Cot death, infanticide & child protection

GENERAL MEDICAL COUNCIL

PROFESSIONAL CONDUCT COMMITTEE

On:
Thursday 5 August 2004

Held at:
St James’ Buildings
79 Oxford Street
Manchester M1 6FQ

Case of:

DAVID SOUTHALL MB BS 1971 Lond
(Day Eight)

Committee Members:
Professor 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, instructed by Messrs Hempsons, appeared on behalf of Professor Southall, who was present.

MR R TYSON, of Counsel, instructed by Messrs Field Fisher Waterhouse, appeared on behalf of the Council and the Complainant.

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(Transcript of the shorthand notes of TranscribeUK
Tel No: 0208 614 5799)

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INDEX
Page

SUBMISSION by MR TYSON 1

SPEECH IN MITIGATION by MR COONAN 17

HEY, Edmond Neville, Sworn

Examined by MR COONAN 26
Questioned by THE COMMITTEE 31

CHIPPING, Patricia Margaret, Sworn

Examined by MR COONAN 32
Cross-examined by MR TYSON 35
Questioned by THE COMMITTEE 37
Further cross-examined by MR TYSON 40
Re-examined by MR COONAN 40

SPEECH IN MITIGATION by MR COONAN, continued 41

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THE CHAIRMAN : Good morning. This is the resumed hearing into the case against Professor Southall. Professor Southall is present, and is represented by Mr Kieran Coonan, of Counsel, instructed by Hempsons Solicitors. Mr Richard Tyson, of Counsel, instructed by Field Fisher Waterhouse, appears on behalf of the Council.

I ought to remind members of the press that there is an injunction to protect the identity and the address of Child A. This was served at the first hearing, and copies are available for the press if it so wishes. Mr Tyson, we are ready for you

MR TYSON: Sir, can I start by saying that I not only represent the General Medical Council, but I also represent Mr Stephen Clark. Can I remind you of my function at this stage, and take the Committee to rule 28.

THE CHAIRMAN: This is behind tab C.

MR TYSON: The material part reads,

“Where, in proceedings under rule 27, the Committee have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the Chairman shall invite the solicitor or the complainant, as the case may be, to address the Committee as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner.”

There are those three areas which I am invited to cover.

I propose to deal with the Complainants’ submissions in five ways: firstly, to remind you of the salient aspects of the facts and head of charge; secondly, to look at the circumstances from Stephen Clark’s perspective; thirdly, to look at the circumstances from a wider perspective; fourthly, to look at the relevant edition of Good Medical Practice, to assist you on serious professional misconduct and, lastly, to make submissions on indicative sanctions.

Before I reach those five main headings, there are a number of preliminary points that I wish to make, and the first is an important one, and relates to what you have just been saying in relation to the press, sir. You, the Committee, have to make your determination on the evidence that you have heard. There has been an enormous amount of publicity and public interest in this case – rightly, you may think, in view of the serious issues that it has caused – but I would ask you and your Committee to disregard any media comments or reporting on this case, and deal with the matter, as I am sure you will, solely on what you have heard and read at these hearings.

The second preliminary point I would like to make is this: this is not a one-off incident. We have all dealt with matters involving practitioners where, as it were, it has all gone wrong on the night. Here, we would submit, there has been a sustained pattern of irresponsible and inappropriate behaviour spread over some five months, from April 2000, when the Dispatches television programme was broadcast, up to September 2000, when Professor Southall wrote his, by now, infamous e-mail declining to place any caveat in his medical report, and going further than hitherto in his certainty that Stephen Clark was responsible for the death of his two children.

One of the most disturbing aspects of this case, you may think, is that this pattern or behaviour or, perhaps better, misbehaviour, is that it escalated in its seriousness. This can be shown quite easily by comparing your findings in head of charge 6, where you found that certain actions were either precipitate or responsible to your findings on head of charge 8, where you found that his actions in relation to head 7 were individually and/or collectively inappropriate, irresponsible misleading and/or an abuse of his professional position. It is our submission that Professor Southall became more high-handed and more dogmatic as the events unfolded.

The last, but very important, preliminary point I would wish to make is this: there have been no adverse findings by the Professional Conduct Committee, nor any letters of caution emanating from the PPC, against Professor Southall in the past. Thus, he comes before you as a man of good character as far as the GMC is concerned.

Can I now take you briefly to the heads of charge, and remind the Committee of various aspects. You will recall what is said in heads 1, 2 and 3, and you recall, as a result of a meeting with Detective Inspector Gardner, as a result of head 4, he told that inspector that he considered that Stephen Clark had suffocated his son, Christopher Clark, in a hotel prior to his eventual death. Stephen Clark was thus implicated in the deaths of both Christopher and Harry, and there was thus concern over Stephen Clark’s access to, and the safety of, the Clarks’ third child.

Then, the matters set out in head of charge 5:

“At the time of meeting Detective Inspector Gardner, you

a. were not connected with the case,

b. made it clear that you were acting in your capacity as a consultant paediatrician with considerable experience of life threatening child abuse,”

I would like to take the next three together, and make some submissions on them.

“c. were suspended from your duties by your employers, the North Staffordshire Hospital NHS Trust…,

d. knew that it was an agreed term of the Trust’s enquiries that led to such suspension that you would not undertake new outside child protection work without prior permission of the Acting Medical Director of the Trust,

e. had not sought permission of the Acting Medical Director prior to contacting the Child Protection Unit of the Staffordshire Police and/or meeting with Detective Inspector Gardner…”

Dealing with those three subheads, c, d and e, you will recall that serious complaints had been made to the Trust about Professor Southall that came under the category of personal misconduct. That is how it was described in the letter you have in your bundle, at page 1 of C1. As a result, even before his eventual suspension in November 1999, in June 1999, the head of charge 5d position had been reached.

In that context, Professor Southall’s behaviour in not seeking Dr Chipping’s approval or permission before contacting, first, the child protection unit or, then, some six weeks later, Detective Inspector Gardner, must, in our submission, alone justify the two descriptions found by you in head of charges 6a and b, namely, those actions were precipitate and irresponsible.

You will recall, doubtless, the evidence given by Dr Chipping of her astonishment – I think that was the word she used – that she had not been told by Professor Southall that he had made contact with those organisations without talking to her, and you will also recall, doubtless, Professor Southall's woeful explanation for not telling her, namely, that he thought his reporting to these organisations might not lead to anything happening.

Can I now go to head of charge 5g, which you found proved – namely, that the professor had a theory about the case set out in head 4, that he presented as fact as underpinned by his own research. This is an important finding by you, in our submission, because it shows that, from an early stage, and with wholly inadequate material, Professor Southall was presenting his theory as fact. Simply based on the very uncertain edifice of watching a television programme about a nosebleed in a hotel, he made the quantum leap to conclude that Stephen Clark had murdered his two children.

As to whether Professor Southall’s own research in fact justified such a conclusion, let alone its inadequate factual matrix, the Complainants rely, sir, on your compelling analysis as to the research as put to Professor Southall at the hearing. The Complainants would submit that your finding under head of charge 5g alone justifies the two descriptions given in 6a, certainly precipitate and, clearly, irresponsible.

Then one comes to head of charge 7, and you recall that that relates to the report which the professor produced in August 2000, and his admission that, at the time he produced his report, he did not have any access to the case papers, including medical reports, laboratory investigations, postmortem records, medical records and x-rays. He had not interviewed either Stephen or Sally Clark. His report concluded that it was extremely likely, if not certain, that Mr Clark had suffocated Christopher in the hotel room, and that he remained convinced that the third child of the Clark family, Child A, was unsafe in the hands of Mr Clark, and implied that Mr Clerk was responsible for the deaths of his two eldest children.

Then I turn to head d, which we dealt with in another context earlier, and it is head e, and your finding on that head, which I would like to make some small submissions on.

“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,”

This is an important subhead. Firstly, the report was designed to be used in a court of law, and expressly said that it could be used in a court of law, and several consequences flow from that, which I will deal with later.

Secondly, the statement of truth at the bottom of the report was, simply and clearly, unsustainable. It is, in our submission, simply impermissible for Professor Southall now to seek to rely on the apparent and unacknowledged help given to him by Professors Meadow and Green to bolster his medical knowledge about the case.

The report still, and fatefully, lacks the access to the material and information set out in head of charge 7a. Also, you would have noted that we did not hear from either Professor Green or Professor Meadow in support of their apparent input, and we would submit that it was misleading – one of your findings on head of charge 8 – for Professor Southall not to mention their input.

Can I now deal with heads of charge 7f and g.

“f Your report contained no caveat to the effect that its
conclusions were based upon very limited information about the case held by you,

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 two other children;”

These, the Complainants submit, are the most serious heads of charge, and it is of great concern to the Complainants that as they were admitted from the start by Professor Southall, none of the matters, however, in head of charge 8 were admitted as a consequence. This shows, in our submission, one of the most concerning aspects of this case, namely, Professor Southall’s complete lack of insight into the grave errors that he has made.

Not only did he lack insight, or the insight to put into his report a caveat in the first place, but also he lacked insight to insert such a caveat when his error was pointed out to him by Professor David. You will recall Professor David’s helpful warning to Professor Southall at C1, page 46. We would submit that Professor Southall’s lack of insight was compounded by the nature and forcefulness of his reply to that e-mail, which is at C1, page 47.

Even worse, we would submit, on the question of lack of insight, is his lack of insight as demonstrated at the hearing, for, by the time we get to the hearing, we have the enormous benefit, you might think, of hindsight. However, even with the benefit of hindsight, Professor Southall, you might think, adamantly refused to accept that he had done anything wrong, and he declined to accept responsibility for his actions by admitting any one of the subheads in head of charge 8.

The Complainants would ask you to take particular note of that fact – even having time to think about his actions, and even looking at them four years on from the events of the summer of 2000, he still thinks he is right. He still does not consider, as he thought… that his actions even in relation to the exchange of e-mails between David and himself, that any of the head of charge 8 descriptions applied too.

It follows, we would submit, that a doctor who has no insight, and who arrogantly continues to believe that he is right, is a very dangerous doctor. This is especially so where, as here, we have a doctor who practises in the extremely sensitive and important field of child protection. This is a field where, largely on a consultant paediatrician’s say-so, families can be split asunder, or parents can be convicted of very serious crimes against their children. That is my brief analysis of the circumstances of the background leading to the facts found.

Can I now deal with the circumstances, as it were, from my client, Stephen Clark’s, perspective. My instructions are these: as a fellow professional, Stephen Clark has pursued this complaint with regret. He understands the stresses and strains of professional life. He does not wish to be vindictive. He does, however, seek a situation where no other innocent parent is forced to go through what he has been put through by Professor Southall, namely a false allegation of murdering his own children. That this false allegation was based on the flimsiest of material, and was repeated at the hearing, in Mr Clark’s view, this compounds Professor Southall’s misconduct.

Mr Clark considers, rightly you may think, that the more serious the allegation, the more thorough the investigation is required to support it. Mr Clark would also ask you to consider his own personal circumstances at the time when Professor Southall was making his allegations His wife was in prison, and he was busy campaigning actively for her release as being someone who is innocent of all crimes against her children.

He was also trying to be a single father, having just been allowed to take full-time care of his child, Child A. He was also trying to earn a living. Then Professor Southall comes along and places in extreme jeopardy his chances of continuing to be allowed to care for Child A, for there was a real risk he would be taken away by social services, and you will have noted the discussions as to that effect in the papers. Also, he, himself, was facing a sentence of imprisonment.

The fact of Professor Southall’s dogmatic self-belief, his failure to modify his opinion, his failure to contact Dr Chipping, his complete lack of contrition, his failure to apologise, and his repeating of the false allegation against Mr Clark, forces Mr Clark to conclude (and he asks that you so conclude) that Professor Southall is guilty of serious professional misconduct. He, Mr Clark, would also ask you actively to consider Professor Southall’s erasure from the Register.

Finally, Mr Clark points out that parents in his position have no recourse against doctors such as Professor Southall. Professor Southall cannot be sued for slander in relation to what he has said, because his comments were covered by privilege. He cannot be sued for professional negligence, in these kind of circumstances, by a parent. Only the Committee can protect parents put in the position such as he has been put.

