GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)
Friday 24 November 2006
44 Hallam Street, London, W1W 6JJ
Chairman: Dr Jacqueline Mitton
Panel Members:
Mrs Leora Lloyd
Mr Alexander McFarlane
Dr Sameer Sarkar
Mr Arnold Simanowitz
Legal Assessor: Mr Robin Hay
CASE OF:
SOUTHALL, David Patrick
(DAY TEN)
MR RICHARD TYSON of counsel, instructed by Messrs Field Fisher Waterhouse, solicitors, appeared on behalf of the Complainants.
MR KIERAN COONAN QC and MR JOHN JOLLIFE of counsel, instructed by Messrs Hempsons, solicitors, appeared on behalf of Dr Southall, who was present.
(Transcript of the shorthand notes of T. A. Reed & Co.
Tel No: 01992 465900)
I N D E X
Page No
DECISION ON SUBMISSION (Rule 27(1)(e)(i)) 1
DAVID PATRICK SOUTHALL, Sworn
Examined by MR COONAN 4
STRANGERS HAVING BEEN READMITTED
THE CHAIRMAN: Good morning. I am now going to read the Panel’s determination on the submission made by Mr Coonan.
DECISION
THE CHAIRMAN: Mr Coonan: The Panel has considered your submission made under the provisions of rule 27(1)(e)(i) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct (Procedure) Rules Order of Council 1988 in relation to Head 17, in so far as it concerns Mrs D.
Rule 27 (1)(e)(i) allows the practitioner to submit:
“in respect of any or all of the facts alleged and not admitted in the charge ….. that no sufficient evidence has been adduced upon which the [Panel] could find those facts proved”.
Mr Tyson does not oppose your submission in regard to head 17©, although he does not concede that the allegation cannot be sustained
The Panel has taken into account the submissions made by you as well as those made by Mr Tyson.
The Panel has noted and accepted the advice given by the Legal Assessor in its entirety. In particular, the Panel notes that it should approach this rule 27 submission on the basis of the test set out in the Court of Appeal case of R v Galbraith 73 Criminal Appeal Reports 124 and that its concern is solely with the sufficiency of the evidence. Further, it accepts that the question of prejudice that the doctor may suffer by reason of the passage of time since the alleged incident is not germane to that issue.
In its deliberations, the Panel had recourse to the guidance in Galbraith. In particular, it has noted the passage:
“Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury”.
It has also had regard to the judgement in the case of R v Shippey 1998, Criminal Law Review 767.
The test to be applied at this stage of the proceedings is whether the evidence, taken at its highest, is such that the Panel is satisfied so that it is sure that the allegations could be proved.
The Panel has considered each sub-head of the charge separately. It has given consideration to all the evidence but has been careful to address only issues of the legal sufficiency of that evidence.
The Panel is aware that it has heard only the Complainants’ case. The Panel has not speculated about the nature of any evidence that might be adduced on behalf of Dr Southall. Instead, it has kept in mind throughout that it must reach its conclusions only on the basis of the evidence before it so far.
In respect of sub-heads 17(a) and 17(b), the Panel is satisfied that there is sufficient evidence upon which the allegations could be found proved. It therefore rejects your submission under rule 27(1)(e)(i).
In respect of 17©, the Panel has concluded that insufficient evidence has been adduced. It therefore accedes to your submission and accordingly it records a finding that Dr Southall is not guilty of serious professional misconduct in respect of head 17© as regards Mrs D.
MR TYSON: Madam, I wonder whether it would be possible to ask the Panel to rise for five minutes whilst we bring all our books back in and we are ready for the next stage of this case.
THE CHAIRMAN: Yes, of course. Is five minutes the length of time you need?
MR COONAN: Well, madam, about five minutes.
THE CHAIRMAN: Yes. Will you please advise us when you are ready.
(The Panel adjourned for a short while)
THE CHAIRMAN: We are all ready, Mr Coonan.
MR COONAN: Thank you, madam. Before I call Dr Southall, could I ask you, please, to receive the file for the defence documents that you have received already so they can be accommodated, because during the course of the evidence you are going to receive some more documents, and it is possibly a neat way of keeping them together. They will be supplied with dividers all ready.
THE CHAIRMAN: This will be D11.
MR COONAN: Well, it is just a file.
THE CHAIRMAN: I see. I am sorry, I did not appreciate there was nothing in it yet.
MR COONAN: You will appreciate that we have left you individually to file the documents that you have already.
THE CHAIRMAN: Just so I understand this, are the tabs intended to take the documents we have had already?
MR COONAN: Yes, they are.
THE CHAIRMAN: Then there will be subsequent documents?
MR COONAN: There will be subsequent documents, yes
THE CHAIRMAN: So each individual document will have a D number, but this is merely a convenient way of keeping it.
MR COONAN: That is right. You insert your D numbers according to the tab.
THE CHAIRMAN: Thank you. Sorry, I did not appreciate that.
MR COONAN: So, as I said, there will be more documents to come and more dividers will follow. I am told they run from 1-20 at the moment already.
(Pause while Panel members assembled their defence documents files)
THE CHAIRMAN: Could I just take this opportunity to say, thinking ahead this morning,
I understand you are calling Dr Southall, we were thinking of taking another short comfort break before lunch, so perhaps towards twelve o'clock.
MR COONAN: Certainly, madam. Thank you very much. Well, that task having been completed, I will call Dr Southall.
DAVID PATRICK SOUTHALL, Sworn
Examined by MR COONAN
Q Dr Southall, I think you know the personnel already and there is no need to introduce you.
A Yes.
Q Can you, for formalities sake, please, just confirm your full name and your professional address.
