcohol as there was absolutely no evidence that she had been drinking at the time of either death. The evidence was that she was now suffering from an alcohol problem, but of course that was completely irrelevant as to what she was suffering at the time of either death and thus completely irrelevant and rightly excluded.
It is quite clear that Detective Inspector Gardner recognised the flaws that I have outlined in Professor Southall's conjectures, even though they were presented as fact, because he described them in the terms rather dismissive terms that he does at Page 18(sic):
"The above illustrates how a well meaning but scantly informed person can theorise about what actually happened",
and it is quite clear that he advised no further action because no further action was in fact taken by the Police or the CPS.
It is also quite clear that the Guardian, Mr Mitchell, and the Social Worker, Miss Ash, also recognised the flaws that I have outlined. See, for instance, I will just give you the reference, C1, 27, which is the date of the meeting between those three individuals where they said that they were sceptical about his theory, and recall the evidence of the Guardian given to you at this hearing when, as it were, he defended the right of Professor Southall to make the allegations but he thought he was completely wrong on the facts. Pausing there a moment, he defended the rights of Professor Southall to make the allegations, but not knowing at that time, as he told us, that Professor Southall had been prevented by his employers from doing any further child protection work without prior leave.
Sir, it is in the context of these fatal flaws and Professor Southall’s dogmatic rejection of them that we would ask not only for head of charge 5g to be proved but also head of charge 6d also to be proved simply on a finding of 5g alone. Even if 5g was the only thing that you found in relation to head of charge 5, we would say that heads of charge 6a, b and c are proved and, of course, charges 6a, b and c relates to all the other matters, all of which have been proved.
I would also ask you, on behalf of the complainants, to look at the admitted heads of charge 5b and c in the context of your findings on heads of charge 6. You have to remember, of course – and will – that they are admitted, and you will recall the letters at C1/7 and C1/8. Perhaps I can just remind you of what was said at the letter at C1/7. C1/7 was the letter from Dr Chipping to Professor Southall which told him that:
“Until you receive written confirmation from myself you should not undertake any child protection work.”
We have the acknowledgement of that at C1/8. It is quite simple, the point the complainants make: that exchange of letters means what it says – not to engage or undertake any child protection work until he has received written confirmation from Dr Chipping. You will remember also – and I reminded you of it earlier – Dr Chipping’s reaction of astonishment when she found out that this professor was involving himself in such a high profile child protection case as the Clark case without consulting her first, let alone seeking permission. He did not even tell her.
You will recall, of course, that Professor Southall did not contact Dr Chipping before contacting the police Child Support Unit. He also did not contact Dr Chipping before meeting with Detective Inspector Gardner, which was done six weeks later. I would submit it is obvious that Professor Southall was at these meetings with police officers becoming involved in child protection work. Who did he ring up first? He rang up the Child Protection Unit, and that is clearly, in our submission, child protection work. His excuse that he did not understand that the Trust prohibited such involvement is, in our submission, just that – an excuse. We say it is groundless because the words mean what they say and he would know they mean what they say, bearing in mind Dr Chipping’s subsequent reaction when she did find out.
Equally groundless, in our submission, is the excuse that he did not contact Dr Chipping as at these stages he did not know how far it would get; he did not know whether his concerns were going to lead to anything, I think is how he put it. Again, that is a groundless excuse for not seeking written permission from Dr Chipping.
Looking at heads of charge 5c and 5d in the context of whether they justify the descriptions in head of charge 6, it is helpful, we would submit, for you to look at the three reasons given by Dr Chipping of why Professor Southall should have contacted her first in light of his agreement that he would not undertake child protection work, or new child protection work. You will recall the first reason she gave, that the Trust was halfway through an investigation which was being closely monitored and observed by the somewhat vociferous complainants. Secondly, she wanted to save Professor Southall from himself. Thirdly, and perhaps the most important one, is that there were serious child protection issues being investigated in relation to Professor Southall’s own personal conduct and that she had a duty to ensure that Professor Southall practised safely in this area.
Had, of course, Professor Southall discussed the matter first with Dr Chipping, it is clear, we would submit, that we would not be here today because Dr Chipping, as she made clear in her evidence, did not want to shut out these concerns because she considered, as do the Council, that he should put across appropriate concerns, but the way she put it, you may think, is the right way – that she herself could have approached the appropriate authorities with appropriate diffidence, such diffidence which was not shown by Professor Southall, and inform them that Professor Southall had concerns about the case in the light of what he had seen on a television programme and in the light of his own research. Such a sensible approach would have prevented the situation which occurred, whereby Professor Southall jumped in head first with his trenchant views adamantly held with certainty that certain trenchant views as a result of watching the television programme led to his conclusions which we have at head of charge 4, which are very important conclusions – and serious conclusions. With respect, we would adopt the description, possibly, given by the Chairman earlier that to leap to such views was a quantum leap dependent on the fact that he had only seen a television programme.
It is difficult to imagine more serious allegations being made and it is still important for the complainants to understand how a medical diagnosis that Mr Clark had deliberately suffocated his son was being made without any medical data at all and just by watching, essentially, a television programme and based on his own research. The fact that an ALTE had taken place was clearly a medical diagnosis and clearly he had a perpetrator. The fact that the ALTE was due to intentional suffocation was also clearly a medical diagnosis and the identity of the perpetrator was clearly, in our view, a medical diagnosis following the medical facts, because the crucial medical facts here, which the professor seized on so enthusiastically, was the fact that he believed the nose bleed was due to intentional suffocation. Bearing in mind that, he applied that to the other medical facts which he did not know and could not have known.
In short, for all those reasons, the complainants would ask you to find head of charge 5g proved and the whole of head of charge 6 proved. In very brief terms, we would say head of charge 6 should be proved firstly because of the extremely serious nature of the allegations which were not backed up by proper data, unless a description of the data is television and telephone calls. Secondly, the certainty with which these views were being expressed, again, on such little data and, thirdly, the failure to contact Dr Chipping.
If I can turn to head of charge 7 with head of charge 8, can I make the point that this deals with Professor Southall’s report and its aftermath. It is important to note that these heads do not deal with Professor Southall’s initial involvement with the local authority and its section 47 investigation. I know allegations are made against Professor Southall in relation to his meetings with the guardian and the social worker on 25 July, nor in relation to his attendance at the statutory meeting a few days later, because attendances at those meetings were entirely appropriate, bearing in mind the local authority was planning, in dealing with its statutory duty under section 47 of the Children Act, and bearing in mind such a premise had been sanctioned by Dr Chipping, as she told us.
One can note in passing, in relation to the minutes of those meetings and, indeed, what Detective Inspector Gardner recorded. I would urge the Committee to be extremely cautious about accepting Professor Southall’s evidence about what occurred at those meetings when that contradicts or is not expressed in the written records which you have, because all these written records were contemporaneous and Professor Southall either took no notes or has destroyed such notes of those meetings that he did take, and thus he is relying on his memory some four years after the event in order to contradict or to gainsay on occasions what is said in those memoranda.