Can I deal with the circumstances from a slightly wider perspective now, because the Complainants would submit that this case has wider implications, and is of possibly greater importance than the consequences to an individual doctor. Can I pose these wider circumstances in the form of three questions: first, what is acceptable for medical experts to put in medical reports; secondly, how can public confidence be maintained in child protection arrangements? There is a great public fear of an all important doctor being able to determine, or to significantly influence, what should happen to their children. The third question is this: what can the GMC itself do in its role to protect the public and the public interest?

Can I deal, first of all, with the role of medical experts in this area. There is guidance given by Wall J in his handbook, to which I am going to take you to various passages in a moment. You may recall (and, if you do not, the passage is at day 6, page 30) that Professor Southall accepted that this handbook gave very good guidance to medical expert witnesses in this field. The problem is that he did not follow such guidance.

Can I take you to C4, please, which is the expert medical … it might be C2. Can I ask you to delve your way behind tab 6, to about halfway through to page 348., There we see the handbook to which I have been referring, and which Professor Southall commented favourably upon. Can I take you to a few passages in that, and ask the Committee to turn to page 367. You will see this is a chapter entitled, “The Respective Roles of Expert and Judge: Why the Professional Integrity of Experts is so Important”. Can I take you to the passage at 3.7 on that page, which reads,

“It follows that the dependence of the court on the skill, knowledge and, above all, the professional and intellectual integrity of the expert witness cannot be over-emphasised. Judges have a difficult enough task as it is in the sensitive child cases. To have, in addition, to resolve a subtle and complex medical disagreement or to make assessments of the reliability of expert witnesses not only adds immeasurably to the judges’ task, but given their fallibility and lack of medical training, may help to lead them to false conclusions.”

The next passage is at page 370, and it is under chapter 4, “The General Duties of Experts”, and, at 4.2, we will see it says,
“Mr Justice Cresswell said that the duties and responsibilities of expert witnesses included the following…”

Can I take you to subparagraph 5, where it says,

“If an expert's opinion is not properly researched because he considers that insufficient data is available then this must be stated with an indication that the opinion is no more than a provisional one.”

Of course no such caveat or statement existed in the report of 2000 in this case.

Can I then take you to page 372, under a general title, “The dangers arising from a misleading or tendentious opinion: the duty not to mislead”, and take you to the summary at 4.7.

“What the court expects from you is an objective, independent, well-researched, thorough opinion which takes account of all relevant information, and which represents your general professional view on the issues submitted to you.”

We would submit that the report of August 2000 fails in virtually every respect when set up against that summary.

On the next page, at 373, under the general heading of, ”What you can advise the Judge about”, there is an important paragraph at 5.4.

“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.”

That, you may think, is precisely the trap, or the error, into which Professor Southall fell in producing his report.

Finally, on this area, can I take you, please, to page 381, under the general heading of “Discussions Between Experts prior to Reports being Written”. Could I take you to paragraph 10.5, which reads,

“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.”

That, you may think, is an injunction which Professor Southall completely failed to follow, in virtue of his unrecorded and unacknowledged apparent telephone conversations with Professors Green and Meadow.

Sir, on the issue of being a medical expert in a court, there is a further fear and concern of the Complainants, and that is this: there is an increasing tendency in the courts, particularly the civil and family courts, and in children cases, for there to be one expert only jointly instructed by all the parties. Wall J deals with this in a passage which you will find, again in this, at page 391, paragraph 13.1,

“It is quite comrnon for individual experts in family proceedings to be jointly instructed by the parties to the proceedings. In care proceedings, this usually means that you will be instructed jointly by the solicitor acting for the child, the local authority solicitor and the parents' solicitor(s). The solicitor from whom you receive your letter of instruction mill be the 'lead' solicitor for this purpose, and will usually be the solicitor instructed by the… on behalf of the child.”

The judge then goes on to set out why those instructions are used and then, over the page, the advantages of using such jointly instructed experts.

However, there is a passage on page 392, under the title of “The disadvantage of joint instruction”, which may make salutary reading. At 13.11, it reads,

“To be the sole, jointly instructed expert in a difficult case places a considerable burden of responsibility on the expert concerned. The point on which you are being asked to advise may, you feel, be determinative of the child's future, yet there is nobody against whose opinion your diagnosis can be tested or with whom the burden of decision-making can be shared. You do not have a colleague from the same or a similar discipline instructed in the case with whom you can discuss your vies. Your work is thus not the subject of peer review.”

Sir, we saw in this case that Professor David was the single joint expert in the Clark care proceedings concerning Child A. You may think that if you are a single joint expert, that is a huge responsibility, and the professional integrity of such an expert is paramount. The question that the Complainants would pose to you is this: based on what you have learnt in this case, would you be happy for Professor Southall to be appointed as a court expert, let alone a single joint expert, in any cases involving alleged abuse of children?

This leads to the second wider question that I posed, namely, the issue of public confidence in child protection arrangements. This arises out of the lack of public confidence in paediatricians, as may be described as over-diagnosing child abuse from the Cleveland hearings and report, to, right up to date, the case of Sally Clark and Angela Cannings. Public confidence in doctors, especially in paediatricians, in correctly identifying true cases of abuse, is, we would submit, in some sort of a crisis. We would submit that the only way of restoring public confidence (and, incidentally, getting more paediatricians to be involved in this sensitive, difficult and important work) is for this Committee to take strong, effective and public action against paediatricians, such as Professor Southall, who have been found, in the wording of head of charge 8, to have behaved inappropriately, irresponsibly, misleadingly and to have abused their professional position.

Sir, the third issue on the wider issues, as to the GMC’s, or your, role in protecting the public against the kind of behaviour demonstrated in this case, I will ask you to consider later when I take you through the contents of the indicative sanctions.

Can I come to Good Medical Practice, and ask the Committee to look at the July 1998 version, which is blue in its original form. This document of course does not exactly cover the issues raised by this case, but there are a number of paragraphs which may assist you in coming to your determination as to whether this is, what we would submit to be, undoubted serious professional misconduct.

Can I, first, take you to paragraph 3, and ask you to look at the third bullet point, which states that in providing care, a doctor must,

“be competent when making diagnoses and when giving or arranging treatment.”

We would submit that this doctor was incompetent when he made a diagnosis which was, effectively, that due to there being an apparent life-threatening event, my client was responsible for those deaths and, as a result, the third child was in danger.

Can I take you to paragraph 7, under “Maintaining your Performance”, and ask you to look at the second bullet point there, where it says,

“You must work with colleagues to monitor and maintain your awareness of the quality of the care you provide. In particular, you must:

- respond constructively to assessments and appraisals of your professional competence and performance.”

That can be looked at, we would submit, in the context of when you get a warning – a constructive warning – as Professor David gave to Professor Southall in this case, his role was to respond constructively, and not destructively by hardening his opinion.

Can I just, in passing, mention paragraphs 16 or 17 – what the doctor has to do when things go wrong. I say in passing, because it is dealt with in somewhat greater detail under, I think, paragraph 56, or so, of the indicative sanctions, and I will be taking you to it there. You will note, in the middle of paragraph 16, it says,

“As a doctor you have a professional responsibility to deal with complaints constructively…”

Then, in paragraph 17,

“When appropriate you should offer an apology.”

That is if a patient under your care has suffered serious harm. We would submit that serious harm in this case was serious harm to Stephen Clark’s feelings and integrity as a result of the false allegation made in this case.

Again, in relation to reports, can I ask you to look at paragraph 55, which has been relied on in the past in relation to medico-legal reports by committees such as yours. It is under the heading of “Signing certificates and other documents”.

“Registered medical practitioners have the authority to sign a variety of documents, such as death certificates, on the assumption that they will only sign statements they believe to be true. This means that you must take reasonable steps to verify any statement before you sign a document. You must not sign documents which you believe to be false or misleading.”

We would submit that, in the context of signing the medical report in this case, particularly as you sign it under a statement of truth, Professor Southall completely failed to take reasonable steps to verify that statement.

On serious professional misconduct generally, the allegations in the head of charge, and the answers given to them, whether admitted or found proved, are, in our submission, about as serious as they can be. Here, we have a doctor, on extremely limited information, accusing a man of murdering his two sons and, when the difficulty of his position is put to him, hardens his stand to use the criminal standard of proof. With the danger of repeating myself, you will recall that even with the benefit of hindsight, and notwithstanding the serious charges against him, Professor Southall still remains of the same view.

We would submit that this is arrogance and irresponsibility of the highest order. It is clearly serious professional misconduct, in our submission, and it is behaviour from which the public needs to be protected.

In that context, can I please come to the indicative sanctions, and I will taking this from the May 2004 version of those indicative sanctions.

THE CHAIRMAN: They are behind tab D.

MR TYSON: Sir, before I depart from Good Medical Practice, it may be that, under paragraph 3, you feel that some element of the first bullet point also applies in this case that, in providing care, a doctor must recognise and work within the limits of their professional competence. In assuming the facts, as this doctor did, and making the allegation and “diagnosis” that he did in his report, we would submit he was acting outwith the limits of his professional competence.

Dealing with indicative sanctions… and can I say, right from the start, as a prosecutor, this is a new role to deal with these, and it is with some considerable circumspection that I make submissions on this aspect of the case.

Can I take you to paragraph 4, first, just to remind you of various aspects. Paragraph 4 reads,

“Doctors practise medicine in order to serve the interests of patients. It is a central function of the Committee to promote the interests of patients and to protect them by securing good practice of medicine by doctors who are fit to practise.”

Can I then take you to paragraph 10, under the title, “The Purpose of the PCC’s sanctions”,

“The purpose of the sanctions is not to be punitive, but to protect patients and the public interest, although they may have a punitive effect.”

Then we deal with the public interest, and this is the third question I raised of general importance. Paragraph 11:

“There is clear judicial authority that the public interest includes;

a The protection of patients

b The maintenance of public confidence in the profession.

c Declaring and upholding proper standards of conduct.”

The Complainants would submit that each of a, b and c is applicable in this case, for the reasons I have essentially outlined in my remarks hitherto.

You have a role in the protection of patients; you have a role in the maintenance of public confidence in the profession and you have a role in declaring and upholding proper standards of conduct, because, in each case, we would submit that Professor Southall, on the facts as found proved, has fallen in error.

Can I take you to paragraphs 16 and 17, sir, which give guidance as conditions. I will come later to the specific points on conditions when we come to page 10 but, under the guidance on conditions, at paragraph 16, it reads,

“Conditions may be imposed up to a maximum of three years in the first instance, renewable in periods of up to 12 months thereafter. This sanction allows a doctor to return to practice under certain conditions, (eg, restriction to NHS posts or no longer carrying out a particular procedure). A purpose of the imposition of conditions is protection of patients. In some cases the Committee may decide that whilst conditional registration alone is insufficient, further training may help to rectify the problem. This would be appropriate where there is evidence of incompetence or significant shortcomings in the doctor’s practice but where the Committee can be satisfied that there is potential for the doctor to respond positively to retraining.”

Pausing there, our submission would be that whatever incompetence and significant shortcomings you find in Professor Southall’s practice, there is no potential for retraining here, because of his lack of insight that there are any shortcomings in his abilities.

I carry on,

“The purpose therefore being to enable the doctor to remedy any deficiencies in his or her practice whilst in the meantime protecting patients from hard. When assessing whether this potential exists, the Committee will need to consider any objective evidence submitted on behalf of the doctor, or that is otherwise available to them, about the doctor’s practice.”

Paragraph 17:

“The objectives of any conditions or educational guidance should be made clear enough for a Committee, at any future resumed hearing, to be able to ascertain the original shortcomings and the exact proposals for their corrections.”

That is an important passage, in my submission, because one has to ascertain the original shortcomings and exact proposals for their correction. In our submission, whatever (and they are considerable) shortcomings have been shown by Professor Southall in his course of conduct in this case, the exact proposals for their correction would be extremely difficult, dealing with the nature of the man that you are.

“Only with these established will it be able to evaluate whether they have been achieved. Any conditions should be appropriate, proportionate, workable and measurable, and in practical terms should be discussed fully by the Committee before voting. Before imposing education conditions the Committee should satisfy itself that:

a The problem is amenable to improvement through education.”

Whatever other conditions my learned friend may be proposing, I doubt he would be proposing educational conditions, and it would be ludicrous if he did.