A David Patrick Southall, the Academic Department of Paediatrics, University Hospital of North Staffordshire, Stoke on Trent.
Q Could I ask you now formally, please, to produce your curriculum vitae.
THE CHAIRMAN: (Document handed) So this will be D11.
MR COONAN: Do you have a copy there?
A Yes, I do.
Q Can I just take you then to the current position. We see, at the top of the second page the position at present, you are a locum consultant paediatrician at the University of North Staffordshire Hospital.
A Yes.
Q We will come on to this in a moment, the Honorary Medical Director of Childhealth Advocacy International.
A Yes.
Q Could I just deal with that now. What is Childhealth Advocacy International?
A It is a humanitarian aid agency that addresses the needs of mostly mothers and children in very poor countries.
Q We look at the formal qualifications, they are self-evident, the Panel can see. I just take you to the non-formal qualifications. I think you were awarded the OBE in December 1998.
A Yes, I was.
Q For work you did in Bosnia and Herzegovina, is that correct?
A Yes, I worked for UNICEF.
Q Can I take you to page 3, because part of your previous career is relevant to the Panel’s consideration. Can we pick it up, please, at the period 1978-1982. Were you then an Honorary Senior Registrar in Paediatrics at the Brompton?
A Yes, I was.
Q Having had some experience of general practice.
A Yes, I did.
Q Then between 1982 and 1989 Senior Lecturer in Paediatrics at the Cardiothoracic Institute?
A Yes.
Q Then between 1986 to 1988 an Honorary Consultant in Paediatric Clinical Physiology at the Brompton Hospital, is that right?
A Yes.
Q Then from 1988 to 1992 a consultant paediatrician at the Royal Brompton Hospital and a consultant paediatrician within the Mid Downs Health Authority and in particular centred on Crawley Hospital?
A Yes, I was.
Q Between 1992 and 2004, were you the Foundation Professor of Paediatricians at the University of Keele and, at the same time, running in parallel with that, a full time consultant paediatrician at the University Hospital in Stoke on Trent?
A Yes, I was.
Q Did you retire from that full time post in late 2004?
A Yes.
Q Since 2004, have you been, as you indicated earlier, a locum consultant paediatrician at the University Hospital of North Staffordshire to the present?
A To the present, yes.
Q Your Foundation Professorship, did that lapse when you ceased to be a full time consultant paediatrician at the University Hospital?
A Yes.
Q It is convenient just to pause for a minute in looking through the formal appointments to focus on the period that you have set out there, 1992 to 2004. Was there a period within that period in Stoke on Trent when you were suspended from practise at the hospital by the Trust?
A Yes, I was.
Q Two matters, we will have to look at this in a little more detail, but for what period were you suspended?
A November 1999 through to, approximately, November 2001.
Q Did that mean that you had access to the Trust and to the hospital in that time?
A No, the opposite, I could not have any access. I did go there to meet with administrators and managers but not without supervision.
Q Did the suspension arise because of complaints and allegations being made about aspects of your clinical practice?
A Yes.
Q Were there, and again, in so far as it is necessary, were there any particular aspects of clinical practice which the Trust were looking at?
A Yes. Child protection was the clinical practice, and research.
Q Were there a series of inquiries during that period, 1999 to 2001, into those aspects of your practice?
A Yes, there was.
Q Carried out by or on behalf of the Trust?
A Yes.
Q What was the result of those inquiries?
A I was exonerated.
Q Then did you return to work in either the latter part of 2001/beginning of 2002?
A Yes. I had to spend a short period just being realigned clinically and then I went back to work.
Q When you say you went back to work in about 2002, did you go back to work in the area of child protection?
A No because there were still matters being considered by the General Medical Council, so it was agreed that I would wait until they had been looked at.
Q Let us just look again at page 3, under the heading of “Special Activities”, we note there, just over halfway down, that you were Chairman of the British Paediatric Association Working Party on the management of pain of sick children between 1994 and 1997. Can you just help the Panel, what was that about, just in a word or two?
A Yes. I had written the paper in a British Medical Journal concerning painful procedures in children and the fact that they were not really adequately being addressed. As a consequence, the British Paediatric Association asked me to set up a working party to explore this. We did, and we produced a book, a manual for paediatricians.
Q Then we see your role in Bosnia and Herzegovina as an advisor on maternal and child health, is that right?
A That is right, yes.
Q Are you still involved in that capacity?
A We have a programme in Bosnia but not in the same category as this, not to the same extent.
Q Then you were Chairman of the Working Party of UNICEF UK Child Friendly Healthcare Initiative between 1999 and 2004. Again, in a word or two, what was that initiative?
A This was a programme about the care of children in hospital, looking at the United Nations convention on the rights of the child and how it related to hospital care of children all over the world and we produced some papers and worked on this with UNICEF UK and are still working on it at the moment.
Q Finally, just to complete the picture, the last reference, I think you were director, since 2004, of the programme there described. Again in a word or two, what is the nature of that appointment?
A Basically we have developed a programme looking at emergencies in mothers, babies and children, so far in two countries, Pakistan and the Gambia, looking at ways of improving emergency care in the hospital sector and in the community sector. This project involves both training and improvement in resources. It is in collaboration with the Advanced Life Support Group, a charity in the UK, and in collaboration with the World Health Organisation.
Q We just move on smartly through this document. We see, on page 4, a summary of research and clinical audit undertaken by you. I am not going to take you to the detail, the Panel are able to absorb that themselves. We see, on page 6, particularly under heading 7, a summary of papers published in peer review journals, either as principal or secondary author, is that right?
A Yes, yes.