It is also right, because it is clear from what is said in those memoranda, that he told neither the social worker or the guardian at the first meeting, the child protection, nor the strategy meeting on the second child protection, that he was prevented from carrying out child protection work without permission of the Medical Director.
Moving on slightly with the chronology, it is clear from Professor Southall’s understanding of the strategy meetings, that he was going to get some information once the leave of the care court had been obtained for him getting that information. We need not really go to it but it is on page 32 of C1, where he said that the guardian’s solicitor said he could not give him anything now but he would get leave from the Court for him to see certain papers and that might be possible (said the guardian’s solicitor). Professor Southall indicated that he was prepared to give his view once he had the full facts and clarified he would be happy with the information about the nose bleed.
Sir, it was suggested by a Committee member at one stage of this hearing that it seemed rather unfair that Professor Southall was not given the medical data. I would submit there are two answers to that. Firstly, one has to look at the court order itself. That is an order that we can see at pages 100 to 101. The crucial things about this court order are the two lines after the words “Before the Honourable Mr Justice Connell”, and these words are:
“Upon reading the correspondence from the Solicitor on behalf of the Child and the letters of consent by the other parties.”
It was thus agreed by all parties, by the solicitor for the child, by the local authority and by those representing Mrs Clark and by those representing Mr Clark – all parties agreed that Professor Southall should not get sight of the care papers, and all parties agreed that the appropriate way to deal with these rather startling and trenchantly expressed views was to get him to put them in writing as areas of concern and for those views to be dealt with by a further report from Professor David.
Thus we had the letter from the child’s solicitor at page 35, where Professor Southall was given, as it were, the terms of engagement where, as he said earlier today, it was clear that he was not going to get the papers. We have also seen at page 36 those terms of engagement were amended slightly, whereby the interview between Professors David and Southall was not going to be chaired by the guardian’s solicitor. Again, the important thing about that is that that amendment of the order was agreed by all parties. As is recorded at page 36, Mr Wheeler, who is the solicitor for the child, was aware of the parties’ views.
Professor Southall may have felt it completely inappropriate (in his own words) that he was not given the medical material, but it is right to point out that at this stage first of all it was on the basis that all parties agreed that he should be asked to outline his concerns and secondly, of course, he was at this stage suspended; thirdly, of course, at this stage (because we have read the material), all were pretty sceptical about his theory n the light of what I describe as the fatal flaws (but no-one else has). So if you have a professor who is suspended and the reason for the suspension, as all knew, was because of concerns arising out of his child protection work, if you have a professor who was giving a theory about the case which involved difficulties on the evidence in that there was no evidence that Mr Clark was anywhere but the office function at the time Christopher died, it is right, you may think, that caution be expressed and how much of the papers he should say. I emphasise again that that is a course of action all parties should take.
Of course, faced with the fact that he was not going to get the papers as he wanted, as the professor accepted earlier, he then had two options. He could say “Well, I can’t assist you because I can’t see the papers so I can’t give me definitive view”, or he could have said
“I will assist you but, of course, my views would not be as valuable as they would otherwise be because of the limitations, namely that I have not seen any medical material”.
The central criticism of the Council of Professor Southall's actions is he chose neither option. Neither refused or qualified.
He also, in our submission, went further than merely outline his points of concern for the benefit of Professor David, that I put in quotes because that was what he was asked to do in the solicitor’s letter instructing him:
“This is on the basis that in advance of any such meeting”,
that is a meeting between Southall and David,
“You outline in writing the points of concern you have as a result of your interest in this case.”
We would submit that he went beyond merely outlining his points of concern and into and prepared a medico-legal report.
We say he prepared a medico-legal report by simply looking at the document, how it is described and how it is set out. One can see looking at page 42 that he is setting out: who he is, Professor Southall; what it is, a medical report; who it is for, a firm of solicitors; what it is on, the Clark family. Then, as ever in medico-legal reports, it sets out first of all the source of information that he has. Here he sets out on the first line he observed a television programme and now setting out first of all his source, and, secondly, the history arising from his source. He sets out the history over the next two pages, then having set out the history he then, as is customary in medico-legal reports, deals with the comments. Then, as is customary in medico-legal reports, he deals with other issues. Then, as is customary in medico-legal represents, he says in conclusion and then, importantly, right at the bottom he says; “I declare that the contents of this report are true and that they may be used in a court of law.” Then he signs it and, again, giving his professional title of Professor of Paediatrics. The layout is the classic layout of a medico-legal report. If he has more information, he says he usually does, he sets out more information but the fact that he has not got and that the format of this document from its description as a medical report, down to its statement of truth at the end and that it may be used in a court of law, the format is of a medico-legal report and, indeed, it was in effect a medico-legal report, in our submission.
Having deliberately decided to set out his concerns in the form of a medico-legal report then certain consequences follow, in our submission, from choosing to adopt that formula and that format. In particular the consequence follows in terms of the guidance given to the medical profession and other on what should and should not be in medico-legal represents. We went through this when I cross-examined Professor Southall just now. So it ought to be fresh in your minds, so perhaps I can give you references, the reference was to the Williams article at C4 at page 346 at (a) and there you will recall that the Williams, which was in the house magazine of paediatric childcare people, that guidance stated in terms:
“That does not mean that experts should proceed to give an opinion without reference to their source of information and experts should always be alert to the fact that the information provided may have been selective. If experts feel their opinion is not properly researched, as they suspect they have been given insufficient data, then their duty”
I underline that word,
“…then their duty is to say so and indicate that as a result the opinion can be no more than a provisional one.”
He breached his duty. His unambiguous duty to point out the poverty of the data upon which his opinion was so strongly expressed.
Secondly, we get the guidance given in Mr Justice Wall’s handbook and there is two items of guidance that I put to the Professor and I rely on in closing, C4 page 373, basically guidance on expressing an opinion on a fact when you do not know anything or do not know much. This guidance is at paragraph 5.4 at page 373, it reads:
“You should, however, be very cautious when advising a judge that in your opinion a particular event occurred.”
So what the Professor has done, he has advised that, and we would say to a judge because he wanted this information to go to any judge trying this case, he advised in his opinion
a particular event. The particular event, of course, was that an ALTE had occurred a few days before Christopher's death. In all the circumstances, as he understood it, of that ALTE indicated that it was Mr Clark rather than Mrs Clark who was responsible.
So that the guidance reads:
“You should be very cautious when advising a judge that in your opinion
a particular event order. You should do this only if you feel you have all the relevant information and that the expression of such an opinion is both truly within the area of your expertise and a necessary part of your decision making process. The judge will have to decide the question on all the evidence in this case, including the oral evidence given in the witness box. You will not have access to all of that information and the expression of a categorical opinion which may be invalidated by material not within your knowledge will, at the very least, substantially devalue your evidence.”