“b The objectives of the conditions are clear

c A future Committee will be readily able to determine whether the educational objective has been achieved and whether patients will or will not be avoidably at risk.”

That is the general guidance on conditions.

The general guidance on suspension is contained at paragraph 19.

“Suspension can be used to send out a signal to the doctor, the profession and public about what is regarded as unacceptable behaviour. Suspension from the Register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the period of suspension. It is likely to be appropriate for misconduct that is serious, but not so serious as to justify erasure (for example where there may have been acknowledgement of fault...”

There are many things in this case, but there has been not one iota of acknowledgement of fault.

“… and where the Committee is satisfied that the behaviour or incident is unlikely to be repeated).”

It may be the Committee would have concerns as to what the doctor may do in the future, and cannot be satisfied that the behaviour or incident is unlikely to be repeated.

“ The length of the suspension may be up to 12 months and is a matter for the Committee's discretion, depending on the gravity of the particular case.”

Matters of erasure, sir, are dealt with under paragraphs 22 to 24. Paragraph 22:

“Erasure from the Register is appropriate where this is the only means of protecting patients and/or maintaining public confidence in the medical profession.”
Then there is guidance from the Privy Council that it is not necessary to erase.
“’... an otherwise competent and useful doctor who presents no danger to the public in order to satisfy [public] demand for blame and punishment.' “

Paragraph 23:
“This should be weighed against the words of Lord Bingham, Master of the Rolls, in the case Bolton v Law Society, adopted by the Privy Council in the case of Dr Gupta [2001]:
‘The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.’”

Paragraph 24:

“The same judgement emphasised the Committee's role in maintaining justified confidence in the profession and in particular that erasure was appropriate where despite a practitioner presenting no risk:

‘...The appellant's behaviour had demonstrated a blatant disregard for the system of registration which is designed to safeguard the interests of patients and to maintain high standards within the profession.’”
Sir, as against that general guidance, there is particular guidance for each sanction given later. That starts at page 9, and starts with the factors required to be present for a reprimand. I am not going to submit on reprimand, because that would be wholly inappropriate, in our submission, relating to the gravity of the matters in this case.
Can I deal with conditional registration, set out in page 10, where it says,
“This sanction may be appropriate when…”

Before I go through the factors, conditions of course are superficially attractive in this case. There could, for instance, be a condition of no involvement whatsoever in child protection work, whether such work emanates from within or without the Trust – a wholesale prohibition against what I think is called both category I and category II work. Bearing in mind that I would anticipate that may be something that might be put forward by my learned friend, we would submit that would be superficially attractive but, first of all, can we just see whether the factors required for conditions are there. It says,

“… when most or all of the following factors are apparent…

- No evidence of harmful deep-seated personality or attitudinal problems.”

We would submit there are attitudinal problems in this case, which make the imposition of conditions unwise. We have seen Professor Southall’s attitude, that he is right and virtually everybody else is wrong.

The second factor:

“ Identifiable areas of doctor's practice in need of assessment or retraining”
We would say that is not a factor in this case.

Thirdly:

“Potential and willingness to respond positively to retraining.”

This is not a factor in this case which requires you to consider because retraining is not an issue.

“The conditions will protect patients during the period they are in force.”

Well, you may think that applies to any conditions that are placed on any doctor. That seems to add nothing to any of the others.

Lastly,

“It is possible to formulate appropriate and practical conditions to impose on registration.”

I have, for your benefit, as it were, formulated possible conditions, but we would submit that there are problems with any such conditions.

The first problem of course is the history of non-compliance with conditions in this case – behaviour that was admitted in heads of charge 5d and e, by not seeking the permission of Dr Chipping, and that was behaviour you found to be precipitive and irresponsible. Professor Southall is a doctor who thinks he knows best, or what is in either his best interests or a child’s best interests, and using the cloak, as he did in this case, of what is in a child’s best interest, he feels that that overrides any other consideration. Using the guise “in a child best interests”, can you be satisfied that if he consider his course of action is in the child’s best interest, he will comply with any condition this Committee puts on? We would submit that the past is the best guidance to the future as you can possibly get, and here he completely overrode Dr Chipping’s written sanction, to her, as we heard, astonishment.

A further point about conditions that we would make is that they are of limited duration. This is a case, you may well think, that requires a sanction not of a limited duration.

Fourthly, the original shortcomings – that is the word from paragraph 17 – have not been accepted, and they are not susceptible to correction – again, using the words from paragraph 17 – bearing in mind, we would submit, Professor Southall’s attitude.

I then go to suspension, where the facts are set out at page 11.

“This sanction may be appropriate when some or all of the following factors are apparent…”

Then one would look, with some hesitation, at number 3.
“No evidence of harmful deep-seated personality or attitudinal problems.”

The penultimate one, about which I have made strong submissions to you already,

“Committee satisfied doctor has insight and does not pose a significant risk of repeating behaviour.”

The last one,

“Patients' interests are sufficiently respected.”

We would say that the three I have highlighted are not apparent in this case and, thus, you should hesitate when considering suspension.

Remember, there has been no acknowledgement of fault whatsoever here, which is a factor that paragraph 19 asks you to look at. We would submit that you cannot be satisfied that the behaviour will not repeated – that is another paragraph 19 factor – and, again, as with conditions, that suspension, of its very nature, is of limited duration.

Then we come, at page 12, to erasure, where it says,

“This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a doctor and involves…”

We say it involves at least three of the following in this case and, firstly, the second one;

“Doing serious harm to others (patients or otherwise) either deliberately or through incompetence and particularly where there is a continuing risk to patients.”

We would submit that he did do serious harm through his writings and through his views, and to, amongst others, Stephen Clark.

The next one:

“Abuse of position/trust (particularly involving vulnerable patients) or violation of the rights of patients.”

I do not have to remind you, sir, that one of your findings under head of charge 8 is that this doctor has abused his professional position. You may think that this involved a vulnerable patient of children, both, as it were, dead and alive, and violated such rights that Professor Southall felt that Stephen Clark had.

Perhaps, the very important one is the last one, which is,

“Persistent lack of insight into seriousness of actions or consequences.”

I have already made submissions on persistent lack of insight.

As at least three of those factors are present, we would submit that you would have to look very carefully at whether you are in fact forced to erase Professor Southall

I lastly deal with some supplementary guidance, which follows on from this, and take you to paragraph 54, which is a general guidance about how you should listen to, and take into account, references and testimonials. It indicates they,

“… will have been provided in advance of the hearing and therefore may not stand as an accurate portrait in the light of the facts found proven. The Committee will need to consider all such factors when looking at references and testimonials.”

Of course you will hear from character witnesses, or read from the documents which will be produced on behalf of Professor Southall (none of which I have seen or had privy to, but I have no doubt that they will indicate) that he has had a distinguished career, and is a man of undoubted skills and commitment. The Complainants would not gainsay any of that – he has had a distinguished career, and he is a man of undoubted skills and commitment.

The concern here is the use to which, on the facts found proved, the professor has put his undoubted abilities and skills. We would submit that he has shown arrogance, lack of judgment and leapt to unacceptable conclusions, which he has unacceptably sought to prevent or protect here. In that context, you will read, doubtless, when you have retired, paragraphs 55 to 56, on expressions of regret and apology. Can I just point out that this doctor has shown no humility; he has offered no apology; he has shown no insight, and he has not taken any steps to prevent reoccurrence of the incidents that took place here. These are, we would submit, important factors to take into account according to paragraphs 55 and 56, and the Complainants trust you will do so in coming to your determination in this case. Those are my submissions on behalf of the Complainants.

THE CHAIRMAN: Thank you. Mr Coonan, it is ten to eleven. I think we ought to take a short break, and then it will allow you to run on without further impediment.

(The Committee adjourned for a short time)

MR COONAN: Sir, may I start by inviting you to receive a bundle of testimonials and documents. (same handed)

THE CHAIRMAN: I gather this is D4.

MR COONAN: Can I introduce this. You will see that it is a weighty bundle. There are some 142 pages here – letters from a large number of professional colleagues – 85 in number. They are pretty well all written post the decision of the Committee. I say that because my learned friend comments in relation to paragraph 54 of the indicative sanctions. However, there are one or two which bear a date which precedes the hearing. In those cases, the authors, by and large, purport not to comment on the facts of the case, and you may think that is entirely proper.

You will see the first tab – that is numbers 1 to 47 – comprises of professional colleagues and, in the latter part, consultant colleagues from the North Staffordshire NHS Trust. Then, in the next section, to which I invite you to pay particular regard, are testimonials from his nursing colleagues, and then the last two sections, or main sections, are concerning his work with Child Advocacy International, which you will hear more about in due course. Lastly, just out of interest perhaps, at number 85, there is a letter from Miss Catherine Williams, who you will remember was the author of the advice in C4, from the University of Sheffield, about the duties of experts, which was referred to on the last occasion.

Sir, I propose to highlight the first five testimonials, using my words, and then I am going to invite the Committee, if that is agreeable, to take its own time to read the rest of this document. I do not think it would be helpful for me just simply to repeat that which is in the document. All of you can read it. I hope that finds favour with the Committee and may save time.

Could I, therefore, begin by looking at the first testimonial which, if you turn to the second page, you will see is from Professor Sir Alan Craft, the current President of the Royal College of Paediatrics and Child Health, and is dated 30 July of this year. He writes as follows:

“I am a consultant paediatrician of 26 years standing and have been involved in all aspects of the care of children including child protection. During my career my work has included being the designated doctor for child protection for Newcastle for a number of years and this gave me an insight into the issues involved in this difficult but essential part of paediatric practice. Currently I am the elected President of the Royal College of Paediatrics and Child Health, having been Vice President since 1998. I am also the Chairman of the Academy of' Medical Royal Colleges, which comprises the presidents of all of the various specialties eg, physicians, surgeons.
.
I recognise that Professor Southall has been found guilty of a serious error of judgment following his recent appearance before the GMC. I am not in a position to comment on the specific case but would like to take the opportunity to comment on his previous work and professional standing. My opinions are on thc basis of my bring a senior paediatrician who has never worked directly with Professor Southall but has known of him and of his important work for many years.

There is no doubt that he has been an academic leader and has undertaken extremely important ground breaking research which has greatly influenced the way that babies and children have been managed all over the world.

His pioneering work on monitoring of cardiac and respiratory function in large numbers of normal children was difficult to do but has really been crucial to our understanding of sudden infant death syndrome. Similarly his somewhat controversial work with covert video surveillance has been used to save many children's lives.

All of his work has been done to the highcst of ethical and scientific standards and has been published in the top journals in the field.

In 2000/01when I was Vice President of the RCPCH I was aware that the College received a request from Professor Southall's employer to provide the names of paediatricians who could undertake a completely impartial review of some of Professor Southall’s clinical work in child protection. Our involvement as a college was to provide the names of three paediatricians, two very senior and one more junior, the latter working in a hospital similar to Stoke. We were confident that these paediatricians would undertake this work professionally and with dispassion. We did not see the report…”

He titles it.

“…nor did we expect to, as it was done as a contract between the Trust and our suggested team. However, I have now been sent a copy of the report by Dr Pat Chipping, Medical Director of the Trust and have carefully read it. This was a detailed review of how Professor Southall managed nine cases where a diagnosis of probable child abuse was made.

The review panel found no cause for concern in his child protection work in these 9 exemplar cases. I quote some of their conclusions verbatim:

‘The main criteria, when undertaking child protection work, is that the best interests of the child are paramount. The decisions which Professor Southall made were taken in good faith and were, without exception, taken in the best interests of the child.’

‘He provided opinion and support for colleagues, both in the routine management of child protection cases and in extremely complex cases.’

‘He had developed an expertise, through experience, which underpinned the opinions he expressed.’

‘In his child protection work he considered the welfare of children under his care and co¬operated well with social services, following the principles of “Working Together”. He shared information and provided reasonable advice.’”

Working Together of course is the departmental guidance paper published by the department, of which you are probably aware.

"’The culture at the time outlined in “Working Together” was one of decisiveness, prevention and protection. Professor Southall took a lot of responsibility in the management of complex child protection cases. When we asked him about certain practices it was clear that he has sought to learn and modified practice accordingly. This is all we can expect and in fact is the way we expect to make progress, indeed we feel that this is an essential part of continuing professional development.’