Q That takes us through to page 13. Again, the Panel are able to absorb that. I do not think, for my purposes, I need to take you, certainly at the moment, in particular to any particular one of these papers. Do you understand?
A Yes.
Q Then at page 13, you summarise papers published in other journals. By that, do I take that to mean non peer review journals?
A Yes, that is right.
Q Finally, we see a summary of chapters you have written in books and invited articles, in section 9.
A Yes.
Q Again, I am going to adopt the same approach, they are there to be seen, I do not take you through them in detail.
Dr Southall, what I am going to do next please to is ask you some questions about your work, firstly at the Brompton Hospital. Now we have seen from the CV already that you have been at the Brompton for some time. For my purposes I am going to concentrate on the period from about 1988 to 1992, which mirrors, according to the CV, your appointment as a full time consultant paediatrician at that hospital. That is not to say that the previous period is irrelevant, nor do I wish to shut it out, but I, for my purposes, am going to start in about 1988.
A Yes.
Q When you were appointed as a consultant paediatrician at the Brompton, full time, what were you appointed to do? It may sound a fairly obvious question but I think it is important. What were you appointed to do?
A In respect of the Brompton Hospital, as distinct from Crawley, where I was a district general hospital paediatrician, at the Brompton I had a special remit to look after complicated respiratory paediatric problems, in particular children – babies and children referred from all over the UK who were having difficulties in breathing or suddenly collapsing for no obvious cause. Some people have called those collapses apparent life threatening events.
Q Shortened to ALTEs?
A ALTE, yes.
What had happened was we developed a lot of equipment, non invasive monitoring equipment and recording equipment, as part of our research work. This was adapted to be used clinically to investigate these children that were referred to us, to try and work out what was going on during their events, some of which were clearly life threatening events.
Q When this equipment was used, was it used for the purposes of clinical investigation or research?
A In the cases that are referred to me as a consultant at the Brompton, it was for clinical purposes.
Q You have talked about referral to you at the Brompton, do we understand the Brompton in that sense to be therefore a tertiary centre?
A Yes. It was not a district general hospital, it did not have an accident and emergency unit, it predominantly treated children referred from other hospitals, and, in my case, for the purposes I have just mentioned.
Q Help the Panel please about the nature of your department. First of all, what was it called?
A Department of Paediatric Clinical Physiology and it comprised myself, as the director of the department. We had a registrar, a senior research fellow, Dr Martin Samuels. We had a number of research fellows, doctors coming from abroad usually or from the UK, sometimes, to learn about what we were doing. We had, at various times, one or two clinical nurse specialists. We had monitoring technicians who used to help by applying the equipment to the children. Secretary, I think that is – but we worked in parallel with the Clinical Department of Paediatrics as well, so that the children, when they first came in, were clerked in as per normal, as any child would be by the registrar, senior house officer, senior registrar, whatever it happened to be, as normal, and the nurses as well were looking after the patients as they would look after normal patients.
Q Where was the department situated physically?
A It changed. It started off just across the road in the Cardiothoracic Institute and then moved to be more close to the wards, when it became, I think, the National Heart and Lung Institute; changed name.
Q Apart from the clinical investigation work that you described, was there work which might be described, and I ask this in general terms, as child protection investigation work?
A Not initially. What happened was that
Q In the period we are talking about, 1988 to
A Yes, during that period it was. That was because in 1985/6 we had been referred some children for investigation of ALTE, who had turned out to be suffering from intentional suffocation by their parents. So it was only then that we started to become involved in child protection.
Q Again, this is a general question, did some referrals, referred on the basis of clinical investigation, as it were translate into child protection cases?
A Yes, although usually the paediatrician referring had some idea that might be a problem in that direction, before referring, but not always.
Q Mention has been made in passing to what has been called covert video surveillance. This case is not about that, but help the Panel please as to how it fits into the mosaic of your practice. Was covert video surveillance performed at the Brompton?
A Yes, it was. It was performed by the police in collaboration with social services and us.
Q The physiological recordings which were carried out for the purposes of clinical investigation, produced what in terms of material? Help us about that.
A To start with, we had reel-to-reel tape recorders to collect the data with. Then we developed some computer disks. Then we produced, from these two sources, printouts, chart printouts, so you could look at them manually. Then we developed a screen system that you could look at the recordings on and print out only sections that you wanted to look at. So it developed with time.
Q In the period 1988 to 1992, and if necessary we can look at some examples, did the physiological recordings, quite apart from the tapes, did it produce paper?
A Yes.
Q Did it produce or was it associated with the completion or creation of logs of infant activity?
A Yes.
Q How did that come about?
A During the recordings, and in addition to the nursing records, the nurses and the parents were asked to fill in a form so that if there was any event during the recording, it was written on the form, a log of infant activity form. We would then take that to the department after the recording and look at the recording, print it out into chart paper, usually about 250 pages per recording, and look through that and correlate it with the infant activity chart.
Q After the charts had been completed, was there a document called a report which was completed?
A Yes.
Q Who completed the report?
A Usually it was Martin Samuels or myself.
Q What was the purpose of the report?
A It was to produce a written copy of the result of the recording, in broad terms, not each individual bit of it but a summary.
Q Can we just look, by way of example, at those two documents. Again, simply taking this at random. Can you take out C5 and just look at Child A for a minute. Look at page 145, is that an example of the log that you have just been describing?
A Yes, it is.
Q On the log we see reference to the special case number on the top right-hand corner.
A Yes.
Q References, on the face of the document, to the tape itself.
A Yes.
Q If you move to page 147, we see in the top left-hand corner of the document “Report”.
A Yes.
Q In the middle of the document there is reference to an “SC” number; in this case “1209”.
A Yes.
