GENERAL MEDICAL COUNCIL
PROFESSIONAL CONDUCT COMMITTEE
On:
Tuesday, 15 June 2004
Held at:
St James’ Buildings
79 Oxford Street
Manchester M1 6FQ
Case of:
DAVID SOUTHALL MB BS 1971 Lond
(Day Seven)
Committee Members:
Prof D McDevitt (Chairman)
Ms F Bremner
Mr S Gurjar
Ms C Langridge
Rev J Philpott
Mr D Mason (Legal Assessor)
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MR K COONAN QC, of Counsel, instructed by Messrs Hempsons, appeared on behalf of the Doctor, who was present.
MR R TYSON, of Counsel, instructed by Messrs Field Fisher Waterhouse, appeared on behalf of the Council and Mr Stephen Clark.
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(Transcript of the shorthand notes of TranscribeUK
Tel No: 0208 614 5799)
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INDEX
Page
CLOSING SUBMISSION by MR COONAN (continued) 1
LEGAL ADVICE 9
DETERMINATION 12
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THE CHAIRMAN: Good morning, everybody. Mr Coonan, I was just having a conversation with the Legal Assessor. Based on the impression that the Committee had yesterday that you in your closing remarks on behalf of Professor Southall did not like the words that are present in 5g and 7d, specifically the words “sought” and “scientific” in both, I wondered was whether you, in consultation with Mr Tyson, might like at some stage to come up with an alternative where those two words are excluded. The alternative is that we eventually go into camera and make amendments that we may or may not need to bring to your attention.
MR COONAN: Yes, indeed, I follow that.
THE CHAIRMAN: It might short-circuit the process if at some stage you were to make suggestions in relation to that.
MR COONAN: Yes. Could I make a suggestion about how to deal with that? I would not have thought that it would take very long. If I can proceed with the rest of the material that I have and then if at the end of it you give me a moment of two with Mr Tyson, we can perhaps have a word about it.
THE CHAIRMAN: That is perfectly acceptable. I just wanted to raise it at this stage to see whether we could get it done in this part rather than subsequently.
MR COONAN: Certainly, sir. Therefore, can I move to the next matter on which I need to address you, which is head of charge 7.e? You will see that it is in two parts. The first part is admitted as a matter of fact, but it is the second part that Professor Southall does not accept.
By way of preliminary comment, it is important that one looks at the way this is pleaded. The phrase is, “whereas it” (that is, the report) “contained matters the truth of which you could not have known or did not know.” The first point is whether those two phrases are stand-alone phrases? Do they mean different things? This is another area where I suggest that it may be that one or other parts of that phrase are otiose. In effect, as we understand the allegation, what is being said here is that when Professor Southall wrote matters in his report, he did not know about them. That appears to us to be the thrust of the allegation. Therefore, one asks rhetorically what extra the phrase “you could not have known” brings to this. At bottom, it is unnecessarily complicated to the issue. That is the first point.
The second point is that there is a straight forward denial and straight forward assertion by Professor Southall that he did know the matters that he has written about. Let there be no mistake about this. This not an allegation that he was writing about matters that were not based on the raw data. That is not this allegation. That allegation is captured by head of charge 7.a.i, and he has admitted that. Therefore, once again 7.e must bring something different, otherwise it is irrelevant. That is the pleading point.
What of the defence? The first observation to make is that this is a classic area where the burden and standard of proof applies. The position is quite simple. Professor Southall says that he knew about these matters, and the overarching submission is that he knew about them from a number of sources. He knew first of all from the television programme, principally from the speakers, Mr Clark himself and other direct personnel, but also from Professor Green and to a lesser extent Professor Meadow. It may be said, “How can somebody know something when somebody else has told you? When you do not actually have the raw data yourself, how can you know about that?” The answer is very simple. Of course you know. Because of the way in which the pleading is phrased, the answer is very simple.