I think that the comment about his willingness to learn from his practice and modify future practice is of particular relevance to his current situation.

Finally I would like to comment on his international humanitarian work which is largely undertaken under the banner of Child Advocacy International, a charity which he set up and which receives all of the fees which he would personally receive for his medico legal work. He and his colleagues are prepared to provide support in areas where other charities might fear to tread. To some outsiders this might be seen as carefree disregard for his own life and of colleagues whom he takes along with him. I firmly believe that this work is done from the highest of motives and certainly not for self-aggrandisement.

Professor Southall is a highly respected clinician, clinical scientist, innovator and leader within our profession. I would hope that he can continue to inspire and lead for many years to come. Many children owe their lives to him both by his direct clinical involvement but elsewhere in the UK and wider world where the firm scientific foundations which he has given have protected children.”

I now turn to the second document, which is from Professor Sir David Hall, currently professor of community paediatrics at the University of Sheffield. It is dated 30 July.

“May I first introduce myself as a paediatrician with wide interests, both clinical and academic, and as the immediate past president (2000-2003) of the Royal College of Paediatrics and Child Health (RCPCH).
I am familiar with the facts of the case for which Professor Southall has appeared before the GMC. I understand that he has been criticised for the manner in which he intervened in the Clark case. Nevertheless, I wish to present this testimonial on his behalf and to emphasise his exceptional and continuing contribution to paediatrics.
This letter sets out my knowledge of David Southall and his work, and to explain as far as I am able the commitment and passion that he brings to his work with and for children.
I have known David Southall for around 20 years, initially by reputation and his published papers and then personally.
Around 1996, along with other senior academics in my University, Sheffield, I had a number of conversations with him about his wish to establish an academic unit in international child health at a major University. I will say more about that work later.
During my term of office as President of the RCPCH, I learned a great deal more about his work because of the various complaints made against him.
As a result of these various contacts I feel that I know him fairly well.

David Southall's early career involved extensive use of physiological monitoring of cardiovascular and respiratory functions in infants and children. He was highly regarded as one of the brightest and most rigorous of clinical researchers.
In 1982 the late John Emery, a paediatric pathologist, publicly expressed a concern that some cases of sudden unexplained infant death (SIDS) are probably due to smothering. He based this on a variety of indirect evidence. David Southall challenged these views and argued that putting forward such ideas without firm evidence was unfair. Subsequently he turned his considerable research skills to addressing the question, by the investigation of possible cases where direct parent action could have been responsible for ‘near-miss’ infant death, using the technique of covert video surveillance (CVS). CVS demonstrated that Emery was right and showed beyond doubt that some parents were indeed smothering their infants and inflicting other forms of harm on them.
This was a controversial technique at the time and a number of professionals and parents were highly critical of the supposed invasion of privacy and of parental rights. At this point I should put my cards on the table and state that in my opinion CVS made an invaluable contribution to our understanding of child abuse and that its use was not merely legitimate, but necessary. Infants are as entitled to benefit from the use of technology in crime prevention as any other members of society.
Subsequently, a number of complaints were made against David Southall. Some of these emerged during the term of office of my predecessor as president of RCPCH, the late Professor David Baum He arranged for an investigation to be conducted into these allegations but regrettably this was not done to an appropriate standard. Therefore, during my term of office as president, it fell to me to assist David Southall's employer in ensuring that a thorough, independent and unbiased investigation was undertaken.
During that time, I remained uncertain about the outcome. My impression of David Southall was that he was a thorough, original and careful researcher but at the same time I saw him as a pioneer, a man who pushed the limits and went where others would fear to tread. I supported him as a colleague but at that stage I would have been very cautious about writing in his support.
By the end of my term of office no less than eight separate lines of enquiry had been pursued into his research and his child protection work. Some of the reports were privileged and were seen only by his employer, but I either saw or knew about all of them. It is a tribute to his careful maintenance of research records, ethics committee approvals, consent forms etc, that by the end of this three-year process I was confident that, notwithstanding the image he presents of a single-minded enthusiast for his research and for the protection of children, no major criticism could be levelled at him in any area of his practice.
As regards his international work, he has set up a charity, Child Advocacy International (CAI), established a number of children's services in troubled areas of the world and has recently published a wide ranging review of the small-arms trade and its impact on women and children in poor countries. Both these activities have placed him at risk professionally and personally. But the impression that he sometimes creates in this high profile work, of a casual disregard for safety and good practice, is incorrect. He started a programme of training for all workers planning to serve in high-risk areas and claims, with some justification, that the safety standards of CAI are at least as high as other aid agencies.

David Southall is an unusual man, single minded and totally committed to what he wants to achieve. In an era when many paediatricians are extremely reluctant to get involved in child abuse cases, or stand out against the tide of opinion, for fear of complaints against them, he will do what he believes to be right without counting the cost to himself. We need people like him who challenge received wisdom, test new ideas and suggest new approaches. They are rare.
RCPCH recently published a survey showing the escalating number of complaints against paediatricians about child protection work and the unacceptable vacancy rate for paediatric child protection posts. Paediatricians have been attacked verbally, threatened physically, demonised in the press, and referred to the GMC for diagnosing child abuse - and for missing it. David Southall is widely respected, as one of the few men who has had the courage to stand up to these attacks and keep on working in the field. His enforced retirement from the scene would have a catastrophic effect on paediatric morale.”
I then turn to page 6, and a letter from Professor Anderson, who is the Joseph Levy professor of paediatric cardiology at Great Ormond Street, dated 29 July of this year.

“I have known David Southall both personally, and through his publications, from the late 1970s. Subsequent to leaving his initial career in general practise, he came to work in the department at the Cardiothoracic Institute, to become the National Heart and Lung Institute, at which I then worked, and of which I subsequently became Director. Thus, I was in close contact with both David and his work from this time until his transfer to take the Chair at Keele University.

I am aware of the complaint has been made against David to the General Medical Council. My understanding is that, based on his own knowledge and research, he considered it necessary to make a personal intervention in the case involving Sally Clark. I understand that the General Medical Council have found that the manner in which he intervened was inappropriate.

Throughout my association with David, I have had the highest regard for his academic achievements. Moreover, I have been struck throughout our time together by his personal integrity, and by his commitment to the welfare of children. Because of this, I wish to write in his support.

His standing in his field amongst his peers is established by the extensive corpus of his published work. Much of his early work in the field of cardiac and pulmonary abnormalities in the newborn was carried out, and written up, whilst we were working in the same department. I collaborated with him in several of the studies concerning abnormalities of cardiac rhythm and breathing in the newborn, and their relevance to sudden infant death syndrome. I can attest to the accuracy and importance of these works. I also supported his decision to extend these early researches to explore the possibilities that death, or acute life-threatening events, could possibly occur as a result of actions wilfully undertaken by one purported to be caring for a child. His findings using covert video surveillance showed unequivocally that some of the purported ‘carers’ were prepared to abuse those allegedly within their care. I was surprised at the controversy engendered by this investigation, since although we had debated, during the preparation of the research application, the rights of the child as opposed to the rights of the parent, there was no question in our minds but that the rights of the child must be paramount. Thus, our department supported David most strongly in this research. It is my opinion that his actions in the current case reflect a continuation of these strongly held beliefs in the pre-eminence of the rights of the child.
I am aware that, since moving from the Royal Brompton to Keele, David's work has continued to generate controversy. It is surely of significance, therefore, that all of the many investigations into these ongoing researches have validated and supported his actions. It is salutary that, despite the many inquiries, David has not only retained his dignity, but has continued to work for the welfare of children. Those who criticise his actions should remember that he demonstrated his commitment not only in his research, but by putting his own life in danger during the recent conflict in the Balkans, where he personally arranged the medical evacuation of sick children.
All of this previous experience shows that David is unprepared to view things as a spectator if he considers that certain aspects have failed to receive the attention that they deserve. I believe that it was his unequivocal commitment to ensuring that justice be seen to be done that triggered him to intervene as he did in the case involving Sally Clark. I would presume that he considered his experience relevant to the potential protection of a vulnerable child. I admire him for continuing to fight for the rights of the children. I hope that the Council will take all his previous achievements and experience into account when seeking to adjudicate this case.”
On page 8, you will see a letter from Dr Elliot Shinebourne, a consultant paediatric cardiologist at the Royal Brompton. This one is dated 18 June.
“David Southall is one of the most outstanding paediatricians I have had the pleasure and privilege of working with. He is also courageous, and honest in his professional work, even when the conclusions are disturbing or uncomfortable.”

He then deals with his experience in earlier years, and I move on to the beginning of page 2, our page 9

“While opposition to covert video-surveillance remained, in the courts the technique was commended by Judges who could thus ensure the safety of the children. When Dr. Southall left the Royal Brompton Hospital for Keele he continued with this technique, which proved successful in protecting children, but not surprisingly continued to give rise to opposition particularly from family members of those who had been found guilty.

I know that Dr Southall has expanded his interests into child protection work, and am not surprised that his views have at times been unpopular. What I have no doubt about is his integrity and burning desire to protect children from abuse of any kind. This he has done in the UK, in Bosnia, for which he was awarded the OBE, and through the charity he set up to help children in less developed countries.

It is not appropriate for me to comment on the present case, but I have no doubt that Professor Southall's concerns are directed solely towards protecting children. Even if on a particular occasion a mistake has been made, this should never detract from the enormously important work he has carried out over many years. It would be a loss to paediatric care if this did not continue.”

Lastly, so far as my recounting of the content of documents is concerned, I take you to page 10, where there is a letter from Dr Pugh, a consultant paediatrician and clinical director of paediatrics at the Mid Cheshire Hospital. I take you to the second paragraph.

“I am a consultant paediatrician at Leighton Hospital… in Crewe and have known Professor David Southall for over 15 years. I am clearly well aware of his extensive clinical and research work in the field of child protection, and like many other Paediatricians have admired his pioneering work in this field, at the same time being aware of the presence of a group of highly vocal vexatious complaints which have and continued to try and slur his reputation at every opportunity.

My contact with Professor Southall has been particularly in relation to his work in paediatric intensive care and as a general paediatrician within North Staffordshire. I and my colleagues have been particularly grateful for his work (in conjunction with Dr Martin Samuels and the other Paediatricians) for the development of a paediatric intensive care unit which has provided an excellent service since its inception to compliment those services already in existence provided by the Royal Liverpool Children's Hospital and the Royal Manchester Children's Hospital. I am personally grateful to David on a number of occasions when he came over to our high dependency unit as the leader of the team to help stabilise and manage children requiring intensive care before being transferred back to his unit in North Staffordshire.

His help, support and practical professionalism has been remembered by experienced members of our nursing staff, and also by parents whom he spoke to prior to the transfer of their child. He was always very supportive and complimentary of our management prior to the arrival of the intensive care team, and always provided feedback. On these occasions he also provided a fine example to our junior staff working with us at that time, and in many situations he arrived first in his car in advance of the North Staffordshire team coming by ambulance.

I know Professor David Southall as a competent, extremely caring and highly professional children's doctor. I have also taken the opportunity to discuss other clinical cases, particularly children with respiratory problems with him. I am aware of his fundamental research work in to the breathing mechanisms of children and infants, and ways of monitoring and investigating this.

I hope and pray that the GMC will not delete this doctor from the Register. We can all make, at times, errors of judgement, and I believe even in this situation for which he is now being judged he was still acting with good intent and motives, namely the protection of the child, something which all practising paediatricians regard as of paramount importance.

I have already mentioned that I have had no specific contact with Professor David Southall in relation to specific child protection cases, but as a doctor who frequently encounters child protection issues as part of my normal hospital based work, and also acting as the named doctor for child protection in my hospital, I feel that if he were deleted from the register this would be a setback for all doctors working in the field of child protection where there is already diminishing morale and poor recruitment.

Children and the vast majority of their parents and families require children's doctors of the calibre of Professor Southall.”

Sir, I pause there because I hope those first five testimonials will have set the scene for what is to follow. The testimonials which follow will deal with – this may be an important distinction – not only his research work and his general paediatric work, but also his work in the field of child protection. Lastly, you will see the work he has done, and it may be said – possibly, there is little dispute about it – of enormous value, in eastern Europe, Afghanistan and Pakistan. If I that meets with your approval, I will sit down and leave you to red the rest of the bundle.