Wise words of caution accepted by Professor Southall when I put to him wise words of caution which he has completely ignored.
Equally, he completely ignored the wise words given by Mr Justice Wall in this book, chapter ten at page 381, at paragraph 10.5 dealing with discussions with others about the case:
“What court is an anxious to prevent is any unrecorded, informal discussions between particular experts which are either influential in, or determinative of their views and to which the parties to the proceedings, including, perhaps, other experts do not have access.”
Clear, unambiguous guidance, you may think, though Professor Southall did want to quibble about the wording, but I suspect he did concede that the position he found himself in with vis-à-vis Professors Green and Meadow and their involvement did, in fact, fit squarely within the guidance given in 10.5. Even if he did not agree that their involvement did fit within that guidance, I would submit it did. Clearly these were unrecorded, informal discussions which ought to have been recorded, ought to have been made formal, ought to have been on the record and ought to have been disclosed so that other parties to the proceedings would have had access to them for the reasons there given and for the reasons also accepted by Professor Southall that in child protection one of the vital things in order to protect a child is openness and the freeway of information.
Sir, it was clear that there were breaches of the ground rules, if I can put it here. In relation to head of charge 7 the outstanding matter which requires to be proved by the complainants is head of charge 7e and, in particular, the second half of 7e. I will not go back on the wording that I used and will continue to use, but one of the truly astonishing aspects of this case is that Professor Southall wrote a medical report without access to any primary medical information whatsoever and he wrote it about extremely serious matters and were the public at large to know, in our submission, that it is possible for a Professor to write a medical report without access to primary medical material that accuses someone of a double murder and that that is not a practice that this Committee finds astonishing, then, in our submission, that would be sending out all the wrong messages to the public about how medics and, in particular, paediatric specialists should be behaving in matters, very sensitive matters of child abuse where there is, of course, considerable public concern as to is there paediatric specialist hiding round the corner seeing whether you are behaving appropriately towards your own child. I might be putting it a bit high, but what I really mean by this is matters of paediatricians making accusations of child abuse are extremely concerning to the public. It must people extremely concerning if the public were to hear, and it has heard here, that a paediatrician has written a medical report over matters of child protection accusing a man of being ultimately flagrant in child abuse, by not only abusing his children, but killed two of them without access to any primary medical data, that is, we would say, if you find head of charge 7e proved, as we would urge you to do, and that of itself is determinative of the descriptions given to it in head of charge 8; irresponsible, inappropriate, misleading.
Sir, the kind of medical material to which reference was made, the truth of which Professor Southall did not know, or could not have known, includes references to in page 43 of his report to the lower respiratory tract infection. It includes reference to the torn frenulum. It includes reference to the new blood, the old blood. It includes reference to the bruises. It includes reference to the rib fractures. The possible brain injuries he had. The possible spinal cord problems. The matters about Harry relating to his arms. The matters relating to petechial haemorrhages. The matters relating to Harry’s breathing.
All of these are matters which the Professor has set out in his medical report as matters,
it appears, of medical fact and which, we would say, the truth of which he could not have known and did not know. It is simply not good enough for him to say that he confirmed or corroborated these matters by virtue of undisclosed hidden telephone conversations with either Professor Green or Professor Meadow.
He should for a start have confirmed or disclosed their involvement, but anyway that still does not get to the key of this matter; he was still reporting without access to the medical records. Just mainly to support himself with a bit of hearsay. So it does not answer the charge at all that he dealt with matters the truth of which he did not know or could not have known merely to say: “I sought to confirm it with a few telephone calls”, that is simply not good enough and is bad.
Let us look at what he said he needed. The best check list is one, again, that was put to the doctor this morning because it comes out of his own word and that is at page 18, the check list that he gave to Detective Inspector Gardner where he said, it is recorded in the memorandum:
“However Dr Southall said he is not aware of the full facts and did state that he would need to know exactly how Christopher suffered,”
a medical matter,
“the difficult in breathing,”
a medical matter,
“the amount of blood,”
a medical matter,
“the necessity to resuscitate,”
a medical matter,
“visual observation and what records were made.”
He had none of these things. He said that he wanted these things in order to give an appropriate view. Notwithstanding he knew he did not have them he then went on to write the strong report that he did and, even further, when it was pointed out to him that he did not have any medical data or data he did not retract, astonishingly, again I use that word, astonishingly, he hardened his view and said it is a matter beyond reasonable doubt.
There are, of course, other items of concern in the report. The other items of concern in the report, if I can just highlight them, are, for instance, the two to three lines at the top of page 44 with which we have dealt, namely the dogmatic assertion that Christopher had suffered an ALTE and the ALTS which are accompanied by nasal and oral bleeding are due to intentional suffocation.
Then it is, of course, a matter of concern that, without knowing of any of the facts or any of the evidence, that the doctor accused Mr Clark of behaving badly by not calling 999. The fact, he said, was a medical fact of great importance. As he put it in his report:
“The police did not verify Mr Clark's statement that he had alerted medical staff in the hotel. In my experience I would be extraordinary for a parent not to call 999 or do everything possible to obtain medical assistance if their first young baby was unable to breathe properly and had sudden bleeding from both nostrils. Extraordinarily, that is, unless the parents had deliberately caused the bleeding as must, in my opinion, have been the case here.”
There are two points I would like to make about that. Firstly, it was an incident which of its very nature was in a sense sorted, if I can use terrible word, by Mr Clark in that a problem arose and with the application of water he managed to sort it and it did not appear that the child had any further suffering and was perfectly well by the time the mother returned.
Secondly, and crucially, there is an allegation here relating to whether or not Mr Clark alerted medical staff and the nature of such alerting. What one can say here, sir, is that this illustrates the particular difficulty that Professor Southall found himself in, because he did not know the truth and could not know the truth for what the evidence was at the trial in relation to any medical assistance that was called, or any medical assistance that arrived, or any medical assistance that was subsequently received. He did not know. He simply could not have known that. And yet without knowledge of what in fact was done and the evidence of what in fact was done, he accused in that Paragraph 3 my client of being the one who deliberately suffocated Christopher by using such strong language, unqualified in any way, "... as must, in my opinion, have been the case here". It is extraordinary and it illustrates perfectly the dangers of condemning someone without access to primary data; whether primary data relating to what Professor Southall would call forensic data, or primary medical data.
Then, of course, there is another aspect concerned which is the matter of IPH and that in Paragraph 6 on Page 44, as Professor Southall confirmed when I cross examined him, he essentially dismissed the possibility of IPH being a medical diagnosis here. Dismissed the possibility, you may recall, without even thinking and without having any knowledge of, for instance, the post mortem report. And he dismissed it despite the fact that a few weeks earlier he had specifically sought or would not be drawn on the issue as to whether IPH was or was not a possibility, because as he put it when he was asked about this on Page 32 in the Strategy Meeting:
"Patrick Wheeler asked whether IPH had been considered. Professor Southall felt he needed more evidence and would need to see the post mortem finding".