Q Is that a reference to a special cases file number?
A Yes, it is.
Q In the bottom left-hand corner, there is an instruction: “Copies to be taken for:” and then there are three boxes: “Our Departmental patient’s notes”; “Patient’s Brompton Hospital folder”; and “Accounting file.”
A Yes, that is right.
Q That was the intention.
A Yes, it was. That was the plan.
Q In relation to these documents, at the moment we have about four separate categories of material: the tapes themselves; the printout (which could be 250 pages); the log; and the report.
A Yes.
Q This case, in part at least, is about storage and transfer of documentation, so I must deal with this. First of all, where were the tapes themselves stored?
A In our department in boxes.
Q Was it feasible to have the tapes themselves within – and it is an expression used by Mr Chapman – “the main library notes”?
A No, because these tapes were heavy and sometimes multiple. It would be impractical.
Q Technology moves on, but between 1988 and 1992 what sort of tapes were they?
A Reel-to-reel.
Q They are probably obsolete now, are they not?
A We have them and we have the recorder.
Q But in terms of everyday uses now---
A Yes, it is mostly computer now.
Q Where were the printouts kept?
A In the box as well. I think they were in a separate box, because they were even bigger than the tapes.
Q But they were all stored.
A Yes.
Q We have just looked at a log by way of example. Where was the log kept?
A In the special case file.
Q Was it ever intended that a copy of the log be put into the main library hospital notes?
A No.
Q Why was that?
A Because it required us to interpret it.
Q When you say, “required us to interpret it” what do you mean by “it”?
A The log of infant activity, the data on it, was relevant to what we were looking at on the tapes. You could not interpret this without the tapes and the printouts. But we did not stop the nurses keeping records of any events – in fact, the nurses were encouraged to keep a record of any events that were occurring.
Q That would go in the Kardex.
A In the nursing Kardex in the main hospital record file.
Q Fourthly, the question of the report. Looking at page 144 as an example, where was it intended that document should be found?
A It was intended to go in the departmental patient notes (that is, the SC file), the patient’s Brompton Hospital notes (that is, the main record)---
Q The main library file.
A ---and because at some point – and I cannot remember when – these patients were being charged for by the hospital, the managers received a copy of this for accounting purposes.
Q You have talked about the placing of at least the log and certainly a copy of the report in the departmental files – and you described them as special cases files. That all brings us to this question: what was the underlying purpose of the creation of a special cases file?
A Basically, the patients we were looking after were quite unwell, some of them – I mean, dangerously unwell – and at any time could develop difficulties, even in their local hospital or at home. We needed a system that the nurse specialist, Martin Samuels or myself could find out quickly what was going on with the child. Our experience at that time with the hospital records, although they did their best, was that it was not a particularly fast or reliable way of finding out details on a patient. Having our own filing system like this meant we could rapidly, at any time, find out the details of the child. That was one of the main reasons, but there are other reasons as well.
Q Let us deal with those other reasons. What were they? I am dealing with 1988 to 1992, but it may be that the reasons underlying it were in the period before that. Deal with it in whichever way you wish.
A Basically, because of the nature of our work, which was at the leading edge, if you like, of trying to understand these problems in children, we were writing up our results all the time. We were presenting data at meetings, we were telling people what we were finding, so that it would help district hospital paediatricians better manage this kind of problem. In our terms, that is “clinical audit” work; that is, experiencing development work in children’s health which we felt we had a responsibility to publish.
Q Did you use the SC files after they have been created to scrutinise and peruse for the purposes of the literature in which you were engaged?
A Yes, we did. It was the best way, because it was all together in one place, that we could get our hands on, to look at the data and analyse it.
Q Some children, I think we have heard in the case, had home monitoring facilities.
A Yes.
Q How necessary was it that you would have to have access to the notes on any given 24-hour basis for such children?
A There were two kinds of home monitoring devices. One monitored a baby or child and set off an alarm. The other recorded information during an event on to a computer disk. If that happened, say on a Saturday, the mother/family would be encouraged to contact the on-call doctor or nurse from our department and tell them what was going on. Usually, if it was the recording type, the disk would come up and we would analyse it, or, if the event was particularly worrying, we would say, “Go to the local hospital now and we will talk to the hospital about transfer to come back to the Brompton.” It is an emergency system. To get hold of hospital records at the weekends and so on was really difficult; yet having this material was much easier.
Q When the SC files were created and continued in respect of a particular patient, who had access to the SC file in a given case? Would you just run through the people who had access.
A Predominantly it was the people in our department who had access.
Q And you have referred to them.
A Yes, but, if anybody wanted access from the hospital side (that is, either nursing staff, doctors, other consultants or administrators), they were there for them and they knew they were there.
Q When you say, “they knew they were there” can you be a little more specific. How do you know that they knew they were there?
A It was a constant dialogue between the children’s ward and us with each of the patients. It was not as if these were coming in rarely. These were coming in two or three a week – maybe more. Sometimes we were occupying half the beds on the children’s ward because of the rate of referral. Constantly we were doing recordings and collecting data. The nursing staff and doctors on the ward knew what we were doing. They knew about the filing system and how it worked.
Q Again, this is a general question. Within documents which were filed in what I am calling the “main library file” would you expect to find references to the existence of the SC files?
A There would be the same number; that is the hospital number and the special case file number should be on all documents. I recognise it is not in every case. It should be. That was the plan. Being as it is, sometimes I did not fill them in, but usually there would be cross-references available in each patient’s main medical file.
Q Thus far, when you have been dealing with the reasoning for the creation and continuation of the special cases files at the Brompton, you have not touched on the potential relevance of child protection issues as a rationale for the special cases file. Is that, first of all, a reason for the creation or continuation of SC files or not?