THE CHAIRMAN: Would you like us to read them now, rather than when we go into camera?

MR COONAN: I would prefer it if you read now, because there are some matters arising out of the testimonials which, in effect, go to the question of Professor Southall’s personal attributes which may have a bearing on how you consider the future management of this case.

THE CHAIRMAN: We are perfectly happy to do that, but I was not sure. Sometimes, we are asked to read them before, but we are happy to do it now. I think we ought to adjourn the Committee again, because it will take some time to read these. We will let you know when we have completed the task, and we will start again.
(The Committee adjourned)
(The Committee adjourned for lunch)
THE CHAIRMAN: Good afternoon.
MR COONAN: Sir, may I call Dr Hey, please.
EDMOND NEVILLE HEY, Sworn

Examined by MR COONAN

Q Dr Hey, can you give the Committee your full name, please.
A Edmond Neville Hey.

Q Can you give the Committee your medical qualifications.
A I qualified in medicine in the University of Oxford, and hold a doctorate of medicine from the University of Oxford. I am also a Fellow of the Royal College of Physicians, and an honorary Fellow of the Royal College of Paediatrics and Child Health.

Q What is your current position?
A I am retired. I originally trained as a research physiologist, and then worked for ten years for the Medical Research Council before taking up clinical training. After working as the first assistant to Professor Court in the University of Newcastle, I obtained a consultant post as a consultant physician at the Hospital for Sick Children at Great Ormond Street. Then, I returned to the north of England to set up neonatal services, and took early retirement nine years ago now.

Q For the sake of completeness, what is the name of the hospital in Newcastle where you had your post?
A It has changed its name, like many hospitals have, many times. I worked for the Princess Mary Maternity Hospital, which was actually older than the Royal Victoria Infirmary, to which it was allied.

Q Can you help the Committee as to your knowledge of Professor Southall – first of all, as to his general reputation in the research and scientific or clinical field, and also, separately if you wish, him as a person.
A I first came across Professor Southall on the far side of the table, a bit like I am now, because I was a scientific advisor to the foundation for the study of infant death, as long ago as 1977, when he came with a grant application, jointly with Elliot Shinebourne, at the very start of his career. I never met him personally at that time, but had to adjudicate the quality of his research, and to adjudicate on a further follow-up grant. As the research evolved, it became probably the most expensive of all the early research grants that the foundation ever funded.

I came across him again professionally because I was asked to referee a major research grant that he lodged with the Medical Research Council ten years later. I had never actually met him face to face, to shake hands with him, or talk to him, until after the events that this meeting is all about were over, in October 200.

Q The Committee has heard evidence about those matters, principally from Dr Chipping when she gave evidence at various stages of the inquiry. Can you help the Committee, please, about any assessment you can make about the application that Professor Southall was making at that earlier stage for funding for research.
A Yes. It was a complex, very carefully thought through, piece of work, which was undertaken with, really, very great rigour and care, and actually only eventually published in the British Medical Journal after a lot of care and thought had been taken over it, almost ten years after the grant first opened.

The second grant application to the Medical Research Council, which was in an area where I was more personally experienced – it was a randomised control trial, looking into options for the care of very premature babies with breathing difficulties – was again an extremely well thought through trial. I was told by the Medical Research Council (because they always feed back information to their referees) that it had an Alpha rating, which was about as high a rating as it could get, but did not actually end up being funded because, at the time in question, the research funds did not quite match all the things that the research council wanted to rate. So, his research work, at least in its planning, was considered to be of national, if not international quality.

Q Does that observation apply to your knowledge across the board of his scientific or research work, from what you know?
A From what I know – I have no knowledge of what you have already been told about Professor Southall’s more recent work. You will know that, as a result of a complaint by a member of the public about the possibility that consent had not been obtained over one or more of the children involved in that trial, there was a Government inquiry into the controlled trial – the application which I had seen earlier from the Medical Research Council. Eventually, the Government came out with a report which found that research… the actual conduct of the research study to have been deeply flawed.

Two days after that happened, I was contacted by solicitors and asked whether I would be prepared to look and see whether there was a defence to the Government’s report, and I said that I would only do so if I worked with a colleague who had even more knowledge of the management of control trials than I do, which is Sir Ian Chalmers – probably one of the leading international authorities on control trials. We further said we were not prepared to offer advice unless we had free access to every single piece of Professor Southall’s and his colleagues’ research papers, and unless they accepted whatever we did and found, we would have clear right to publish what we found in the medical journals and the British Medical Journal, in particular. I think it is to Professor Southall’s credit that he said, “I take you on. I think what I did is sound, and we are happy to ask you to look at the way in which the trial was conducted, and you can publish your findings.”

Q I do not want to go into all this in detail because that is not the main focus of the Committee.
A Absolutely.

Q The Committee has heard the result of the investigation across a range of Professor Southall’s work, as I said before, when evidence was given by Dr Chipping.
A Yes.

Q We can take this shortly – did you carry out that investigation?
A Yes.

Q You and others – what was the result of it, in a sentence or two?
A The result was that we found that the conduct of the trial had been well above the standard of most other MRC and British Heart Foundation funded trails in the United Kingdom at that time. The paper keeping was thorough and meticulous; the delegation down was well thought through; the eventual paper had been handled rigorously and properly statistically assessed.

Q I am going to move on to what I am going to call child advocacy aspects. The Committee will, by now, have come across the use of that expression in the testimonials it has read. Can you help the Committee, from your standpoint, as to any matters of relevance falling under that description, which might have a bearing on the matters it now has to determine. What can you say about that?
A The Royal College of Paediatrics and Child Health has always stressed that one of the duties of a paediatrician is advocacy – advocacy often for children who are voiceless. In my personal and professional view, probably the most significant thing that Professor Southall ever did in his life – much more than the abuse work for which he is known, or notorious – was that he was the first to confront his colleagues with an understanding that, in caring for very ill children, we were often caring for their physical needs, but failing to protect them from a huge amount of pain and distress, particularly when they were sedated, because sedation does not necessarily protects you from pain.

He wrote quite a small article – I consider it an extremely courageous article – which appeared in the British Medical Journal back in 1993, just pointing out how many painful procedures children in the intensive care unit he was working in were being subjected to – how often they went unrecognised, and how often they were not subjected to much pain relief. What is important was that this immediately provoked the College into setting up a working party to address what was obviously a major concern. The College decided to ask Professor Southall to actually chair that working party. They worked for four years and produced a small booklet, which was the first in the world to really review what could safely be done by way of giving opiates and other pain relief – local and regional pain relief – to children. If there is one thing that, single-handedly, I think he initiated, it was probably that he made the profession face the truth about the need for children to be cared for when their pain is being not recognised for what it is, because they are too young to complain.

Q The Committee has, by now, received some evidence in relation to Professor Southall's work overseas. Therefore, can I ask you to proceed on the basis that it has some knowledge of this. From your standpoint, are you able to give the Committee a vignette of Professor Southall’s involvement in these matters, from your own direct knowledge.
A Yes, at two levels – in 1994, when Yugoslavia was in great trouble, the actual Government asked Professor Southall to go out and retrieve some children as being in need of evacuation for proper care. Shortly after that, UNICEF, having seen the work he did, then invited him back to work for a further two years on advising them on the provision of healthcare services in Bosnia. A lot of this work has never been widely publicised, but amongst those who knew of the quiet work that was done, there was deep admiration for the quality and diligence of the work that he did.

After the UNICEF funding came to an end, Child Advocacy International continued to support that work. I know that, certainly through to 2000 or 2001, Professor Southall was still going across there on occasions to support the further development of that work, which was extremely highly regarded by those who knew of it. I believe, although whoever knows, that that may well have been the major reason why he was recommended for the award of the OBE , but nobody will know.

What I do also know is what virtually none of his colleagues know, but which the Trust could confirm, that, unlike a number of his colleagues who have done a lot of legal work, nearly all the money that Professor Southall has ever earned by doing legal work has actually gone straight into that charitable work.

Q Can you say anything about his standing amongst colleagues overseas?
A Yes – you want me to be concise. Let me just say that the world’s leading paediatric journal is an American one. We all go in for rating nowadays – impact factors. The Journal of the American Academy of Paediatrics has far and away the highest impact factor of any journal in the world on child health matters, and Professor Southall has published more papers in that journal than any other existing British paediatrician. In actual fact, more paediatricians in America know of some of his best work, and have him in higher regard, than perhaps is the case in this country.

Just as one example of it – when the NIH in America came to try and sort out what acute life-threatening events might be, he was the only English expert asked across to sit in the panel in, I think, 1968(sic), to try and reach a consensus as to what the definition of this condition is, because they already recognised that he had more scientific experience of the study of this condition than anybody else.

Q Can I move to another topic. The Committee had heard, again from Dr Chipping primarily, that following the raising of complaints back in the late 1990s, Professor Southall was suspended, in effect, for just under two years.
A Yes.

Q Did you know him at that time?
A No, I did not know him initially in that time, and I have never asked how it came that I was asked to review his work, which I was asked to do five months after he had been suspended. I think I had been in the same room as him three or four times in my life up to that point, despite the fact that we were in the same profession. I thought it not right and proper to become at all close to him while I had the job of trying to undertake an individual, independent assessment of that trial. It is true that, after I had finished the report published in the British Medical Journal, and had it unofficially accepted, as we understand, that the Government did accept that that report had been flawed, the next time that Professor Southall did ring me up, I did feel that it was appropriate to become a bit more close and supportive.

Over the last year, I have come to know him really quite well and, in particular, I became aware of just how impossible it is when you are suspended from all work, when you have an indication that you may not contact colleagues and you may not go on the hospital premises. It is lonely; it is very difficult to find moral support, help, guidance; it is even worse for your family. I have been here before with other colleagues, who have also been eventually completely cleared. Where it happens to a family with young children, the impact on the children in the family can be deeply disturbing, and the fact that they are left like pariahs, with everybody averting their gaze and crossing to the other side of the road, and not knowing what to say, it must be an excessively stressful period of time to go through.

Q Despite that, do you have any knowledge of anything that Professor Southall was able to achieve on the general professional front during the time he was suspended?
A Yes, uniquely, he wrote and edited one of the two international textbooks, of 600 pages long, on the provision of emergency child health across the world, which was published by the premier British medical publication firm, British Medical Books. Virtually the whole of that work was done during the period of his suspension, and in my view, and in the view of all the colleagues who helped him write that book, the fact that rather than just worry about his own future, he could still, at that stage, spend an enormous amount of time working for what he considered to be helping and advocating for the rights of children in third world countries, I think spoke to the quality of the man.

MR COONAN: That is all I have to ask you, thank you.

MR TYSON: I have no questions.

Questioned by THE COMMITTEE

MS LANGRIDGE: Good afternoon. Dr Hey, I want to ask about the research report that you reviewed. If I read you the title, would you be able to confirm that this is the research report. We have a report in our bundle, which was published in Paediatric in November 1997, called “Covert Video Recording of Life Threatening Child Abuse – Lessons for Child Protection.” Is that the report that you have actually reviewed?
A No, the report that I reviewed was the report into a controlled trial of giving breathing support for children which was less invasive than the standard method. It was by going back to the old-fashioned iron lung approach, by helping children breath, by helping them expand their lungs with each breath, rather than by blowing air into their tracheas. Just for the record, it has not become the standard approach, but it has actually … it was the right line to take, and it has now, over the last three or four years, become… instead of holding the chest open, we try and keep the lung open by using positive airway pressure through the nostrils, without going invasively through the trachea. Again, it was an example where he opened up an area which has been shown later to have been a gentler, less invasive way of supporting the breathing of pre-term babies.

Q That is the one know about the cuirass(?), is it not?
A That is right.

Q Have you ever been involved in reviewing any of Professor Southall’s other research reports other than the field of child protection?
A I have not looked into child protection work.

Q Is the basis of your evidence you have given today, in research reports you have looked at, and in the earlier ones where you were reviewing the quality of the applications, you have no concerns about the standard of the research that was applied for, or subsequently completed.
A I would not only say I have no reservations – I have no comments on his research into child abuse – but if the rigour with which he did all his other research is anything to go by, then I would have expected to find that it has been done to an extremely thorough, almost obsessional quality – very well done.