So, he is rightly cautious at the Strategy Meeting. He was rightly pointing out that to give a medical diagnosis, or indeed to exclude under a differential diagnosis basis to exclude IPH, he would need to have more evidence and would need to see the post mortem. Yet, come the report, no such qualifications. He had not seen the PM, he had not been given anything and yet he is able absolutely as a medical fact to dismiss the possibility of IPH.
There is also various aspects of Professor Southall's own evidence relating to his report which the Complainants find particularly concerning, and I will cite two. First of all he said words to the effect that, "To have dealt with the medical material would have flooded people with unnecessary information", and the quote for that when he said it I have written down as at Day 5, Page 15 at D. So, "The medical matters would have flooded people with unnecessary information".
Secondly, and in effect related to that, he said words to the effect that, "Having the paperwork would have been ideal, but it would not have changed the strength of my opinion", and he said that on Day 5 at Page 23.
The complainants say that it is entirely inappropriate that he should have said either of those quotes, and his dogmatic certainty in the fact that he was right and everybody else was wrong enabled him to flout with impunity, we would say, basic medical matters that require to be considered before reaching a diagnosis and particularly a diagnosis as startling and as serious as this one.
Of course, we know as a matter of parenthesis that Professor Southall did not add anything knew to the debate. Mr Clark's role in the nose bleed and in the subsequent murder of each child was clearly considered by the Police because it is a fact that he was arrested by the Police in respect of each murder.
Professor David set out the possibilities or the possibility of Mr Clark's role in the nose bleed clearly in his report. That was the report that went to the Criminal Court, and he set it out in his report as he set it out for your benefit at Page 63 of C1 where he said:
"At the time of my first report, it seemed to me that there were a number of possible explanations for Christopher's nose bleed, and the possibility that it was the result of Mr Clarke suffocating Christopher, which I considered carefully, was the very first [item] on my list",
and he sets out at Page 63, which you will doubtless remind yourself of when you retire, all the possibilities that he there considered and why he considered and rejected them.
And, of course, nothing was new for the reasons set out in Page 62 of Professor David's report at Paragraph 30 and I will read it:
"In short, I agree with Professor Southall ..." (this is Professor David writing) "... that nose bleeding resulting from attempted suffocation is likely to be immediate. That was my view at the time of preparing my first report. The views of Professor Meadow, Dr Rushton and Professor Berry are plainly very similar, and I have also spoken to Professor Berry on the telephone recently, and he too agrees that bleeding from trauma due to deliberate suffocation is likely to be immediate. In short, Professor Southall has added no new information at all. The 1997 paper to which he has referred was available at the time the original reports were written, and was familiar to everyone working in this field".
Sir, I now come finally to what we would say is the most serious aspect of this case and that is the admission by Professor Southall of the matters alleged at Head of Charge 7(g). Head of Charge 7(g) says:
"When given the opportunity to place such a caveat in your report you declined, by faxed email dated 11 September 2000, on the basis that even without all the evidence being made available to you it was likely beyond reasonable doubt that Mr Clark was responsible for the deaths of his two other children".
Can I just remind you, if after these many days you need reminding, of precisely what Professor David said in his e mail which is at Bundle C1 at Page 46:
"Please could I put a question to you?
As I am sure you can imagine, there is a good deal of data about this case, both medical and circumstantial. As you know I cannot disclose any details at all",
and pausing there a moment it is clear in my submission that Professor Southall would have known first of all that there is a great deal of data and, secondly, that Professor David was not able to disclose it to him because it was wrapped up in the Care Court:
"I appreciate that for all the reasons that you set out, you have great concern about the possibility that Mr Clark rather than Mrs Clark killed the children.
My question is simple. Do you accept that it is possible that there is either medical data, or circumstantial data, or both, that could in fact largely or even completely exclude the possibility that Mr Clark killed either of his children?
I feel I have to ask this question because nowhere in your report did you say something like 'These opinions are based on the very limited data available to me in the television programme. I have not had the opportunity to study the papers in this case and I accept there may be data available that negates or is inconsistent with the opinions expressed here'.
My guess is that you did not insert a caveat like this simply because you were in a hurry to send it off, but of course it is possible that you take a much stronger view. I want to make sure that I fairly and accurately represent your opinions and hence this email".
In my submission, the sending of this e mail was a generous and helpful act by Professor David, realising that a professional colleague had said too much without qualification and giving him a lifeline.
And, again, another of the extraordinary things about this case was that that lifeline was deliberately cut off by the recipient and ignored, because we then come to Page 47 which is the reply after, I have to say, a conversation about this matter and the importance of putting a caveat in which for your notes and for you to consider when you retire you will find at C1 at Page 80 and 81. The reply from Professor Southall to Professor David is this:
"I had thought through the issue of whether there might be other evidence not seen/heard by me which makes it impossible or very unlikely that Mr Clarke killed the two children. I should say and should have put into my report that I had undertaken a number of discussions with people involved in the case after seeing the video: namely Mr Gardner, the guardian and the senior social worker and had asked questions relating to other possible but extremely unlikely mechanisms for the bleeding and scenarios which would enable rejection of my opinion. I received negative answers to these questions".
Pausing there a moment, sir, I make the obvious point that there is no reference to either Green or Meadow there:
"These were in particular whether any disease had been present in the first baby ..."
Pausing there he is saying that he is relying on non medical people, namely the Social Worker, the Guardian and a Police Officer, to confirm:
"These were in particular whether any disease had been present in the first baby that might have caused the death that was not reported on the television program".
And again pausing there for a moment, you have seen and will see when and if ever you want to go through the intestacies(?) of D1, which is Professor David's evidence to the Criminal Court, his concerns that this child was very ill at the time of his death and his concerns that the bloods were abnormal and, in particular, the sodium level. And you will find in D1, at Pages 16 to 20, full discussion by Professor David of the blood results and the analysis by Professor David of how as a result of those bloods this child was extremely ill at the time.
That again illustrates the problem that Professor Southall has found himself in and about which he seems to ignore, because he says as I have said:
"... mechanisms for the bleeding and scenarios which would enable rejection ... I received negative answers to these questions. These were in particular whether any disease had been present in the first baby that might have caused the death that was not reported on the television program".