A When we started to get the child protection cases coming to us and we became aware of this problem, we discussed: “How are we going to store this information?” As each child with a child protection problem presented, you would have social services confidential documents coming to us on a regular basis, and we were aware that there were some major reasons why these documents needed to be kept in a highly confidential way, not the least because of the covert video surveillance. In other words, if we had a strategy planning meeting about a child---
Q When you say “we”, who is the “we”?
A Led by social services, but including the children’s unit staff, our department staff, the police. The minutes of that meeting went into the main hospital file and in it would be a recommendation that we were going to do, say, covert video surveillance. If that linked to the parent involved, it could be dangerous. There was all manner of reasons why we felt this material should be in the special case file in our department, away from the ward area but known about.
Q Did members of your department and ward staff know, as far as you are concerned about the repository of – using this in a broad sense – child protection material within the special cases files?
A Yes, they did.
Q How many special cases files do you think, looking back, were in existence by 1992.
A I do not want to guess. There is an answer, probably, by looking at the computer. It is over 1,000, I would think.
Q I was hesitant to go to the computer because the evidence about the computer – at which we will look – relates to a current figure.
A Yes.
Q I wanted to know if you could estimate.
A I think about 1,000 but it is not accurate. (Pause) Actually, it is more than 1,000, because for [Child A], what we were just looking at, it is ‘SC1209” which suggests more than 1,000.
Q I see. It ran in numerical order.
A Yes, it did. Because this was 1987, it could be a lot more.
Q If the precise figure becomes relevant, we can look at it, chairman. At the moment, a significant number: over 1,000 by 1992.
A Yes.
Q Can I look with you, please, at the question of computers at the Brompton.
A Yes.
Q Did the department have a computer in the period 1988 to 1992?
A I think this is where my memory is not going to be very good. I think so but I am not one hundred per cent sure how much data was going into it compared with later. I think we did, yes.
Q Did the hospital have its own computer system?
A Yes.
Q Insofar as you have a computer system in the department, was that linked to the hospital computer?
A No.
Q What data do you think would have been stored on the stand-alone computer in the department?
A I think it would be the basic information about the patient: name, date of birth, referral details, GP, referring consultant – that kind of data – plus the result of the recording data.
Q Who would have had access to that stand-alone computer in the department?
A Department staff only. My department team.
Q You have described the members of that team.
A Yes.
Q What was the purpose of storing that data on the computer in the department at the Brompton when you had hardcopy material or, indeed, hard original material – and we will look at that in a minute – in the SC file itself?
A I think we were in the process of developing the database, so that, for instance, if you had a diagnosis of Down’s syndrome you could go to the computer and call up all the numbers in the special case files that were children with Down’s syndrome and then you could pool those special case files and do your clinical audit. That is what we were developing but I cannot remember when we developed the database.
Q Would the hospital computer system at that time do that task for you?
A Possibly, but not as well. The hospital was dealing with paediatric cardiology as well as paediatric respiratory disorders and therefore what was entered into the fields, if you like, in a database would be different from what we would want to enter into the fields on a database. The answer is that it could possibly have helped you, but not as precisely as what we were trying to develop over time.
Q Could you take C3, tab 7(d)(i), page 75. It is the Jawad letter, written or at least signed by Dr Jawad on 14 December 1990 under the heading of the National Heart & Lung Institute. I have not asked you about that. How did that have a relationship with the department that you have been discussing?
A That was the research wing; the hospital was the clinical wing.
Q The institute was physically situated within the Brompton Hospital site, was it?
A More or less: across the road a bit and early on.
Q It was copied to you and to the ward clerk of the Rose Ward. Is that the children’s ward?
A Yes, it is.
Q It reads:
“…following discussion with Dr Southall, it was agreed that all the cases admitted for overnight monitoring…”
Pausing there, is that the sort of physiological report you have discussed?
A Yes, because most of them needed only one night recorded.
Q It continues:
“…will not require any discharge summaries except for the complicated cases which require further procedures and management. Dr Southall is quite happy with a copy of the computer sheet which usually sufficiently states the aim of the admission and the possible diagnosis and the recommendations. The computer sheets are usually typed and provided by Dr Southall’s department which should be filed in the notes by the Ward Clerk.”
There are three matters I would like to ask you about. First of all, the reference to “the computer sheet” rather suggests that there was a computer in 1990 at the Brompton. Does that suggest a departmental computer?
A Yes, that is our one.
Q What are the computer sheets to which Dr Jawad has referred?
A One of them is what we have already seen, the result of the recording sheet.
Q That is the report.
A The report. The other is a summary of the child’s information – a bit similar to what is in the main hospital file already.
Q Then it says that these documents “should be filed in the notes by the Ward Clerk”. Which notes do you think Dr Jawad was talking about?
A The main hospital file.
Q Would you help us about the concept of a ward clerk. What does a ward clerk do?
A They sit on the ward near the nurses’ station and are responsible for keeping he main hospital medical records file up to date with all the results in .
Q Would you expect the ward clerk from time to time to know of the existence of the special cases files?
A Yes. All the time.
Q Did you approve of the content of this letter by Dr Jawad?
A Yes, that is my handwriting.
Q Whereabouts?
A All of the handwritten parts are mine.
Q During the period we have been looking at, 1988 to 1992, did you or, to your knowledge, any of your clinical colleagues in the department have experience of a problem in access to material in the special cases files which might not have been in the main hospital library file?
A I cannot remember, no. No, I cannot remember anything.
Q Did any problem ever arise in relation to consultants/clinicians from other hospitals having a problem getting to know about the full picture of a child’s clinical treatment and investigations up to any particular date?