THE CHAIRMAN: Dr Hey, my understanding, from what you have said, is that when Professor Southall was suspended by his Trust (and we have been told there were issues relating to patient care but also issues relating to research) you are referring to that investigation by the Trust into the research side of the reason why he was suspended at that time, is that correct?. That is when you were brought in.
A There were, in fact, a series of investigations into his research work. I was only involved in evaluating those. There was a first, quick evaluation of his research, which was later shown to have been flawed, which was done for the Trust. There was the Government inquiry which, ostensibly, looked at all research in the north Staffordshire hospital, but was clearly acknowledged to have been motivated by concern expressed to various members of Parliament, about the C NEP trial, which I have just been talking about. The Trust then undertook its own, detailed two year research of this, and also undertook two separate audits to check that, in actual fact, the consent documents all were in place. There was a police investigation, and you will be aware that the General Medical Council has also looked at complaints about that research twice, and they all ended up finding no grounds for taking further action, which goes along with the judgment that Sir Ian Chalmers and I made after our first four month investigation between April and August 2000. It was only after my involvement in doing that evaluation for them, I became personally acquainted with Professor Southall and his family.

THE CHAIRMAN: Thank you. There are no further questions. Do you have anything further, Mr Coonan?

MR COONAN: No, thank you sir.

THE CHAIRMAN: Thank you very much.

(The witness withdrew)

MR COONAN: May I call Dr Chipping.

PATRICIA MARGARET CHIPPING, Sworn

Examined by MR COONAN

Q Dr Chipping, you have given evidence before the Committee at an earlier stage of the proceedings. The Committee will appreciate that, at an early stage in the developing facts and events in the case, you were, at one time, Acting Medical Director of the Trust, and then became Medical Director. Can you remind the Committee, please, when your full-time appointment as Medical Director was made?
A I took up my appointment as full-time Medical Director in June 2001.

Q You gave evidence earlier about the reasons for Professor Southall’s suspension.
A Yes.

Q You gave evidence about the causes of the investigations which have been carried out under the auspices of the Trust.
A Yes.

Q You have described how that fell into three categories – research, personal conduct and child protection – is that right?
A That is correct.

Q On each of those three areas, following intensive investigation, Professor Southall was exonerated.
A That is correct.

Q You are aware, since you gave evidence, of the findings of this Committee.
A Of course, yes.

Q I want to ask you about Professor Southall since his return to work in the latter part – I think it was August – 2001.
A October 2001.

Q When the suspension was lifted.
A When the suspension was lifted. You will understand, from some of the discussion we have heard this afternoon, that there was a period of coming to terms with the effects of the suspension, and an opportunity to pick up the reins of general paediatrics. We actually arranged an attachment at another trust to enable Professor Southall to regain his clinical confidence. He has returned to work very specifically in the areas of general paediatrics, with his particular interest in respiratory medicine. He has not been undertaking child protection since that time.

Q You mentioned him going under the auspices of another trust. Do I take it, therefore, that he has come back to your Trust at some stage during the previous nearly three years now?
A Yes, he returned to work in our Trust, I think it would be February 2002.

Q The Committee may be interested to learn a number of things. First of all, in your judgment and, as far as you know, the judgment of other senior colleagues, how has he performed in the field of general paediatrics?
A All of the indications that I have (and this is confirmed by discussion with colleagues throughout the child health directorate) is that his opinion is highly valued. He is an extremely competent general paediatrician, and that has been brought home to me repeatedly. I should also add that not only has he taken up those reins, but he had done so with enthusiasm and with extreme hard work, and taken on some additional responsibilities for a colleague who is on long-term sick leave.

Q To what extent is the general paediatric service in your Trust being delivered now?
A We have a limited number of consultants who do the general paediatric work. The way that it is organised is that the general paediatricians act as consultant of the week, which is caring for all of the children on the acute paediatric wards, for that week, although the night time on call is done on a separate general paediatric rota. We have about eight paediatricians on that rota. We are actually one down at the moment because of maternity leave, and the individual leaving the Trust, so the rota is perhaps a little more onerous than I would like it to be, at the moment.

Q You said that he had not carried out any child protection work.
A No.

Q You spoke last time about the category 1 and category 2 types of work.
A Yes.

Q Let us look at that a little more closely. During the time he has gone back to work, have you had any complaints about his conduct from anybody?
A No.

Q So far the category 1 work is concerned – I put this as a general question – during work as a general paediatrician, it might arise that a child appears with bruising or with a fracture and so on, which might raise a question of non-accidental injury.
A Yes, indeed – I think that is almost inevitable in paediatric practice.

Q Do you have any arrangement within the Trust to deal with that issue, first of all, generally and, secondly, more particularly, so far as Professor Southall’s involvement in child protection issues is concerned?
A Yes. Generally, we run four on-call rotas for paediatrics. Paediatric intensive care and neonatal intensive care are self-explanatory. General paediatrics is virtually everything else. Child protection is a rota that runs with a separate set of doctors, most of whom have a community pediatrician background, and have specific training in child protection. That rota runs alongside, and provides a twenty-four hour a day, seven day a week, three hundred and sixty-five days a year, separate paediatric cover for child protection. That of course covers the whole of the Trust, because you will appreciate that a child might present just as easily through accident and emergency, as it might to a paediatrician on the ward, so that rota is a Trust-wide rota.

Q So far as Professor Southall is concerned, has that structure effectively prevented him from doing what may be called, generically, child protection work?
A Yes. What has happened is that if Professor Southall has concerns that this might be a child who has been abused, he is clearly instructed to contact the Trust child protection doctor on call at that time. I have in fact spoken just yesterday with the Trust’s child protection doctor, who happens, also, to be the head of division for women and children, which is just slightly above the clinical director. This individual confirmed that there is a very robust system at work, and that appropriate referrals have been received. She is confident, as I am, that this system has worked robustly.

Q Are there any breaches by Professor Southall?
A No.

Q I think you may have heard some observations this morning by Mr Tyson about sanctions.
A Yes.

Q I want to take you, please, to this question of Professor Southall and the imposition of conditions on practice.
A Yes.

Q I am not going to ask you to usurp the jurisdiction of the Committee, but what I am going to ask you is whether or not, subject to appropriate wording, a system of the imposition of conditions, from the view of the Trust, with you wearing the Trust hat for these purposes, is workable and capable of being policed.
A We have, effectively, had the system in place for two years. I am confident that it has worked and, therefore, I believe the Trust could reassure the Committee that it could work.

Q I go so far as to ask you this, and answer, if you are able, wearing the Trust hat: would you like to see that work?
A Yes.

MR COONAN: Thank you.

Cross-examined by MR TYSON

Q Just dealing with some of those last answers, the assurances that you seek to give the Committee would of course only apply to category 1, would it not? You could not control, or police, any category 2 work coming from outside, as it were – private work to the doctor.
A That would be more difficult. It would of course be possible to insist that no such work was taken on and, certainly, to my knowledge, at the present time, no new work has been taken on in the last two and a half years since Professor Southall has been back at work.

Q But as his employer, surely, you could only insist it was not taken on during Trust time. What he did out of Trust time, in terms of private work and medical reports, you could not control.
A It is obviously more difficult – there is no doubt about that. On the other hand, I believe that the Trust now has a very robust working arrangement with Professor Southall, and if a requirement of the Committee was that, in some way, that was a condition of any form of limitation on practice, then, as Medical Director of the Trust, I would wish to work with the General Medical Council to ensure that that was happening. The reason that I would be so keen to do that is because I do not wish to lose Professor Southall’s very considerable contribution to general paediatric work within the Trust.

Q I understand that, and I also recall the evidence you gave in relation to previous matters. Lastly, one of the character witnesses, whose letter was read out to us earlier, was Professor Anderson, and I think you were in the room before lunch when that was read.
A Yes.

Q He included in his letter, this comment, which we have on our page 7, in the last paragraph, where he was describing the personality of the doctor, and perhaps you would like to look at this. The last paragraph begins with these lines:

“All of this previous experience shows that David is unprepared to view things as a spectator if he considers that certain aspects have failed to receive the attention that they deserve.”

That is the nature of the beast, is it not, Dr Chipping?
A It is a very interesting point. I think that one has to agree with Professor Anderson. The extraordinary thing is that that appears to be the nature of the beast when one looks particularly at child protection work. It is not really when one comes to look at general paediatrics. In fact, Professor Southall’s determination to arrive at an appropriate diagnosis appears, when he tackles general paediatric work, to result in very thorough, well thought through and detailed diagnostic work. In one sense, it is the nature of the beast, but it could also be, and would appear in his general work, as far as I am able to comment, bearing in mind I am not a paediatrician, to be a strength rather than a weakness.

Q The fear which I have to put to you is that if Professor Southall feels strongly about anything, he will go and do it. That is his past and, in many ways, one of his strengths, which has been commented upon.
A It is – I have to say that it is a strength or a weakness which, as a Trust, we have addressed with Professor Southall. I have always recognised (and I recognised at the time that suspension was lifted) that if Professor Southall was going to return successfully to practice within the National Health Service, within the Trust, it was an issue we had to address, and we have done so both together and with external assistance. I believe that… I am not saying leopards change their spots, but I do think there is some learned behaviour that actually has occurred, and I have been most impressed by the diligence and the care by which Professor Southall has taken his rehabilitation into the Trust. It is clear to me that however painful it would be (and it would be) for Professor Southall’s registration to be restricted so that he was not able to undertake child protection work, I believe that he does understand that if he were to, in any way, breach a condition that was placed on him by this Committee, that I will be the first person that reported him back to the General Medical Council.

Q Can we agree this far: there must be a risk, bearing in mind his forceful nature and personality, that some bureaucratic restraint would be ignored if he felt strongly that the ultimate object was more important.
A Yes, it is a risk. Do I think it is a significant risk – no I do not, and the reason I do not think it is a significant risk is because we have successfully worked with this system for the last two and a half years to, I believe, the considerable benefit of the children of North Staffordshire and beyond.

Q You say you can restrict, as it were, his clinical work, whilst he is an employee, to general paediatrics, do you have any control over the nature or extent of his research work?
A I do not, but Professor Southall is not currently undertaking any research and, indeed, his contract, or his funding stream at Keele, has changed, such that he is supported by postgraduate education monies not research monies.

Q But you would have no control over that aspect – it is a Keele University matter, as it were.
A Yes and no – except that we work in extreme collaboration with the University of Keele in research matters, and I would be confident that if there was research where there was the slightest concern, the research governance structures that are now in place in North Staffordshire are probably one of the most rigorous in the country.

MR TYSON: Thank you very much. I have no further questions.

Questioned by THE COMMITTEE

MS LANGRIDGE: Dr Chipping, I do not think you have seen this bundle, but we have some 142 pages of references.
A Yes.

Q And testimonials from a wide variety of paediatricians and other doctors.
A Yes.

Q One of the themes that runs through some of the correspondence is that if Professor Southall were to cease doing child protection work, it would be a blow to other paediatricians, in a situation where, already, there are very few doctors who are willing to take up child protection. This would act as a disincentive to the profession, and I wondered if you would comment, because it is by no means clear to me, (although it is for the Committee to make the decision, and I understand that) exactly what you are saying. Are you saying that, in your opinion, Professor Southall should not do child protection work?
A I think the … it is not up to me of course to do this Committee’s work for it, but in discussion with Mr Coonan, and I have heard the discussion today about the potential sanctions, I do think that the General Medical Council – the Committee here – is in an extremely difficult situation. It is clear to me that there was … that the matters on which you found are very serious, and the argument, as I understood it from Mr Tyson this morning, was that it would not be possible for the Committee to reach a judgment which, if you like, was of restricting practice. What I am saying is, if that were the outcome of the Committee (and, as I say, I have my personal views but it would be inappropriate to express them), I believe that, as a Trust, we could make that work.

Q Does it therefore follow that if no restrictions are placed on Professor Southall’s practice, in terms of the type of work that he could do, you could also make that work?
A If he were to return to practice… I am not actually sure there would be very much difference if he were to return to unrestricted practice, because … the effect of the question that has been asked about counsel instructing, I think probably the chances of Professor Southall doing a lot of category 2 work in respect of child protection is vanishingly small. In terms of work within the Trust, I would probably wish, as the Medical Director of the Trust, to retain the present working practice we have anyway.