It is perhaps important also to bear in mind the distinction, which some people may think is a valid one, that when an expert witness writes a report for a court, that witness knows material from that which he has read, but much of that which he has read will, of course, be in effect what other people are saying. There is no distinction here between an expert who writes something and who is writing the truth. He is simply referring to matters contained in witness statements and other reports. So, in parallel, that which Professor Southall wrote about he wrote about on the basis of material from others. Sir, the individual elements in the report that were highlighted by Professor David, and highlighted I may say at a time when he, Professor David, did not know about the contribution made by Professor Green – so when Professor David was talking about it, to him it would have seemed a clear case, but it is not – every single item is derived from a source.
I will just go through them. On page 43, the information about the respiratory infection came primarily from the television programme and then from Professor Green. The fact that equally Mr Gardner, it is said, confirmed it is irrelevant. The fact is that the basic information and the confirmation came from Professor Green. On page 43, the information about the torn frenula and the possible bruising came primarily from the television programme and then from Professor Green. The existence of fresh blood and old blood – again confirmed by Professor Green. I will just run through again the injuries suffered by Harry. One of them was the rib fracture, and there was the injury to the brain, spinal cord and eyes – again confirmed by Professor Green. The petechial haemorrhages – confirmed by Professor Meadow. The breathing monitor – from the television and from the nanny who appeared on the television programme, who spoke about that.
The criticisms on that particular issue that Professor David makes, namely, that he did not know the extent to which he was working, when it was last checked and so on and so forth, are all irrelevant considerations and criticisms in the context of this allegation. All that Professor Southall was doing, as you can see from page 43, was just simply stating a fact, and that fact is true. Nobody has suggested otherwise.
Sir, the interesting thing about this is that when you come to consider head of charge 7.e, every single matter that Professor Southall has mentioned is true. Nobody is saying that they are in fact untrue. In our submission, that is enough to say that head of 7.e is simply not made out. It may be that it was drafted at a time, as I say, in ignorance of the position that has now emerged before you. That is all I say about 7.e.
I move on to head of charge 8. I am not at this stage going to deal with the individual headings, a, b, c and d. Rather, I propose to deal with a number of observations about the process that Professor Southall was about, because consideration of the process will inform your consideration of the individual sub-heads of head 8.a. Later, I will deal specifically with one or two of those heads, but for present purposes I propose to deal with it by way of topic.
Could I just make some observations about the question of the data? Of course, access to all the data in the entire case would have been ideal. Of course, access to any data that was relevant to the specific limited issue of the nose bleed would have been ideal. But Professor Southall was tasked with providing input on the nose bleed issue alone. In respect of that, before you, no raw data has been identified which, first of all, is relevant to the nose bleed issue and, secondly, that Professor Southall did not have. In respect of the limited purpose that he was dealing with, our submission is that he had sufficient data first of all from the television – and I refer specifically to Stephen Clark himself and to the nanny – but more particularly the evidence in relation to the question of the delay in the nose bleed following suffocation from Professor Green. That was the crucial information that Professor Southall received. In other words, the wider data in the case that Professor David has had access to, but nobody else, is not relevant to the limited issue that Professor Southall was tasked with dealing, and that is a most important submission.
The second submission is linked with this. What was, if I can put it rhetorically, the purpose of this document? What type of document was it? Contrary to the submission made by Mr Tyson, this was not a classical full-blown medico-legal report. Those of you on the Committee of a medical or legal background will know precisely how classical medico-legal reports are constructed, and I invite you to take judicial notice, as it were, of that.
It was not intended to be the full-blown equivalent, or even a pale shadow, of the report or the exercise or the task that Professor David had begun and which took 354 pages to deal with. Professor Southall was not the nominated expert in this case. He was, in effect, being invited to put together a piece which set out his concerns. That was the purpose of the letter at page 35. To that extent he was, for want of a label, a concerned informant.
If the Committee accept those submissions, it follows that the full-blown requirements which attend upon what I am going to call a classical medico-legal report in terms of the expert’s approach to them do not apply, or at least do not apply in their full rigour. I am referring (and I will not take you to the detail) to the observations by Mr Justice Wall and in particular, because this predates the events, the observations by Mr Justice Cazalet in the case of Re R which are captured in the article by Catherine Williams.