A I cannot remember any, but, of course, there are hundreds of patients going through and it is possible that, for instance, a referring consultant might not have received a report. That happens all the time. They would have rung up and we would have sent them one. I cannot say it did not happen. I cannot remember it but it probably did happen occasionally that there were problems with data.
Q Was any specific problem referable to the existence of a special cases file?
A No. This was over the whole, both the hospital medical files and the special case files. You would of course occasionally get problems in the post or if something went astray and a doctor wanted to know about it.
Q We come to 1992. We have heard the department closed.
A Yes.
MR COONON: There is a reference in the document.
MR TYSON: It is not important, but we have not heard.
MR COONON: The documents are before the Panel.
(To the witness): The department closed, is that right?
A Yes. That is very important. It did close. When I moved, the department closed. There was no further activity in the Brompton Hospital at that time in that sphere of clinical activity.
Q When you say the department closed, what do we understand by that? Closure can possibly mean many things, you understand.
A We had, by the time I left the Brompton, a large number of patients being referred on a regular basis to us as a tertiary centre. We had a lot of equipment, monitoring, recording equipment, data files, everything, that when I got the job at Stoke it was agreed with the managers at the hospital that I could take this equipment with me. You are talking about, you know, many hundreds of thousands of pounds worth of equipment which belonged to the Brompton Hospital. So there were lots of discussions around that time, which I cannot remember in detail but I know happened, about us being allowed to take all of this with us, because nobody was going to be left at the Brompton Hospital who could use any of it.
Q Let us just pause there, and I am going to break this down. Did all or some of your staff at the department in Brompton relocate to Stoke?
A All of them, including the nurse and the secretary.
Q The work of the department, was it then, as it were, transferred or absorbed into another department, or another part of the hospital of the Brompton, as far as you know?
A It stopped.
Q Now, in terms of the equipment, let us break that down. What sort of equipment went from the Brompton to Stoke?
A All the home monitors and event recording equipment, the tape recorders that were used to collect the physiological data, the printers that printed it out, the computer with the data in it, the special case files that were part of the – and I should point out that some of the patients moved with us, quite a lot actually moved to Stoke, because this was a tertiary hospital in the Brompton, and when we moved to Stoke it became a tertiary hospital for the purposes of this kind of patient.
Q It may be obvious, but patients of course remained at their home addresses, the referral base shifted?
A That is right, because they still have the district general hospital in, say, I do not know, Winchester, or something, and we continued to look after them as if we were still at the Brompton but now we are at Stoke.
Q When this move was taking place, did you personally have regard to any protocol or any policy governing the removal of notes or equipment at that time?
A No, I did not, I did not know of any.
Q If you can be a little bit more precise, when did that physical removal take place?
A I think it was June 1992. Over the period of a week a big lorry, you know, like a house move, came and moved all our stuff from the Brompton to Stoke.
Q In the special cases files at that time, and this is a general question now, would there have been therefore the logs completed by the nurse and/or parent?
A Yes.
Q Would there have been other material which was not in the main library file?
A Yes.
Q Did you perceive there to be any problem in relation to the fact that there was material in the special cases file which was not in the main library file?
A I did not at the time. I can see now that there are some issues about this, but at the time I did not consider that was a problem back then, and once we separated from the Brompton to go to Stoke there would be no further contact, if you like, between the Brompton Hospital and those patients in terms of the disorders I was dealing with.
Q Again, can you estimate how many of the patients who had been referred to you at the Brompton, as a tertiary centre, then, as it were, using your phrase, went with you to Keele, to Stoke?
A There were two types of patient: one is those where we are continuing to provide clinical input, clinical input, such as say a child with very severe episodes needing drug treatment or home monitoring, and then there was the child protection group, where we would continue to need to be in touch with the courts, or social services, about them at that time.
Q Did Dr Samuels know of these matters, as far as you were aware; did it extend to the same as your knowledge?
A No, I do not think it did, because when he came to North Staffordshire he became a consultant, but prior to that he was senior registrar in my department, and therefore the responsibility at that time was mine rather than his, because he was not a consultant, he was still a doctor relatively junior – he is a senior doctor but relatively junior; he is called a junior doctor.
Q Your appointment at Stoke, first of all, was that straightaway as a consultant paediatrician at the University Hospital?
A Yes, it was.
Q Was that associated with you being appointed as Foundation Professor at the University?
A Yes, it was.
Q Just help the Panel insofar as it is necessary, was there a medical school at the University of Keele at that time?
A A postgraduate medical school only, not undergraduate.
Q The foundation professorship was in respect of what academic discipline?
A Paediatrics, research more than education.
Q There is one further document I would like you to look at whilst we are still in the Brompton arena. Go back to C3, please, to the same tab we were looking at before, C3 7(d)(i), just to look, please, at page 3. Again, it is a document we have looked at before. Is that a Brompton document or a Staffordshire document?
A I suspect it is Staffordshire---
Q Right, we will come back to that.
A ---but I cannot be certain. The reason I suspect is because Dr Samuels is listed there not as a research fellow or registrar but in the same category as me, so I think he was a consultant, so I suspect it is Stoke, but I cannot be sure.
Q If you just turn over the page to page 4, that clearly is a Stoke document and we may look at that later on.
A Yes.
THE CHAIRMAN: Mr Coonan, could we look for a convenient point for a short break in the near future.
MR COONAN: Madam, that is a perfect time, if I may say so.
THE CHAIRMAN: Thank you. Can we take fifteen minutes. Dr Southall, you have heard me say many times to witnesses that while you are on oath you may not discuss the case, and I give you that reminder.