So, he relies on the Social Worker to tell him the answer to that:
"Also any other information relating to the case that made Mr Clarke's involvement impossible. My only smallest reservation relates to an extremely unlikely prospect that both parents are implicated in the deaths. I have never seen this and therefore rejected it. Thus there can, in my opinion and beyond reasonable doubt, be no explanation for the apparent life threatening event suffered by the first baby which would account for the bleeding other than that the person with the baby at the time caused the bleeding through the process of intentional suffocation. The subsequent unexplained deaths of the babies with other injuries makes it likely beyond reasonable doubt that Mr Clarke was responsible. I am not used to giving opinions without all of the evidence being made available and feel vulnerable over my report. However, based on what I saw in that video alone and my discussions with the police officer, social worker and guardian, I remain of the view that other explanations cannot hold. The evidence of the family friend is particularly important".
So, "... based on what I saw in that video alone and discussions with the police officer, social worker and guardian", this distinguished Consultant Paediatrician accuses Mr Clark of being responsible for the deaths of his two children beyond reasonable doubt.
It must follow in my submission that, having merely read that exchange of e mail, that each and every aspect of Head of Charge 8 is established simply on the basis of Head of Charge (g) alone.
It is no wonder, you may feel, that Professor Southall felt vulnerable, but the real question for you is having acknowledged that he was vulnerable why did he not put in a caveat? And the answer is he did not put in a caveat because he was sure that nothing no other information would help him at all.
And so looking at Head of Charge 8 finally, sir, you will see that it is pleaded:
“Your actions described in Head 7 above were individually and/or collectively ...”
So either inappropriate, irresponsible, misleading and/or an abuse of his professional position. So you have the task set to you by head of charge 8 of looking at each of these subheads of 7 individually to see whether they fit in all those descriptions and collectively to see whether as a result of the data they fit either of those descriptions and the complainants’ case is that both individually and collectively, for all the reasons that I have set out, that each and every one of the serious matters set out in head of charge 8 is and should be proved to your satisfaction.
Can I finally say one small thing and it is this, that it is clear that the matters set out in the unadmitted heads of charge, if you find them proved, are capable of amounting to serious professional misconduct.
Those are the submissions of the complainants.
THE CHAIRMAN: Thank you. In view of the time, I think what we will do is take a 20-minute break.
MR COONAN: Sir, I was just wondering, because there are a number of things I do need to consider with my client and my solicitor, whether I should begin tonight or start tomorrow morning. I am not going to be as long as my learned friend, as far as I know, but I am aware of the time. I am content to start tonight but I may not finish.
THE CHAIRMAN: I somehow thought you might say that. The only reason for not immediately agreeing – because I think we should give you all the assistance you wish – is I think it would be unfortunate if we were not to reach the end of stage 1 by tomorrow.
MR COONAN: I understand.
THE CHAIRMAN: Would it assist if we come back when you have had a chance to at least have considered some of those pints? I would be prepared, for example, in these circumstances, to run on until half-past five tonight if that would accommodate you.
MR COONAN: I may be able to do it but I may need more than 20 minutes to consider it.
THE CHAIRMAN: Why do we not come back at ten-past four/quarter-past four? Quarter-past four will give you more than half an hour and at that stage you can tell us whether you would be constrained by starting tonight or not.
MR COONAN: I am eager to press on, but I think it would be helpful if I have a slow pause.
THE CHAIRMAN: Let us plan to start again at 4.15. If that turns out to be insufficient time, then you can send us word.
MR COONAN: Thank you.
(The Committee adjourned for a short time)
MR COONAN: Sir, somewhat unusually, I have an application to make and it is this, that you should invite Professor Southall to be recalled to deal with a very short matter which – and I put it in no other term than this – is causing him some concern, which arises principally out of a number of questions you were putting to him earlier today. There is no complaint about the questions but let me make it clear at the outset that it is more the content of the material which was being covered.
I have taken the liberty in the last few moments to alert my learned friend to this point and that is one of the reasons as well that I sought a slightly longer adjournment this afternoon, because I was aware that there was a matter of some concern (if I can put it this way) and I wanted to deal with that. I have taken instructions and in the limited time available it may well be – and it is entirely a matter for you, subject to any advice from the learned Legal Assessor – as to what approach you adopt,. But I would invite you, in the interests of fairness, to receive that evidence. I do not think it would take long. I do not know whether it is opposed but I think it is better if I do not say any more about it for the moment. You have the principle of the application before you.
THE CHAIRMAN: Mr Tyson?
MR TYSON: The Council would oppose any application now that you should receive any further evidence, bearing in mind the stage where we are now at and bearing in mind the fact that the criminal procedure applies in these cases. You will not need reminding first of all that my learned friend has closed his case and, secondly, that I have already made by closing submissions. I accept as a matter of law that under Rule 50 it is possible for you to receive evidence at a lat stage but the fact that it is legally possible for you to receive oral information at this stage does not mean that you ought to exercise your discretion so to do. It would be extremely unfortunate and open up a whole new area of the evidence, having to know what it is about, having to cross-examine, re-opening the issue, my closing speech etcetera. He has had his opportunity to comment, he has been represented by leading counsel; leading counsel has closed the case. In my submission, for all those reasons, the matter ought to be left at that stage, but I am repeating myself to say that the criminal standards apply.
When you are considering the question of fairness, of course you ought to consider the fairness to the complainants as well as fairness to the defence. In my submission, the case having been closed, me having put my closing speech in, it is unfair that at this stage matters relating to evidence should now be opened without agreement.
THE CHAIRMAN: Mr Coonan, I am slightly baffled by the fact that there was a lunch break between Professor Southall finishing his evidence and you agreeing that the defence case was closed.
MR COONAN: Yes.
THE CHAIRMAN: I am just slightly confused that these issues have not come up sooner.
MR COONAN: Can I say this? There was clearly an issue during that period but I am afraid that I was having to concentrate on other matters, in particular the preparation of the speech for this afternoon. The matter, I think, has developed during the course of the afternoon. I appreciate that I closed my case immediately after the luncheon adjournment.
Sir, the fact that the case is closed is, of course, of itself, because I think my learned friend has accepted as a matter of law it is no bar to receiving evidence. Indeed, it is a matter of parallel with the criminal proceedings that, of course, evidence can be received at any time before retirement. Of course, this is not a set of criminal proceedings and it is ultimately a question of fairness. My learned friend is quite right to say that a balance must be struck between fairness to the other side as well. I do say, of course, that if other evidence emerges from Professor Southall or, indeed clarification is required, however it may be, I would not be able to stop my learned friend making any further submissions on that evidence to you, which would preserve the balance of fairness.
THE CHAIRMAN: Legal Assessor?
THE LEGAL ASSESSOR: As counsel says, it is an unusual situation. The case has been closed; there has been a gap and then a lengthy speech by counsel for the GMC. It has this effect, that having ceased his evidence the case has been closed the professor has had the chance to speak to his counsel, which would not be the normal situation between cross-examination and examination-in-chief. So it is a clear departure from normal criminal procedure.
Of course, I did give advice last week about Rule 50 about evidence which would not be admissible in the criminal court and that its reception is desirable in the view of the Committee to carry out due inquiry.