It also follows from the foregoing that when comes to look at the question of the absence of a caveat that that too has a number of matters which follow. The caveat question may be considered really in two parts. It may just be as well to turn up page 46 to see, first of all, to see what Professor David was going to suggest. It is going to be important to look carefully at that suggestion. Before I do that, can we address the fundamental question of a caveat? Normally in a full-blown medico-legal report one would see the roll call of sources, and that is quite proper and essential. That was not done in this case at all and that, again, is a pointer to the matter I submitted on earlier.
Leaving that aside, the sort of caveat that might have been put on the document and which Professor Southall says to you now “I wish I had” is simply the bald statement “I have not had access to the raw data”. But the answer to that one is that everybody knew that he did not have access to the raw data and Mr Wheeler accepted that proposition (Day 2/60).
But that is one form of caveat simply to say “I have not had access to the raw data”; the other form of caveat is the one Professor David was seeking to invite Professor Southall to attach to the report, and that is set out at page 46. Could I take you to it? It is the penultimate paragraph on page 46:
“These opinions are based on the very limited data available to me in the television programme.”
I miss out the next bit because that is the sort of caveat I have just been talking about. Professor David goes on:
“I accept there may be data available that negates or is inconsistent with the opinions expressed here.”
Professor David, in that suggested caveat, is going much further than the bald caveat that Professor Southall now accepts he wished he had put on the document. Professor David is inviting you, in effect, to say, “The opinion you have expressed here is therefore limited by definition because you have not had access to the data”. Professor Southall’s response to that is, “The issue that I am addressing is not dependent upon a sight of all the data. My opinion cannot change by reference to other data by the very nature of the exercise that I have carried out”. That is the reason why he did not adhere to the invitation by Professor David. In other words, the opinion on the nose bleed, the opinion on the question of immediacy or delay, was not limited by the absence of the raw data, and I have already submitted to you on that point.
Therefore, sir, when you consider the status of his admission in 7f, 7f is simply an admission of fact. It is not an admission that therefore his conclusions were in fact deficient or, indeed, it is not an admission that his conclusions were in fact based upon very limited information. That is an important distinction. Therefore, when you consider the impact of 7f, the admission, and the impact of that on your considerations under head 8, I invite you to bear those matters in mind.
I think it may be timely just to deal with head 8c as a stand-alone matter. I am very alive to the fact that Professor Southall has admitted before you that it was in fact misleading to fail to mention the contribution made by Professor Green and Professor Meadow in his report – and also, for that matter, in the e-mail that he sent back to Professor David. I have already mentioned that one has to take into account here the status of this document, the report. It did not purport to set out a formal roll call of sources. If it had, and then omitted the reference to Professor Green and Professor Meadow, that would have been a matter of some concern. That must be accepted.
First of all, you will remember the reasoning of Professor Southall why those two names were not mentioned; that these were sensitive matters and he was concerned about making references to two experts who had given evidence in the proceedings. Whether that is objectively, at this remove of time four years later, a matter which one agrees with or not is beside the point. That was his reasoning at the time, and it may well be, bearing in mind the high profile nature of this particular case, at the time that he may have had good grounds for being somewhat sensitive about dragging them into this arena.
Sir, insofar as the failure to mention thee two names was misleading, it is misleading only to the extent of the reader not knowing that Professor Southall’s information from the television had been confirmed, and it therefore goes no further than that. The facts, as I have already indicated, when all is said and done, are true. No-one at that time and no one now challenges the truthfulness of those assertions. No-one said then – and I pose this compendious question – “How do you know this? Professor David never asked that question.” So at no stage can it be said that Professor Southall in that respect has been dishonest. The fact is, the two names were not mentioned.
So again it is important – and you will understand the way in which I put this – to have a sense of proportion about the sense of impact about Professor Southall’s own admission that there was a misleading element in the report. What I do say is that insofar as that admission that he makes, insofar as you consider that that is sufficient to establish on its own head 8c, it is not, in our submission, sufficient of itself to establish 8d. I say that for the reasons that I have set out before you over the last few minutes.