(The Panel adjourned for a short while)
THE CHAIRMAN: Mr McFarlane wants to make a short personal statement arising from what was heard before the adjournment.
MR McFARLANE: Thank you, Madam Chairman. From perusal of Dr Southall’s curriculum vitae, I looked down the list of dates and I wish to announce that in January 1987, and I finished at the end of January 1987, I was working as an orthopaedic registrar in that part of the world, and my duties included an out-patient clinic on Monday mornings and an operating theatre session on Friday mornings at Crawley Hospital. Outwith those times I was working at the hospital up the road, the new East Surrey Hospital. I had no duties within the actual main body of the hospital, including the children’s wards, and at no time did I ever come across or meet or in fact hear of Dr Southall. Thank you.
THE CHAIRMAN: I trust that statement does not in any way affect you, but we felt it was appropriate for it to be made.
MR COONAN: I am very grateful. Thank you very much.
MR TYSON: I am equally grateful to Mr McFarlane, and in no way would the complainants seek to have him having to recuse himself from the Panel in the light of that.
MR COONAN: Dr Southall, we were dealing with matters of a general nature at the Brompton as to the provenance of special cases files generally. Can we see, please, how you dealt with this in your solicitor’s letter of observation. If you turn to C2, tab 6©. This is an extract from the letter of 24 January 2006, although the date does not appear on the document in front of us but it is in fact 24 January 2006, and if you go over the page to the top of page 9 you will see the first paragraph beginning:
“Professor Southall first started using Special Case ….. files in about October 1980.”
A Yes.
Q Then there is a series of passages culminating on page 11 at the end of the penultimate paragraph, do you see that?
A Yes.
Q Ending with the move to Stoke.
A Yes.
Q Now, I am not going to take you through this in detail, but does the summary at pages 9, 10 and 11 encapsulate the evidence that you gave this morning as to the provenance and reasoning for special cases files?
A Yes, it does.
Q I should add, if you go to the bottom of page 12 of the same document, right at the bottom the writer says:
“Thus, Professor Southall used Special Cases files in two situations:
1. To keep documentation relating to the specialised monitoring of children that he was undertaking.”
Was that true?
A Yes.
Q “In our submission these documents were not part of the usual medical records of the patient and it was entirely proper for them to be kept separately.”
Can you comment about the formulation there set out by your solicitor?
A Yes. The main hospital records, say at the Brompton Hospital as we were talking about, consists of the clerking of the patient by the doctors, the nursing Kardex, the basic structure of a hospital admission - I would say you could use the term “usual”, or “main” medical file I think was used this morning earlier. Our documents, we regarded them as different and totally related to what we were doing, and to help us with clinical audit and clinical management, particularly in emergencies.
Q When the solicitor says “In our submission these”, the word “these”, what was intended for that word to refer to?
A The log of infant activity charts, special documents that were completed to help with our clinical audit, for example patient data forms, which are asking specific questions, not general questions that a clerking doctor would ask, but specific question, for example if you a had a child with suspected upper airway obstruction there would be some specific questions we would want answers to that would help us write papers on the subject. The child protection, in those cases where we were involved in child protection, it would include all documentation with regard to child protection, and if for instance a patient became a child protection patient, that would be a sea change, if you like, in the way we looked after them. This would then become very different to all the other much larger number of clinical patients.
Q If you look at the second point you say, or your solicitor says:
“To store confidential documents relating to child protection issues.”
What was intended to be conveyed by that sentence?
A That we had a policy that all documents that related to child protection went in the special case files, because they were highly confidential and we could not afford them to be looked at by anybody who did not have a direct reason to look at them.
Q Over the page, top of page 13, you say, the first three lines:
“…staff working on the unit knew of the existence of the Special Case files and could have obtained access to them 24 hours a day via the on-call member of Professor Southall’s team.”
Then just to help the Panel the next paragraph deals with Stoke, and I will leave that for the moment. Dr Southall, as I say, I am not going to take you through the body of pages 9, 10 and 11. The Panel of course can read it and you can be asked further questions about them if necessary, but you have told the Panel that that in effect summarises the background to the creation of these files.
A Yes.
Q I want to come on, please, to two specific cases that the Panel are concerned with, Child A first, and it is in the context of documentation and special cases files. This is a Brompton patient only.
A Yes.
Q Now, to set the scene, can we just refresh our memories, please, by taking C2, tab 3, and just to refresh our memories and also for you to comment where appropriate as to your involvement and your team’s involvement with Child A.
A Yes.
Q Can we start, please, at C2 3(d). This is a letter from Great Ormond Street to Dr Warner at the Brompton, and we heard evidence that, because at that sage you were not, as it were, a full-time paediatrician, the patient was admitted nominally under the care of Dr Warner, is that accurate?
A Yes. We were both involved, but he was nominally the consultant clinical paediatrician.
Q Do you remember Child A?
A Yes, I do.
Q I am just going to take you through briefly the relevant notes for you to comment where appropriate. The Panel of course are able to read these for themselves. There is a letter of referral. Is there anything you want to say about that?
A Only the timing I suppose. This was shortly after we had been involved in child protection work, and I think the word was out that we had some facilities which could help sort out these difficult type child protection problems, so I think that part of the referral related to our clinical physiology work but also our child protection work.
Q If you go to the third page, you will see under “Opinions”, these are opinions expressed by Great Ormond Street, first Dr Brett and then Dr Wilson, and then this:
“All consultants wondered about Munchauson-by-proxy.”
A Yes.
Q Did you become aware that a question mark had arisen about Munchausen by proxy?
A Yes, I did.
Q The child was in due course admitted. If we go to the next tab, which is (e), there are clerking notes at the top of page 4:
“Transferred from [Great Ormond Street].