There is no apparent criticism now of the questions that were put, and it seems to me that they questions were questions by one expert to another to establish really several scientific points. If there had been objection then to the nature of the Chairman’s questions it could, of course, have been raised then.
It is a question of fairness. As Mr Tyson says, it is a question of fairness to both sides.
It is a clear departure from procedure and it does have implications, because dependent on the process are we going to go through more cross-examination, further questions from the Committee, further submissions from Mr Tyson, a request for further evidence? We do not know where that course will take us. It is a matter entirely for the Committee but they must bear in mind that the have to be fair to both sides.
THE CHAIRMAN: Do either counsel wish to make observations on the Legal Assessor’s advice?
MR COONAN: No, thank you, sir.
MR TYSON: No, thank you.
THE CHAIRMAN: The Committee will therefore retire in order to consider its response. Strangers will withdraw.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE COMMITTEE DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READM ITTED
THE CHAIRMAN: Mr Coonan, the Committee have carefully considered your application under Rule 50 of the Professional Conduct Committee Procedure Rules for Professor Southall to be recalled to the stand to deal with a matter that has caused him concern following questions put to him by myself during Committee questions.
The Committee have also considered the submission of Mr Tyson, who said that Mr Coonan had closed his case and that he, Mr Tyson, has already made his closing submission on behalf of the GMC and Mr Clark.
The Committee have borne in mind the advice of the Legal Assessor, who stressed the importance of fairness to both parties involved.
The Committee have been mindful of the interest of the public and the interests of Professor Southall.
In all the circumstances, the Committee have determined that it is fair and desirable to allow Professor Southall to be recalled under Rule 50 of the Committee’s Rules of Procedure. Accordingly, the Committee accede to your application.
I think we will need to ask Professor Southall to take the oath again as we had released him.
PROFESSOR DAVID PATRICK SOUTHALL, Re-sworn
Further examined by MR COONAN:
Q I am only going to ask one question. Professor Southall, you have heard the application that I made to the Committee and the Committee’s decision. Can you articulate, please, for the benefit of the Committee, what your concern now is about this particular aspect of the subject matter before the Committee?
A Yes – thank you. It followed on to the question of the Chairman about the nature of the research paper. I got the impression, and maybe this is incorrect, but I got the impression that you thought that I was taking my data in those 38 smothered babies and the 46 natural cause babies, looking at the comparison between them and producing case control-type data; that I was extrapolating that to mean that every baby in the future out there, if they had a bleeding nose and an ALTE, was being suffocated full stop, that is to say that I would take that data from a paper and extrapolate it to every other baby in the future who might have a nose bleed and ALTE and say that they definitely, as a result of our research, were due to intentional suffocation. I just got that impression, that maybe this is my fault for the way I had expressed it in my report, where I had used the phrase “according to our research”. This can be taken a number of ways, but the reason I kept stressing that “according to our research” was a caveat was that I was implying that that research data was relevant to the research data of those patients and that I then had highly significant and specific findings, namely the bleeding in the ALTE, but that that would never be on its own enough for me to say that any baby in the world thereafter was being suffocated.
I followed that up earlier when talking with Mr Tyson about when I went to the police. If I had truly believed when I went to the police that I did not need any more data, I would have accepted it without the need for corroboration or alibis or anything, but if you remember I said if Mr Gardner had told me there was a perfect alibi, that would have been the end of the matter.
So I just had a feeling from the discussion you and I had that there was an absolute certainty on my part that my data and the research paper was certain for every baby thereafter. It was only relevant to the babies in the project that I was saying that, and that is where I have had increasing concerns and I apologise, particularly to my counsel, about that.
Q Because the Committee are giving you every opportunity to deal with this particular concern, as matters stand at the moment are there any other matters on this topic that you want to indicate to the Committee?
A No. Only if one reads in the papers a specific section in the paper where I actually say what I have just tried to say, and I do not know whether it would help to read that.
Q I think for the purposes of completeness you had better just identify what it is.
If you open the bundle C4, at page 318. That is the beginning of the paper. Is the passage you are talking to about on 328?
A Yes.
Q Can you help the Committee to find it?
A If you go to the left-hand column, second paragraph, it reads:
“In our patients bleeding from the nose or mouth in association with an ALTE distinguished intentional suffocation from ALTE attributable to natural causes.”
Q You began on the second sentence of the second paragraph?
A It begins:
“Child abuse as a cause of ALTE is most difficult to diagnose. In our patients bleeding from the nose or mouth in association with an ALTE distinguished intentional suffocation from ALTE attributable to natural causes.”
That is my caveat when I am saying according to our research, but I realise that caveat can be taken number of ways. This is the way I meant it to be taken.
Q Is there any more in that paragraph that you want to draw attention to?
A No, except to say that that was why obviously I was following up on all the other issues because if this alone was enough for me, if this alone was enough of a reason to diagnose suffocation I would not need all the rest of the stuff. And it is not. I do not want it to be thought that it is. That is the problem here.
Q Does that, therefore, cover the concerns that you were expressing before, first of all to your legal advisors and then now to the Committee?
A Yes, it is.
MR COONAN: Just remain there, please.
MR TYSON: No questions.
THE CHAIRMAN: Professor Southall, I think then you can resume your seat. I think
I am bound to ask Mr Tyson first of all whether on the basis of this additional evidence he wishes to add anything to his closing remarks?
MR TYSON: You will be relieved to hear that I do not.
THE CHAIRMAN: Mr Coonan, that brings us back to you and your closing remarks.
MR COONAN: Yes, thank you. Could I say straight away thank you very much to the Committee for dealing with that outstanding matter.
I propose to be somewhat workman like with the outstanding heads of charge. I just think we can deal with two of them quite shortly. Head 5g and 7d to a certain extent, in fact, evidentially are connected to the last piece of evidence you received from Professor Southall. I am not going to make any substantive submissions on these two heads of charge because the evidence from Professor Southall was that originally he did have a theory, that is day five, page one, letter G, and by the time that he was discussing the matter with the police, Mr Gardner, at the end of the conversation certainly with Mr Gardner, he was pretty certain, was an expression that was used. So there is no doubt that his analysis on the evidence moved from a hypothesis or a theory to being, to use his words, pretty certain and the reason why there is no admission to 5g and 7d is really, I suppose, at the bottom a linguistic one. You remember that Professor Southall jibbed at the description in 5g that he sought to present the theory as scientific fact. He objected to the word “scientific” and it also may be thought that the description in 5g and also, for that matter, 7d, where the pleader uses the words “you sought to present”, the fact is he did and it may be that those two heads of charge might require some linguistic tidying up. But, as I say, the evidence which is before you is really matter for you. I am not going to make substantive observations about 5g and 7d. The fact is that Professor Southall was saying that he was, this is on the evidence, pretty certain about his position by the end of his conversation with Detective Inspector Gardner.