THE CHAIRMAN: The present arrangement that you described to us is where Professor Southall works in general paediatrics, and does not involve himself in child abuse type work – child protection work – and also does not ITU work.
A Let me just clarify – the not doing ITU work was by mutual agreement because, I think you will appreciate, paediatric intensive care unit work is extremely onerous. There was nothing at all about my lack of confidence in Professor Southall that would have restricted his access to PICU work. It was by mutual agreement.

Q The other side of it – was that by mutual agreement, or was that because of conditions imposed by the Trust?
A That was because of conditions imposed by the Trust because I believe, as the Trust Medical Director, that although the report that was described to you earlier found no matters of substance with regard to the Professor’s child protection work, it was very clear to me that there were a number of inquires ongoing with the General Medical Council. I did not believe it would be appropriate for Professor Southall to return to child protection practice whilst those were ongoing. In terms of the rest of the work that was done, we worked together to decide on exactly how we would manage the return to work process and, from the Trust’s perspective, it has worked very well indeed.

Q In terms of getting this working arrangement with Professor Southall, was that an easy thing to do or difficult?
A It was very straightforward. I suppose one of the… I have to say that I think Professor Southall and I have developed a close understanding, shall we say, and a mutual respect, actually. He has recognised that maybe a trust medical director is somebody of wisdom, and I do regard my role as Trust Medical Director to protect doctors from themselves. Professor Southall is not the first person I have done that for. It is important, and I suppose the Committee might have some concern, therefore, would any sort of arrangement that was put in place work if I was not the Trust Medical Director, and I think that is something you would have to think through. I am not planning to step down immediately. It was not a difficult thing to put in place. Professor Southall understands my concerns, and I think has also been advised by his legal team that this is an appropriate way to move forward. It certainly was the case on return from suspension. There was no difficulty in getting this arrangement into place, and I have to say that Professor Southall had been most careful to keep me informed if there were any matters of concern as regards child protection whatsoever.

Q One of the things that Mr Tyson has emphasised this morning (and you have probably heard it) is that one of Professor Southall’s problems appears to be his lack of insight, and lack of insight perhaps in relation to this particular area. Based on the fact that you have had this ongoing working relationship with him while things have changed, do you have any comment about his insight? Do you feel he has more insight now into this side of his work than he had previously, or would you subscribe to the fact that he does not have any insight?
A No, I would not subscribe to the fact that he does not have any insight. I think he has good insight, but I think he is a man who does not change his mind easily, and I think that is a slightly different thing. One of the things that I am sure will have come out in the testimonials is that Professor Southall is actually a man of great principle. He will not change his mind if he does not think his mind should be changed. Does he have an insight into the impact he has on others – I think he probably has a better insight than he did earlier in his career, yes.

Q Lastly, if there was a system of conditions in place, even though it could be argued that you could not police things that were happening outside his NHS working hours, presumably, issues like this would be likely to come to your attention.
A I would have thought they would be the first thing to come to my attention, yes.

Q Either through the local processes or by other means.
A They would certainly come to my attention through local processes, because I actually hold the child protection lead as the Director, with responsibility to child protection for the Trust so, in that respect, they would come to me officially. I actually have that lead director role, so that any communication through the chief executive with regard to child protection matters comes to me anyway. What would not necessarily come to my attention was if the request was from a remote area… remote from North Staffordshire. In other words, if Professor Southall were engaged in a child protection case in a different area, that would not come to my attention unless it was made very specific that should such a approach be made, it would have to be reported to me. I have no doubt that if that were a condition, then it would be reported to me. I am also aware that when we stopped Professor Southall from taking on new child protection cases before he was suspended, he did bring to my attention those cases where he was involved. Therefore, I do not have a difficulty in believing that that would happen. I believe it would and could happen.

Q Presumably, a global restriction on being involved in child protection would cover all aspects of it, be they category 1, category 2, or any other category people could think of.
A Absolutely – if that was what the Committee decided, indeed, it would have to apply right across the board, if that is what the Committee felt should happen, yes.

Q It is clear we have not made any judgment; I am just trying to explore the facility of any possible findings we might make, and you clearly have expertise in this area.
A I appreciate that, but it would have to cover NHS and all medico-legal work, yes.

THE CHAIRMAN: I have no other questions.

Further cross-examined by MR TYSON

Q You indicated that one of the reasons why conditions may be able to work is because of the relationship that has developed between you and Professor Southall.
A Yes.

Q Of course no condition can be made, can it, that he should continue working for his current Trust? He could resign and move to any other trust at any other time.
A He could – he would not be able do so without a reference from his present employer, and a reference from his present employer would need to make very clear the condition that was imposed not by the Trust, but by the General Medical Council.

MR TYSON: Thank you.

Re-examined by MR COONAN

Q Dr Chipping, arising out of the discussion, and focusing on the question of policing, there may be policing by the Trust itself; there may be policing by, as you put it, local processes. To what extent, to your knowledge, is the vigilant group, as it were, still out there monitoring or policing Professor Southall?
A They are out there. There is still a very active lobby of opinion around Professor Southall, and the Trust is regularly contacted by that group.

Q Still focusing on the underlying proposition, the Committee of course is primarily concerned with protecting patients.
A Yes.

Q I want you to focus on that need for the moment, and also the point that you have raised about protecting Professor Southall from himself. Can you take those two points together.
A Yes.

Q To what extent, in your opinion – again not trespassing on the Committee’s function – is any proposal for the imposition of conditions going to satisfy those twin principles?
A As we have explored, the complaints around Professor Southall have centered on his research, which he is not currently undertaking, and child protection work, which is the business of this Committee now. In terms of protecting in the event of child protection work, then I believe this can be made to work. I believe we would have Professor Southall’s co-operation, and we would work closely in line with whatever the General Medical Council imposed, to make sure that we could police this. Would it protect Professor Southall from himself – sadly, I have to say, yes, I think it would, because I think it is in the area of child protection where Professor Southall has a particularly passionate belief based, quite understandably, on some of the work that he has seen. I can understand why he is so passionate about the issue of child protection, but I do have to say I believe that the imposition of this particular sanction will be extremely painful for Professor Southall – I do know that. Equally, it would have support from me, as Medical Director of the Trust, and I hope I have already made that clear.

MR COONAN: Thank you very much.

THE CHAIRMAN: Dr Chipping, thank you for coming a second time to help us in our deliberations.

(The witness withdrew)

MR COONAN: Sir, that is all the evidence I am calling. Could I then move to observations and submissions to assist you. I am very conscious, particularly as Ms Langridge observed, that there are 140-odd pages of testimonials that you have had to absorb. Since this is a hearing which is not only in public, but attracting a great deal of public attention, it is right, in Professor Southall’s interest, and in the general public interest, that, in public, it is mentioned a number of the features of those testimonials. I do this simply to draw together, I hope helpfully, a number of these facets which I know you have had to absorb in a short time.

We submit that the body of this material really amounts to a general accolade for Professor Southall, but also provides a key to understanding the predicament in which he finds himself – a key to understanding, really, the underlying problem which you have identified in your findings.

The nursing and medical colleagues, in effect, join together to provide this corpus of material and what emerges (and really, in a sense, echoes what Dr Chipping has been saying) is a person of great personal integrity, who is a committed, gifted and, indeed, dedicated paediatrician in whatever area one is looking at. He has been an inspiration to his colleagues, and has an outstanding reputation amongst his peers in this field. He is highly respected, and greatly admired, in the field of paediatrics and child health. It is a broad and very important field. Indeed, one could just simply perhaps, as an aside, remind you of what happened only in April of this year, when he received a standing ovation at the spring meeting of the College in York.

He has highly regarded clinical skills and, in all respects, again echoing Dr Chipping not a few minutes ago, is an excellent general paediatrician. He is caring, compassionate, and behaves as such both to children and importantly to their parents.

The influence of his work has been felt worldwide. The work he has done on the international stage… I am now referring to the Child Advocacy International charity, which he set up. He founded that, in effect, to provide emergency medical care to children in eastern Europe, the Far East and Africa. It is quite clear that he has behaved courageously and put his own life at risk in carrying out that mission when he was attempting to protect vulnerable children. As you know, he received, it would appear, an honour for that outstanding work. It is not an exaggeration to submit that he must have saved the lives of many children, both in this country and overseas.

He has made an exceptional contribution in his field and, we submit, is able to do so in the future. There are some 200 publications in peer review journals over 25 years.

That is really, in summary form, a picture of this man on the professional front, if I can put it that way, but it is perhaps the personal attributes which provide the key and help to understand why Dr Chipping came with the message she did. At the same time, they may be, I suggest (and Professor Southall, as my client, may not be happy to hear me say this, but I am going to say it anyway) his Achilles heel. He has viewed the interests of the child, whoever it may be, as paramount. He is a man of deep conviction in that respect. He is passionate – you will notice a word that Dr Chipping used not five minutes ago, and it is a word that others have used in these testimonials – about the needs, safety and welfare of children, and that has, in effect, turned him into – I say this simply as a matter of fact – an advocate for children – again, a word which is used time and time again in those testimonials.

So, a combination of being passionate and an advocate for children, coupled with the last paragraph in Professor Anderson’s testimonial, to which Mr Tyson drew attention only half an hour ago, begin to provide, in our submission, the answer for what has happened.

Not only that, but he is a campaigner, as the material shows, against child poverty, and against the predicament and plight of refugee children, and to those who suffered injuries due to landmines. He is a self-sacrificing individual, altruistic and not motivated by money or by position.

At page 73 of the bundle of testimonials, you will see the author of that letter saying, amongst other things, that this man is not an ordinary doctor. We respectfully commend that description to you.

Indeed, when it was written that he is unprepared to view things as a spectator if the matters have not received the attention they deserve, that has been no doubt the case, and no doubt was the case, we submit, when these events unfolded.

You will also, perhaps, bear in mind the likely effect of the remorseless pursuit on him, and attacks upon him in his work in child protection and in research. One might imagine the reaction to that in somebody so passionate is, therefore, to strive even more to carry out what he perceives to be the predicament of vulnerable children, which may, on occasion, lead to an overview of events.

Those matters have occurred at enormous personal cost to him, and it is, we say, a tribute to his ability to settle down, regroup and rehabilitate – Dr Chipping’s word not mine – following his return to work in 2001, after having been suspended for nigh on two years, cut off from his work.

That is all I am going to say about the testimonials. You have read them, and I hope I have drawn together a number of those strands, but perhaps return, in a few minutes, to the, as I call it, “Achilles heel” point.

The first submission I would like to make is this, and it can be dealt with shortly: the question of serious professional misconduct is, pre-eminently, a matter for the Committee. What Professor Southall did in relation to this report had been described by Dr Chipping and, indeed, I think in Sir Alan Craft’s testimonial, as serious, and that may be the view of the Committee. I have no specific submissions to make on that issue.

I do have some submissions and observations to make about some aspects of the facts which surround what he did, which of course have equal relevance to your determination as to whether or not what he did amounted to serious professional misconduct but, equally, have a direct relevance to the question of sanctions. Rather than artificially split the two up, it may be helpful if I just went straight ahead and dealt with the individual observations that I have to make. It is for you to, as it were, aside them into whichever context you wish.

The first, overarching submission I am going to make, and face squarely because of the submissions you have heard from Mr Tyson, is that the imposition of a sanction of erasure or suspension would be wholly disproportionate to the underlying facts as enshrined in your findings. I make that submission for a number of, we say, important reasons. The first is, one has to look, with respect, at the context in which Professor Southall made this error of judgment, whether it is described as serious or not, enshrined essentially in head 8. Head 6 is really, if I may say so, without in any way intending to reduce it to a mere nothing, a matter of foothills rather than mountains.

It is a case, when one distills it to a case, where he has pressed his concerns about Child A more vigorously, more emphatically and without qualification and thus made, in the words of you, sir, a quantum leap than was justified. That, in effect, is what this case amounts to.

As against that, and when one considers the context in which the events unfolded, one cannot ignore that Professor Southall, as a matter of fact, did have very strong concerns about Child A, however they arose. Remember, again, the passion and the advocacy point that I have already drawn to your attention this afternoon. I would invite the Committee to proceed on the basis that he was motivated solely by that – solely by concerns in relation to Child A who, it may be said, suffered no harm.