Sir, I now want to deal with the last major topic which, in effect, bears, I would have thought, on the question of 8d, and it is the question of whether or not on proper examination Professor Southall went about a process of reasoning rather than jumping in with both feet in a purely dogmatic way, as I say, without any proper application of the mental processes. Our submission is that there was a reasoning in operation here. Whether the end result is right or wrong is not within the purview of this Committee, but that is not a matter which you have to make a judgement about. Equally, Professor Southall’s process that he engaged in was not, in our submission, a diagnostic process. The diagnostic process is something that a paediatrician (in this particular context) would be about who was in the position of Professor David: he goes along and interviews all the people and so on and so forth. I have already submitted to you that is not what Professor Southall was about.
Let us therefore just address the reality of what Professor Southall was dealing with. Firstly, there were only four possible causes of this nose bleed in the hotel. Professor David agrees that there were four, and they are set out in his report of 18 September 2000, which he provided after his meeting with Professor Southall and the e-mail that was provided to the Court – and you have that.
The four causes were as follows: firstly, spontaneous bilateral nose bleeding; secondly, IPH; thirdly, abuse by Stephen Clark; fourthly, abuse by Sally Clark. In the latter case, abuse by Sally Clark, the proposition, therefore, would involve a tacit proposition that there must have been delay between the suffocation attempt and the onset of bleeding.
How did Professor David get to the conclusion? Let me take the spontaneous bilateral bleeding first. The first sudden category of this event is where it may be said it is due to
a foreign body or a minor viral infection that Professor David described to you. Professor Southall rejected this cause pretty well at the outset. He said that you are not going to get a foreign body put up by such a young child in the nostrils and he has never seen an infection causing bilateral nose bleeding. Equally, Professor David, it is at your page 66 in his court report said, it would be a remarkable and most unusual occurrence for this to occur and in his evidence and at trial, you have the transcript, I give you the reference, please, page 50, Professor David said he had never seen it. So the difference between the two of them, in our submission, putting it at its very highest is wafer thin.
It may be said by Professor David: “How can you be sure that it was bilateral?”, to which our response is quite simple: first of all, that is exactly what Stephen Clark said on the television programme, you now have transcript and you can see again to refresh your memory that that is exactly what he did say and, moreover, that is exactly what Stephen Clark did say in his evidence at the trial; that it was bilateral and the reference to that is page 98. I give you that reference because I anticipate that you might receive an agreed document at the end of my submission from Mr Tyson which refers to that evidence. So, therefore, sir, we say that in respect of that category of cause it was reasonable to exclude it as Professor Southall did.
The second aspect of the spontaneous nosebleed category is that it may have been due to
a medical condition, such as a clotting disorder and leukaemia can be such a cause. Professor Southall excluded this one. Professor Green told Professor Southall that as a matter of fact there was no evidence at trial to support this proposition and, indeed, that is absolutely right because Professor David confirmed that there was no evidence to support this cause at page 31 of the strategy meeting memorandum. You remember on the bottom of the page where he confirmed that there was no such evidence. So once again there is no issue between anybody that that could be a cause and, therefore, again it is quite reasonable to for Professor Southall to have excluded that.
IPH. Professor Southall was told initially by Professor Green that it hat been raised at the trial by one expert and, indeed, that turns out to be true because that one expert who raised it was Professor David. It is a proposition which was clearly rejected by the jury. Professor Green also told Professor Southall that he, Professor Green, had found no evidence on the slides to support it. You will remember that Professor Green is
a pathologist who was an expert in, amongst other things, no doubt, lung haemorrhage and IPH was a matter which Professor Southall excluded. We say that that is was entirely reasonable because as a matter of fact all those other experts who have had to consider this problem at the trial described IPH as a non-starter and that is what was agreed by Professor David.
The issue really, this was articulated by Professor David at trial, was that it was either smothering or IPH. I am going to give you the references which will inform you of those submissions. Professor David’s evidence can be found at pages 34 to 36 of his transcript at trial, pages 49 and 50, and 69 and 70. So, equally, just as others did, Professor Southall also excluded, we say he was entirely right, it was entirely reasonable that he did.