So, therefore, it means we can turn to head 6. Sir, the case here is put by Mr Tyson helpfully at day five page 67 at letter E to G. It may be, if you could bear that in mind when you consider how head 6 is to be analysed. What appears to be the position is this, it is alleged, this is the case Professor Southall has to meet, it is alleged that he was precipitate date for two reasons. Firstly, because he went to speak to Mr Gibson without letting Dr Chipping know first. Secondly, he went to Mr Gibson because, he did so solely on the basis of a television programme. So a combination of those two factors, it is said that he acted precipitously. This is 6e, it was said that he was irresponsible in going to speak to Detective Inspector Gardner. Firstly, without permission from Dr Chipping and, secondly, on the basis of, and this was the phrase my learned friend used when putting the case to Professor Southall, on the basis of merely watching a television programme. So that is the case that Professor Southall has to meet.
So, therefore, it may be helpful to break those two issues down into a failure to contact
Dr Chipping and, secondly, the fact alleged that he spoke to the police, I use that word compendiously, with his convictions merely upon the basis of a television programme.
Can I deal first with Dr Chipping. You and the Committee may think that the evidence demonstrates a certain degree of tension between, on the one hand, Professor Southall's understanding and Dr Chipping's expectation. One can begin by looking at the letter at page five. It may be helpful to turn it up. Page five, which is 16 June 1999, was written by Professor Southall at a time before he was suspended and he was accepting there that he would not take any new category two work and, of course, since it was pre-suspension he was perfectly entitled to carry out category one work, which is the ordinary diagnostic and therapeutic work within hospital. Then at page seven Dr Chipping, in effect, cements the agreement that Professor Southall would:
“Cease work on any of your current child protection cases.”
That is in the first paragraph. Then in the second paragraph:
“Until you receive written confirmation from myself you should not undertake any child protection work.”
So in that sense it has widened and, therefore, that letter can only sensibly be construed to include category one and category two. After suspension, of course, category one work falls by the wayside as a matter of principle, which will simply leave category two and following suspension Professor Southall as a matter of general principle is perfectly entitled to carry out category two child protection work as a non-Trust employee. That is to say that in a private and personal and professional capacity. That does not appear to be disputed.
Sir, there is a very simple submission here. Professor Southall's approach to Mr Gibson and, indeed, for that matter, Detective Inspector Gardner, was not category two work at that stage and that is important because in so far as it is alleged, either expressly or impliedly, that he was in breach of an agreement, our submission is that that is not made out. Dr Chipping accepted that at the very stage when he approached either Gibson or Gardner or both it was not category two work. The reference for that is day two at page 74. However, she did accept that it was potentially category two work and it is that important factor which gives rise to Dr Chipping's expectation in this case. The reference for that again is day two, page 74.
Professor Southall, in approaching one or other or both of these two police officers, was essentially in what has been called an anonymous state. He was simply acting as a concerned informant at that stage. The matter was converted into a different set of circumstances when Mr Gardner asked Professor Southall if he was willing for it to go further and once Mr Gardner did not reassure Professor Southall that all the matters had already been taken on board and dealt with and Mr Gardner told you that he was not able to supply that and from Professor Southall's point of view when he approached these two police officers nothing may have come of it. So at that stage with both of these officers it was very much a precursor to moving into proper category two work and once Professor Southall was to move into category two work he is caught by the agreement and once he is caught by the agreement he has to seek permission. Or putting it another way, he has to alert the Trust and it is for the Trust to say yes or no.
It is not difficult to see why Dr Chipping nonetheless, even though there was no breach, might have expectations or concerns that Professor Southall should have contacted her, even at that early stage. She, of course, is perfectly entitled to her view, but the fact that his conduct did not accord with her view does not of itself reflect badly upon his conduct. That is a submission of some importance in this case. It might have been prudent and one is able to look back at the events, one can certainly say that. But at matters at that stage our submission is that what Professor Southall did was entirely reasonable.
It is important in considering heads 6a, in particular, and b, certainly in this context, that it is not suggested that Professor Southall should not have gone to the police at all. That appears to be conceded by my learned friend. You received evidence from Mr Mitchell to the effect that Professor Southall in his professional opinion had no choice but to do what he did and you had similar sentiments from Professor David. The only difference is, and perhaps it might sound like a comment after the event, bearing in mind that we know what actually did come to pass, that she would have contacted the police herself and have managed the situation on behalf of Professor Southall but she would not have stopped him expressing his concerns.
What is also important is, and entirely consistent with Professor Southall's position, is that when he did move away from merely preparatory discussion with the two police officers in sequence, what he did do was he got on the telephone and telephoned Dr Chipping. You know that he did that probably on June 2, the very day that he had this discussion with Mr Gardner and you find that, in fact, at page 21. It is clearly at a latter date of 12 June but Dr Chipping is there referring to events about to happen on 6 June. So, clearly, the telephone call has to be between the 2nd and the 6th simply by looking at the face of the document. Professor Southall's view is that he immediately got on the telephone, probably on the 2nd after the conversation with Gardner. If he did, there is no reason to think he did not, in our submission, he acted perfectly properly because as soon as he was beginning to move into the area caught by that voluntary agreement he picked up the telephone and told Dr Chipping what he had been doing and what the nature of the involvement was.
What of his conduct thereafter in this connection? This is relevant perhaps to head 6c as well. The evidence is that he kept Dr Chipping informed thereafter and she agrees.
In particular we find that at page 25, that he copied her into the forthcoming involvement with the social services and Dr Chipping told you that in any event she knew of a proposed meeting with social services in advance of it but not the precise date. Moreover, she told you that she knew of the report that Professor Southall ultimately compiled and, indeed, as you know, the letter at page 48, if we can just turn it up, refers to a telephone conversation on 4 September with Sally Campbell, who was head of resourcing in Dr Chipping's absence, where she records that Professor Southall had informed her that she was intending to submit a report to the judge and you know from the document that you have which comes from Mr Clark's solicitor that that report was first faxed on the 5th. So once again you have a picture of Professor Southall telling the Trust in advance of what he was doing, and interestingly from the very moment that his involvement changed, that is to say from being in a preliminary situation to a proper category two, albeit he was not being paid for it, category two situation. The Trust at no stage said you cannot do this. The Trust was, I use the word neutrally, content to permit him to move into this more formal environment with his involvement with the social services and in writing a report.
And moreover during the whole of this involvement, and again with one eye to 6© in particular, Professor Southall made his employment position absolutely clear to the Police and to others who were involved.
This very morning you heard some evidence from Professor Southall himself about the address. It is of itself an incredibly small point, but it would be apparent to you no doubt that it was not he who was dishing out his address at the hospital and it is likely to have been obtained in one form or another by probably Mr Gardner from the paper that Professor Southall gave him on the 2 June.