The next important matter, which goes to the question of proportionality, is the fact that, once again, we invite the Committee to proceed on the basis that he was acting in good faith – in other words, that he was not dishonest. That would otherwise have a very significant bearing on the question of appropriate sanction. The Committee rightly, in other cases, treats as very serious indeed the question of rank dishonesty on the part of a medical practitioner.

The finding in relation to head 7e is not to be viewed (and we understand it to be so) on the basis of a dishonest assertion by Professor Southall – rather that it was on the basis that it was impermissible and insufficient to assert knowledge of facts on the basis of a television programme, or on the basis of hearsay, namely, that which Professors Green and Meadow told him.

Moreover, on the question of dishonesty, and the issue of the certification at the end of the report, although it may not be justified to adopt the words of Mr Tyson, the plain fact is that Professor Southall believed honestly that the facts that he had gleaned from the television programme, and from the third parities, Professors Green and Meadow, were true. He believed his opinion to be true. This is not a man, if I can really reduce it to its bare essentials, who was pedalling snake oil.

He did speak to Professor Green and Professor Meadow about this – it is not suggested otherwise. If it had been suggested otherwise, then it may be that Professor Green and Professor Meadow would have been here, but it is not suggested otherwise. Indeed, you know from the evidence of the police officer, Mr Gardner, that Professor Southall told him, Mr Gardner, that he had spoken to those two experts.

We would ask you as well, in considering the context and way in which these facts emerged, what was the likely impact of him being suspended. He had been suspended in August or the latter part of 1999. He was then, in effect, professionally isolated, and it may be possible to view what he did – this is in no way to go behind the findings that you have made – as being born out of the fact that he felt professionally isolated, and that he was acting in a headstrong manner when he approached the first police officer, Mr Gibson. Indeed, that again is consistent with the finding that you made that it was precipitate.

Now you know more about this man. You know, from these documents, how it might be, and explained by me, that he made that first contact, arising out of his passion and the sense of advocacy when he sees matters of concern in that way.

You will also recall the evidence which Professor Southall gave – if necessary, if you need to refer to it, the reference is day 5, page 10 – that when it came to the writing of the report, he was concerned about the delay that had arisen and frustration. You will remember that the television programme was on 28 April. He only got to an appointment with Mr Gardner on 2 June. He only received the letter – I stress the word “received” – from social services on 14 July. One derives that not only from Professor Southall’s evidence, but also from a perusal of pages 23 and 24 of C1. You will remember that the letter was sent to the hospital, where he did not have access to it, and he obtained possession of it later. Of course he was concerned, given his concerns about the child, that there were delays, and it was finally capped by the fact that he ended up not having access to the documentation underlying the case as a whole.

These were, in some respects, unique circumstances. There was not in fact a doctor/patient relationship. I do not submit that, therefore, the Committee should not treat this in the way in which it deserves on its merits, but it is a factor that there was not here, strictly, a doctor/patient relationship. He was not the expert who was instructed to give evidence. He was in a limbo situation – a strange situation to be in – and somebody who was not given access to the documents and somebody who was, once again, if I may use the expression, fired up by his concerns which had arisen by the information he had received from the television programme, coupled with the information he had received from the two professors.

There is, perhaps, a fine line but, nonetheless, a line of some significance, to be drawn between what actually happened and what would have been the situation if the matter had been handled differently. It is a significant line, as I say, but it is worth bearing in mind, if only – that is an expression which I think may be an important one – Professor Southall had not been so passionate, and had used words such as “high index of suspicion” or “real possibility” or “fear”, then we would not be here, and Professor David made that clear. So, one can see that it boils down to an extravagant expression of an analysis which had some basis – I choose my words very carefully – in fact and opinion.

All those actions, and the failure by Professor Southall, in the light of your findings, to couch it in more reserved terms, as I say, in our submission, are explicable by those personal attributes that I have highlighted. The only evidence that you have that those attributes have, in effect, got him into trouble is in this one case, and this one area of child protection.

I move on to the next main submission on disproportionality, and that is that it would be right to treat this as one incident – despite my learned friend’s submission this morning – over thirty years, now thirty-three years, of an unblemished career. The fact that he has attracted complaints from here and there does not damage or dull that career at all. He is, as Mr Tyson rightly said, a man of good character. That is as regards the wider world, and also as regards the General Medical Council.

There have been no breaches of his professional arrangements – his employment – at all since. It is somewhat artificial to describe this as more than one incident. He came to a view – as you have heard today, he does not change his views easily – and, in effect, ran with it. It was in respect of one particular individual at one particular time. I have taken a moment or two to emphasise that because, as your learned Legal Assessor will appreciate, that is a very important proposition when it comes to considering the appropriate sanction to impose on a practitioner.

May I move to another matter. It is perhaps, you may think, of some importance, when considering an appropriate sanction, to view the climate of the year 2000 as against the climate of 2004. This Committee will, I know, be beware of any perceived public demand for blame or punishment of paediatricians in general, (and it would be idle to pretend that there is not) to be laid at this practitioner’s door. He cannot, and should not, be used as a lightning conductor for the perceived or alleged failings of others in this field. He is to be judged solely on the basis of what he did, and to be judged in the context of 2000, and not in relation to – if I can put it this way with a very small “p” – forgive me and understand the way in which I use it – the general politics of today.

Sir, the protection of the public will loom very, very large in your thinking, and it is right and proper that the protection of the public should be paramount so far as your considerations are concerned, but the contemplation of erasure or suspension is not the only method of providing protection for the public, nor is the important consideration of maintaining confidence in the profession. Erasure or suspension are not the only means of achieving that. I draw attention, just simply to mention it, to the observations of Professor Craft and Professor Sir David Hall, which you read this morning.

There is a proportionate response, provided you take the view that a reprimand is inappropriate, and I want to focus the balance of my submissions on the question of the imposition of conditions. The proposition that the imposition of conditions is proportionate of course encloses the one area of criticism that has arisen before you. It has the effect – that is the imposition of conditions – of corralling the concerns and risks engendered by Professor Southall’s passion and advocacy for children – it ring fences it.

It also reflects the position that has been in situ for the past number of years ever since he returned to work. One has a de facto situation. He has done no child protection work, whether it is category 1 or 2, since 2001. He has done general paediatrics only. There have been no criticisms, no concerns and no complaints about his work as a general paediatrician. He has the support of his colleagues in the Trust – you have seen the whole section in the testimonials devoted to them – and he has the support of the Trust, as you have heard most recently. The mischief the Committee has identified can be met and neutralised in the interests of patients.

There is no evidence that he is not a skilled, safe, reliable, committed general paediatrician, and there is no evidence that his personality has got in the way of safe delivery of that service.

The imposition of conditions, in our submission, is in the public interest. It is workable and measurable, for the reasons that Dr Chipping has outlined. It can meet the areas of work, either in category 1 or in category 2 – in category 1 because the Trust can police it directly; in category 2 because, on a number of fronts, if it did happen, there are others out there who will make it their business to report him. If Dr Chipping got to know, she would be the first to report him. However, let us be blunt, hinted at ever so gently by Dr Chipping – as a matter of practical possibility, it must be highly unlikely, if not impossible, that any agency would in fact engage him in category 2 work. That is a fact, painful though it may be to him, that I have to say on his behalf. The agencies of course who might be involved in that are perhaps two, three or four – individual solicitors, social services or the police.

Category 2, from a practical point of view, in our submission, is not a risk. Category 1 is not a risk and, in any event, should Professor Southall leave the Trust again, practically speaking, the matter would be communicated to any new employer, as you heard Dr Chipping say.

It is not necessary, if one looks at the little checklist in your indicative sanctions document, to postulate that retraining is necessary before you can impose conditions. It would be a mistake to read it like that. We do not submit that this is a case which requires retraining. It may be a case, in your judgment, which requires reassessment, and although the power that you have in the first instance is limited to a three year period, that can be catered for in an employment context, in relation to category 1, without, I would have thought, much trouble at all, and certainly in relation to category 2, for the reasons I have already indicated. There is not going to be some magical watershed at the end of three years, which will mean that the local Crown Prosecution Service will therefore be sending instructions to Professor Southall . I am sorry to be cruel, but there it is – it is unlikely to happen. Therefore, the fact that it is, in the main, of three years’ duration should not be treated as in any way fatal, or undermining, what, in our submission, is a sensible, balanced and safe proposal to this Committee to deal with the problem which has arisen in the course of this case.

It is of importance that Dr Chipping, on behalf of the Trust, would wish it, leaving of course the decision, as it must be, to you, but it is important that she expresses that. She is – you have seen her twice now – an impressive witness, you may think, somebody who does have good judgment and wisdom, and the ability to ensure that when Professor Southall gives her, as the Medical Director, an undertaking, he is going to keep it. It would not of course, by definition, simply be an undertaking because, again, by definition, it would be a condition imposed by law, by this Committee, which has arguably even more teeth than any conditions or undertakings which Professor Southall may give to his employers.

Sir, those, in effect, are the submissions that I make on his behalf. I do not, unless you call upon me or, indeed, for that matter, Mr Tyson, venture to suggest a precise wording. I do not wish to be seen as presumptuous, nor do I wish to, as it were, second guess any thoughts that you may have about this. I refrain from doing that at this stage, but I do accept that if the Committee was contemplating the imposition of conditions, which we say is appropriate, that it must, by definition, cover both NHS and non-NHS work. That much must be accepted. Those are the submissions that I make.

THE CHAIRMAN: Thank you, Mr Coonan. We will take a fifteen-minute break, and then we will come back with the advice from the Legal Assessor before we retire to consider our findings.

(The Committee adjourned for a short time)

THE CHAIRMAN: I will ask the Legal Assessor for his advice.

THE LEGAL ASSESSOR: Chairman, I think there is no need for any elaborate advice, but I will touch upon one or two matters which I think, to me, are of importance. I would like to thank Counsel in the way they have dealt with this case between themselves, because I think that has made things run much more smoothly than might otherwise have been the case, so I do give them my thanks.

One matter raised by the defence was whether this was a single incident, or whether it is a series of events with a common theme. I advise you to consider that with considerable care, because there is authority to the effect that a single incident, in a long and otherwise blemish-free career, will rarely be serious professional misconduct. The Committee is aware of course that the prosecution and defence differ widely on whether this is a single incident or not, and I advise the Committee, as I say, to consider this carefully.

The fact that the events took place over a period of months does not prevent it being a single incident, but that may be a factor to be taken into account, and the Committee can look at the various events which occurred.

The Committee must then consider, if it finds there are issues of serious professional misconduct, the various escalating series of sanctions set out in regulation 30, and it again, by considering those at the lowest end – that is no action – in effect a reprimand – considers the various steps until it reaches the point where it can make a decision that is appropriate.

Mr Tyson helpfully took the Committee through those various steps in relation to the indicative sanctions document and Good Medical Practice, and that is of course one of the approaches that the Committee can, and should, adopt.

Mr Coonan, on behalf of the professor, rightly referred several times to the issue of proportionality. That is a very much an important issue in various areas of the law now, and certainly in this area – the sanction must be proportionate to that which has been found to have occurred.

I will just remind the Committee – I think it is probably unnecessary to do so, but I will do so – that the indicative sanctions is only a guide. It is not binding upon the Committee, but it is a guide as to how it should consider these matters, and it can approach the matter always taking them into account, not in the sense that they are binding and, therefore, indicate that a certain decision is inevitable.

The only other matter which I think I should repeat – this is the third time I have said this – is that this case has attracted a great deal of attention, as we all know. It has been very difficult, I know, to avoid seeing references in the press and the media, but of course I will say it again so it is on the record. The decision must be made on the basis of what has been said and read in this room, without any reference to those external sources of information. Although I know the Committee does its very best to avoid those, it is extremely difficult, I think we have all found, in the last few weeks.

THE CHAIRMAN: Does either Counsel wish to comment?

MR TYSON: I have no comment, thank you.

MR COONAN: No, thank you.

THE CHAIRMAN: I think we are at the point where the Committee will retire in order to reach its conclusions, and strangers will withdraw.

STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE COMMITTEE DELIBERATED IN CAMERA