In passing if you look at Professor David’s court report in your bundle, at pages 69 to 74, you will see the whole question of IPH had been floated on the basis of simply three cases, the results of which had never been published and in which those three cases could well have been due to smothering in any event.
So, therefore, one is driven on that logic to the position which Professor Southall came to which was it was a case of smothering. In other words, one simply does not need Professor Southall's paper to get to that position. So, to borrow Professor David’s phrase: “The exam question is: who by?” That is the precise issue, the precise issue that Professor Southall addressed.
The irony of this whole case is that on that very issue, ‘who by?’, the logic of Professor Southall was smothering, the jury have said it is smothering, I say it is smothering, reason says it is smothering, but once you postulate ‘who by?’, since bleeding is instantaneous with the smothering, therefore Professor Meadow cannot be right. The irony, as I say,
is that Professor David agrees with Professor Southall that bleeding is always instantaneous.
One can see perhaps, and I hope readily, that when somebody in Professor Southall's position is alerted by Professor Green that Professor Meadow at the trial had advanced the proposition that there may well be a delay up to some hours, that would be a cause of real concern to Professor Southall and it may well be that that might of itself explain why he approached this with that concern and why, Mr Tyson has suggested this and he may not be wholly wrong, there was a certain amount of passion and strong belief that a real error had been made.
That is why when we say that he spoke to Mr Gardner and that Mr Gardner did not provide a number of answers to a number of questions that would have served only
to have fuelled his concern about the position.
I say a brief word about Mr Gardner, he cannot recall now at this moment in time what he, Gardner, said to Professor Southall. He has only got the memorandum to rely on. That is entirely sensible and perfectly understandable. Mr Gardner was there to capture what Professor Southall was saying to him. Not vice versa. They were there, the two of them, sitting down, it would appear, between one and two hours. The memorandum of itself, you may think, hardly captures one to two hours’ worth of discussion. There must have been more.
At the end of the day Professor Southall was there, was he not, to ask questions, because he was concerned. So, therefore, you may think that he would be in a position now at this stage to remember that he did ask and, secondly, the sorts of answers that he was given. On any view those answers clearly have the effect of fuelling his concern about the position of this child.
One matter has arisen which I should deal with shortly - the question of whether this was new data. There is no specific allegation about it but it is a matter which is in the round and is, therefore, relevant to your consideration under any one or other of these heads in head 8. The fact that it was not new data to Professor David at the time is, with great respect, irrelevant. The other side of the coin is that we have Mr Blomeley describing the information as helpful and welcome and he took the view, did he not, that
Professor David's treatment of this topic in paragraph 30 of his, Professor David's, report, your page 62, was in his, Mr Blomeley’s, opinion somewhat dismissive and it may well be that one is really not talking here about new data but a new interpretation of it and that was the take, if I can put it that way, the take on it that Mr Mitchell had. The new interpretation, in effect, represents the fault line between the account given by
Professor Meadow in support of the Crown's case against Sally Clark; that there was
a delay or could be a delay, and Professor Southall's position; that there could not be
a delay. On any view that is interesting, but more than that, potentially a very valuable matter which requires at least attention.
So the fact that the CPS, the Crown Prosecution Service, did not, as it were, pick it up and run actively with it is hardly surprising because what Professor Southall had to say of the delay issue was inconsistent with the Crown's case. It was inconsistent with
Professor Meadow's evidence. The trial was over, there was an appeal pending, so the CPS did exactly the right thing, they disclosed that information from Professor Southall to the defence solicitors for Sally Clark, which is exactly the right thing, they did because potentially Sally Clark had a new ground of appeal. It was up to her and their solicitors, of course, as to whether they employed it. So to be dismissive about this is, we say, unfair and unfounded.
Sir, I therefore come to my final remarks. When you consider 8a, and more particularly 8b, I am sure that you will proceed on the basis that Professor Southall was at all times acting in good faith, that he was acting honestly and that he was, because of his background and his clinical experience and the work that he and his team have done, acting in the interests, as he saw it, of Child A. The end result here is not a matter that you have to decide is correct or incorrect. You are in effect concerned with the approach that he adopted and with his general reasoning for that approach.