We know that the letter containing the address was from Mr Blomeley, the Crown Prosecution Service Prosecutor, and he told you that he thought that he had got it from Mr Gardner although, and I think my recollection is correct, my learned friend did not ask Mr Gardner at that stage about the provenance of the document. That is not a criticism. It is just a fact that the trail goes cold at that stage.
And so, sir, for all those reasons we say that the fact, and I use the word failure as a fact as opposed to connoting any failure of obligation, to alert Dr Chipping before taking any step in relation to the Police Officers was not precipitate and was not irresponsible. Of course, I close that part of matters by saying that of course Head 6 bites simply on the time up to and including the 2 June and not afterwards.
The second aspect of Head 6 relates to the suggestion put to Professor Southall by Mr Tyson that he went to the Police with his convictions merely upon the basis of a television programme.
Perhaps I could just deal with this by way of introduction to Mr Gibson and Mr Gardner together. The essence of child protection work is that you disclose your concerns, and that applies whether you are a doctor, or an individual, or a solicitor, or anybody else, and that is no doubt why Mr Mitchell said that he had no choice and why Professor David said that he in effect had a duty to do so.
There is, in our submission, an overwhelming public interest in bringing to the attention of the Police and, I may say, other agencies if you believe, and I introduce the word honestly insofar as it is necessary, in good faith that there are real concerns about the health and safety of a particular child. And case law, which I do not propose to refer to but case law makes that abundantly clear.
Now what about the position in relation to Mr Gibson, first of all? At that stage Professor Southall's concern was on the basis of the television programme coupled with his own knowledge from his research and his clinical experience. His concerns were not at that stage of a level of certainty, and the submission we make is very simple. It is wrong in principle to assert that he was wrong to go and approach Mr Gibson even on the basis of the television programme coupled with his own clinical experience and research. That he was perfectly entitled to do it and it would be otherwise wrong to declare otherwise.
Of course, at the time that he went he had an anticipation that his concerns might be assuaged. There would have been criticism of him had he not gone to the Police and kept quiet. So, insofar as the allegation of merely acting on the basis of the television programme is made out, of course still coupling his clinical experience and research knowledge is made out, we say that he was perfectly entitled to do it.
The situation changes by the time he has a conversation with Mr Gardner. Of course it was Mr Gardner who contacted him and not the other way round, but in any event at this stage it was in any event not solely on the basis of the television programme. At this stage Professor Green and Professor Meadow's input had been obtained and it was in the light of that that Professor Southall's concern was ratcheted up.
You know that he mentioned and revealed the involvement of Professor Green and Professor Meadow because Mr Gardner has captured that in his memorandum at Page 18, and the evidence you have received from Professor Southall is to the effect at the very least that Professor Green and Professor Meadow confirmed and that is a word which was used very frequently, confirmed some of the underlying facts revealed in the television programme and revealed them in an authoritative way from two major prosecution witnesses in this case.
The criticism appears to boil down, in the light of the evidence, to the manner and emphasis with which it was being put forward. That is really what it boils down to. In other words, what Professor Southall should have done is gone to the Police and in effect put across what I am going to call something of a diffident theory.
But, as against that, you have somebody and it is not suggested otherwise. You have somebody with honest concerns. You had someone who and this is a word I am going to use back to my learned friend was passionate about these concerns, and as the memorandum makes absolutely clear he was extremely concerned and apparently acting in the interests of Child A and that must not be lost sight of.
Indeed, we would encapsulate it into this short proposition. Whether or not you lack data at this stage primary data the greater your concern, the stronger your feeling or belief is held, the greater the duty to do something about it.
When Professor David of course was suggesting in his evidence that Professor Southall should have put this concern over to Mr Gardner in a much lower key, what he did not know this is Professor David. What he did not know, or at least not take into account, was any involvement by Professor Green and Professor Meadow. That is not a criticism because he, Professor David, did not know what were the concerns of Green and Meadow and what their input was until Professor Southall told you. But the point that I am making is that, when you consider just how Professor Southall should have put it to Mr Gardner, do not lose sight of the fact that by this stage he had been armed with the opinions and with the insight and analysis from Green and Meadow.
And so far as performing a public duty, because we say that is what it was at this stage a public duty it does not matter as a matter of general principle that you do not have any primary data. That cannot be a reason why you do not go to the Police. That cannot be a reason why, if you have analysed and thought through concerns, you pull your punches. And that applies whether you are a Professor of Paediatrics, a Consultant Paediatrician with experience, or not.
And, sir, that is why we say that in going to the Police, whether Gibson or Gardner, with the absence of primary data and putting to particularly Gardner the analysis as he, Professor Southall, did, was not precipitate and nor was it irresponsible. The fact that it may not have been done like that by somebody else by Professor David is neither here nor there.
Let me say a few words in general terms about 6©. So far as the input from Professor Southall was concerned and this is really in practical terms the input to Detective Inspector Gardner that found its way to the Crown Prosecution Service Headquarters and you know that from Mr Blomeley, the Senior Crown Prosecutor, that Professor Southall's information was both helpful and welcome. And you will be mindful of some observations made by Professor David about that, but do not lose sight of the fact that Mr Blomeley was the person responsible for the investigation, the prosecution and the presentation and carriage of the appeal of Sally Clark and, in that sense, would be expected to have something of a bird's eye view at that time, never mind now, but at that time of whether or not Professor Southall's input was helpful or welcome. And that, we say, also can be said to be just a neat vignette of the flipside of what the public interest is.
I have already said that Professor Southall was motivated by the safety of Child A, and once again I refer to the memorandum of Mr Gardner on 2 June and it is there for you to see, and that he at all times acted honestly. He was completely open about his professional involvement. And, sir, when you take all those factors into account, bearing in mind that you are concerned here solely with going to the Police and Professor Southall's parallel involvement with Dr Chipping, you should find that Head 6(a), (b) and © are not made out.
Sir, I note the time and I am not going to finish tonight.
THE CHAIRMAN: I mean, if this is a natural break
MR COONAN: It is.
THE CHAIRMAN: then that would probably be an appropriate time.
MR COONAN: Yes, thank you.
THE CHAIRMAN: Provided you are content to do that?
MR COONAN: Yes, I am. Thank you.
THE CHAIRMAN: Yes, right. Well, then we will stop now. My only question is whether, to make sure that we get through this tomorrow, we should start at 9 o'clock tomorrow morning?
MR COONAN: Certainly, sir.
MR TYSON: I was just rising to my feet to suggest that very thing.
MR COONAN: Yes.
THE CHAIRMAN: Yes. I think it is absolutely essential that we get through this next part tomorrow.
MR COONAN: I entirely agree, yes.
THE CHAIRMAN: And, therefore, with everyone's agreement we will start at 9 o'clock. Thank you.
(The Committee adjourned until the following morning
at 9:00 a.m.)