We would say that whatever shortcomings you may find – and I entirely accept that you are bound to find some, because this was an almost unique set of circumstances and things could have been done differently – he did not abuse his professional position. He was deploying his professional position in a way that he thought was right for the assistance of others. If he had been a nominated expert, then of course what was in that report would have been completely different. He would, in effect, have been carrying out the same task as Professor David.
Sir, when you consider those matters under the collective heading of head of charge 8, we submit that they do not of themselves amount to a sufficiency on which you could find serious professional misconduct. Sir, those are the submissions that we make.
THE CHAIRMAN: Thank you, Mr Coonan.
MR TYSON: Sir, somewhat unusually, but with the concurrence of my learned friend, issues have arisen in the course of this case as to what Mr Clark did or did not say when he gave evidence in the criminal case about the nose bleed. My learned friend asked specific questions of Mr Clark about that. Through the endeavours of those instructing me, the full transcript of what Mr Clark said at the criminal trial has been obtained and, again through the endeavours of those instructing me, that transcript has been edited so that all the references to nose bleeds are included and all the references to other matters have been excluded.
On that basis, I would ask, even at this stage, for the Committee to receive the document, which I would ask to be exhibit C5, which is a transcript of Mr Clark’s evidence in the Crown Court at Chester relating to the nose bleed. You will see in manuscript at the top of various sections “Mr Clark in-chief”, “Mr Clark cross-examined” and “Mr Clark
re-examined by Mr Bevan”. The numbers at the bottom are unhelpful because sometimes the have them and sometimes they do not, but there is a consistent numbering on the facts that goes from page 2 to page 30. I would ask that the Committee receive this document as C5.
THE CHAIRMAN: Mr Coonan?
MR COONAN: Sir, as I adverted to in my submissions to you, we have discussed this already and I have absolutely no objection. I think that it would be desirable for the Committee to receive it, not least because I raised a particular passage with Professor David based on this transcript, and you will see from the transcript of the proceedings before you that I was referring to page 98 of the transcript of Stephen Clark’s evidence at the trial, and you now have it.
MR TYSON: Just on a minor basis, there is some manuscript on the first page of this document that I would ask you to ignore.
THE CHAIRMAN: Thank you. This document will be C5. I am now going to ask our Legal Assessor whether he wishes to give us any advice before we retire, after which we can perhaps deal with the two matters relating to heads of charge 5g and 7d.
THE LEGAL ASSESSOR: The Committee have now reached the stage at which they have to decide which of the unadmitted heads of charge, if any, they find proved, and then consider whether the heads of charge found to be proved and the admitted heads of charge are insufficient to amount to serious professional misconduct, which is commonly referred to at this stage, part 1 of the procedure, somewhat unusually in this case because most of the primary facts are admitted and therefore proved and the remaining heads are in the main alleged conclusions to be drawn from the admitted facts.
I would remind the Committee that the burden of proof lies solely on the General Medical Council. The practitioner need prove nothing. His evidence and evidence called on his behalf is, of course, to be taken fully into account, but the burden on every issue is on the Council. The standard of proof is the criminal standard. To find a head of charge proved, the Committee must be satisfied so that they are sure of the facts alleged. If the view of the Committee or individual members is subject to words such as “possibly”, “likely” or even “probably” in relation to any particular head of charge, that head would not have been proved to the required standard.
Having done that exercise, the Committee must then consider the admitted heads and any heads found proved and decide in relation to each whether they are insufficient to amount to serious professional misconduct. It is therefore a two-stage procedure. On the issue of serious professional misconduct, I simply say that it is conduct that falls seriously below the standard to be expected of a medical practitioner.
I simply again remind the Committee of the advice that I gave to them on the first day of this hearing to avoid any media coverage of this case until the whole of the case has been concluded.
THE CHAIRMAN: Do either counsel wish to comment on the Legal Assessor’s advice?
MR TYSON: No comment, sir.
MR COONAN: No comment.
THE CHAIRMAN: In that case, I suggest that we take a 20-minute break to see whether an agreed position can be reached on the two heads of charge 5g and 7d, after which we will retire to consider our findings.
(The Committee adjourned for a short time)
MR TYSON: Can I explain the delay? My learned friend and I have agreed an appropriate form of words to deal with 5g and 7d but the formal nature of my instructions are that I need instructions from both the General Medical Council and Mr Clark before I can formally put forward what I want to put forward and I am still in the process of obtaining those instructions. I apologise but there will have to be a short delay before I can act on instructions, which all lawyers have to do.
THE CHAIRMAN: I had already been made aware of that. Have you any time frame on the likely period?
MR TYSON: Efforts at this moment are being made to contact Mr Clark, but I do not anticipate I will receive them before 11 o’clock, but my mobile phone is on as I speak. The alternative, of course, is for the Committee to order the amendment.
THE CHAIRMAN: I did actually say to the Legal Assessor that we could make our own amendment.
MR COONAN: Sir, when all is said and done the amendments which are proposed and, as Mr Tyson has said, agreed subject to instructions, I do not think there is any harm in us, on a sort of de bene esse basis, indicating to you what those amendments would be. You, as a Committee, could then decide whether, of your own motion, you deal with them.
THE CHAIRMAN: I think that would be a helpful way forward. Unless Mr Tyson disagrees, we would hear the amendment that you together have agreed, we would proceed on that basis and you could subsequently inform us as to what Mr Clark’s views were about that and ultimately, as you say, the Committee could take their own view as to what the heads of charge should contain.
MR COONAN: I understand my learned friend’s position entirely about that; I do not want to damage that in any way but I do not see any harm, if I may say so, with respect, in you receiving the position that we have discussed – unless my learned friend has a problem with that.
MR TYSON: I have a problem in that I cannot say that I agree that the heads of charge should be amended because I do not have any instructions to agree.
THE CHAIRMAN: I understand.
MR TYSON: I can say that it has been suggested that they could be amended in such a way, but I cannot be recorded anywhere as agreeing to something upon which I have no instructions.
MR COONAN: Sir, therefore, in those circumstances, can I suggest to the Committee how the charge might be amended and then I leave it entirely to you as to whether you adopt it.
THE CHAIRMAN: Yes.
MR COONAN: We are looking at 5g and what I propose is that the phrase “sought to” is deleted and the word “present” becomes “presented”, and the word “scientific” is deleted, so that it reads:
“g. had a theory about the case, as set out in Head 4 above, that you presented as fact as underpinned by your own research.”
That is the proposal, and the same linguistic amendment to 7d. I do not think I need say any more.
THE CHAIRMAN: Legal Assessor, do you wish to comment?
THE LEGAL ASSESSOR: If I may, yes. It is Rule 24(4) which allows the Committee to amend of its own motion:
“…the Committee may, after hearing the parties and consulting the legal assessor, if they are satisfied that no injustice would be caused, make such amendments to the charge as appear necessary or desirable.”
Although, for very good reason, Mr Tyson cannot formally agree to that amendment, it has been discussed between counsel and the issue, I think, is this, whether it causes any injustice. I have considered the matter and I can see no injustice by those amendments; they, perhaps, make the head of charge clearer, which is always an advantage to the Committee. It seems to me not to prejudice either or any party in this case.
THE CHAIRMAN: If nothing else it will help us not to have an endless discussion about what “scientific” means, which I think I would be pleased about.
I think we will proceed on that basis. Mr Tyson, you can make us aware, once you have discussed it with your client – once we have gone into camera you can get a message to us as to what his views are. But as, I think, has been made clear, it is up to us ultimately to make whatever amendments we think will help to clarify the matter provided they are not making the inferences against Professor Southall worse.
MR TYSON: I understand. It is just as a matter of formality I have to take instructions from both my clients, from both the General Medical Council and Mr Clark.
THE CHAIRMAN: I understand that.
MR TYSON: And at the moment I have instructions from neither.
THE CHAIRMAN: I understand that.
I think then the Committee will now go into camera in order to consider its findings and strangers will withdraw.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE COMMITTEE DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READM ITTED
THE CHAIRMAN: For the purpose of the record, I should say that first of all that while the Committee was in camera I did receive a note from Mr Tyson to say that he had discussed the possible amendments to 5g and 7e with both the General Medical Council and Mr Stephen Clark and that they were content with the those amendments. So that is the basis on which we have proceeded.
Professor Southall, the Committee have given detailed consideration to all the evidence adduced in this case and have taken account of the submissions made by counsel and the advice given by the Legal Assessor. We have borne in mind that the burden of proof rests on the GMC and that the standard of proof required is that we should be sure beyond reasonable doubt. We have considered each head and sub-head of charge separately. Accordingly, we have made the following findings on the facts:
Head 1 has already been admitted and found proved;
Head 2 has already been admitted and found proved:
Head 3 has already been admitted and found proved;
The stem of Head 4 has already been admitted and found proved;
Head 4a has already been admitted and found proved;
Head 4b has already been admitted and found proved;
Head 4c has already been admitted and found proved;
Head 5a has already been admitted and found proved;
Head 5b has already been admitted and found proved;
Head 5c has already been admitted and found proved;
Head 5d has already been admitted and found proved;
Head 5e as amended has already been admitted and found proved;
Head 5f has already been admitted and found proved;
Head 5g amended to read “you had a theory about the case, as set out in Head 4 above, that you presented as fact as underpinned by your own research” has been found proved;
Head 6a has been found proved in relation to heads 3 and 5;
Head 6a has been found not proved in relation to head 4;
Head 6b has been found proved in relation to head 5;
Head 6b has been found not proved in relation to heads 3 and 4;
Head 6c has been found not proved in relation to heads 3, 4 and 5;
The stem of Head 7 has already been admitted and found proved;
Head 7ai has already been admitted and found proved:
Head 7aii has already been admitted and found proved:
Head 7bi has already been admitted and found proved:
Head 7bii has already been admitted and found proved:
Head 7c has already been admitted and found proved:
Head 7d amended to read “Your report was thus based on a theory that you had about the case that you presented as fact as underpinned by your own research” has been found proved;
Head 7e has been found proved;
Head 7f has already been admitted and found proved;
Head 7g has already been admitted and found proved;
Head 8a has been found proved;
Head 8b has been found proved;
Head 8c has been found proved;
Head 8d has been found proved.
Having reached findings on the facts, the Committee then considered whether the facts found proved would be insufficient to support a finding of serious professional misconduct. The Committee concluded that they would not be insufficient.
For the benefit of the public, I should explain that the Committee will now invite
Mr Tyson to adduce evidence, if he wishes to do so, as to the circumstances leading up to the facts which have been found proved, the extent to which those facts indicate serious professional misconduct on the part of Professor Southall and as to his character and previous history. After that, the Committee will invite Mr Coonan to address them on those matters and also to adduce evidence in mitigation, if he wishes to do so. Both counsel are reminded that they should refer to the Indicative Sanctions Guidance when making submissions on sanction.
The Committee will then proceed to consider whether Professor Southall has been guilty of serious professional misconduct in respect of those facts which have been found proved against him and, if so, they will go on to consider their determination as to whether or not they should make any direction regarding his registration.
As we are unable to conclude the case today, we will resume consideration of this case on 5 and 6 August 2004.
MR TYSON: The Council would consider it only fair to the Professor to deal with matters all in one day and we would not seek to propose to open the matters, which you have invited me to open, now in relation to the Council’s views on the case and of the Indicative Sanctions and would prefer to do so on 5 and 6 August.
THE CHAIRMAN: Yes, I understood that to be the case. I am sorry if the terminology was slightly confusing. Mr Coonan, are you content?
MR COONAN: I have no observation to make. We respectively agree with the proposal.
THE CHAIRMAN: So we will conclude our proceedings now and we will resume again at 9.30 on 5 August.
(The Committee adjourned until 5 August, 2004)