Admitted for monitoring
[complaining of] attacks of apnoea, deep unrousable state; pallor, hypotonia and small pupils.”
Then over the page, and these matters have been drawn to the Panel’s attention I think by Mr Tyson earlier, towards the bottom of page 5, again the history is summarised in relation to this child’s attacks. Then on page 7, on 11 January, “minor episode observed”. Then on page 10 a note, apparently by Dr Samuels, during this admission. Then on page 11, on 29 January, there is a reference to yourself, halfway down the page:
“David Southall saw moderately severe episode from onset to completion. No obvious neurological/respiratory problem. ? significance of pupillary reaction – may be response to light/movement/noise, etc.
Feels no need to perform further cardiorespiratory monitoring or video.”
Then the plan, again Dr Samuels’ note:
“To [discuss with] Dr Leonard’s team” – that Great Ormond Street – “re: probability of going home – support (medical/social) needed locally (?)” and then the locality is referred to.
If you just keep your finger on that document and go to C5, please, and go to page 144, beginning at 144, are there a series of documents relating to this admission?
A Yes.
Q 144 and 145. The first one is a report and the second one the log. Were these all produced during this admission?
A Yes.
Q Again, if you can just keep that to one side of you, please, and go back to the main notes in C2, I just note this in passing, on page 13, February, is there a note there in relation to the carrying out of an MRI scan, halfway down the page?
A Yes.
Q I think finally to complete the summary picture of this admission, just please look briefly at C5 again, page 116. This is a document which appears to be a medical report by you, signed by you, is that right?
A Yes, it is.
Q Dated 17 February 1987. Does it reflect the results of the admission?
A Yes, it does.
Q I would like please just to take you to the last paragraph on page 117. I do not think it is necessary to read it all out but I draw, through you, the Panel’s attention to the body of that last paragraph. I do take to you the summary on page 118. Can you just read out the summary into the record please.
A “[Child A] has episodes of
Q Do not use the first name, please.
A I am sorry.
Q Child A.
A “[Child A] has episodes of sleep which are associated with pallor, difficulties in arousal and small pupils. They do not affect vital functions and have not in any way influenced his development and are therefore harmless. They are probably a normal variant of infantile sleep behaviour.”
Q Mr and Mrs A.
A “... must now accept that their child is healthy and not seek further investigations or abnormal care procedures. It is our opinion that this can best be achieved by family therapy.”
Q Thank you.
Having dealt with the summary of that admission, can I then come to the questions which will no doubt exercise the Panel. First of all, when you moved to Stoke, did the main library record for Child A remain at the Brompton?
A Yes.
Q Did you take the tapes for Child A to Stoke?
A Yes.
Q When you told us earlier that the computer at the Brompton went with you to Stoke, so I am clear about this, would there have been, do you think, data in respect of Child A on that computer?
A Yes.
Q Did that go to Stoke?
A Yes.
MR COONAN: I want to concentrate, please, on the special cases file. For these purposes, can you have in front of you Appendix One of the notice of hearing, but in its unamended state. Do you have that next to you?
A No. I have the amended version.
THE CHAIRMAN: Mr Coonan, I have to confess, I myself have disposed of my copy of the unamended version. We considered it was no longer relevant.
MR COONAN: It may still be relevant in terms of background history and it may be useful.
THE CHAIRMAN: I see I can view a copy anyway.
MR TYSON: Before this witness is asked to answer these questions, can I just have a word with my learned friend because Appendix One has been a living document and I just wonder which version of Appendix One he wishes to have.
MR COONAN: Yes. (Pause)
My learned friend has cleared up the position. I did not know what document you had had at the beginning of the inquiry. It looks as if the Panel had at the outset a document which was rather lengthier than the current one. It was the lengthy document I was going to ask you to look at now. It was at that point that I think Mr Tyson said, “Hang on, wait a minute, which document does the Panel have?” It is now clear you did have a rather more extensive document and I can see – if Mrs Lloyd will forgive my rudeness – the document is apparent that you have and that is perfect for my purposes.
THE CHAIRMAN: Unfortunately a number of us did assume that the heads of charge, having been amended, that that document was not required. I know Mr Simanowitz also does not have a copy.
MR COONAN: It does not cause me a problem personally.
THE CHAIRMAN: If the old agenda could perhaps be put there to correct this.
MR COONAN: It may help the witness. It is Appendix One that I am concerned about.
Dr Southall, you will see, I am just using this just
A It has gone. Sorry.
Q Sorry, the Appendix One of the old-
A The old one has just on gone. (Pause) I am sorry, my fault, it is at the back. Sorry.
Q Dr Southall, I just want to address with you the material which was in the old version. I am going to call it the old version of Appendix One. We will see in that there were five documents.
A Yes.
Q The assertion, and in fact you have admitted this in the formal admissions, D9, that there were certain original documents in the special cases file which were not in the main library file. All right?
A Yes.
Q It is therefore helpful to look at those documents which in fact are not in the main file.
A Yes.
Q There are four that I want to look at for the minute. There are four infant activity logs. The page numbers in the SC file, which is C5, are set out. All right?
A Yes.
Q Can we just deal with them compendiously. In a word or two, what was the reason why those physiological recordings on Child A were put in this special cases file but were not put into the main library file?
A Well in order to interpret the physiological recordings, you need the infant activity logs.
Q Did that apply to each of those four infant activity logs?
A Yes.
Q I am not going to trouble to take you to the documents in C5, we have looked at two examples this morning already. I do take you to one other document. Can you have a look please at D9. It is the admissions. I will need to look together at some of these items. Under case A, you will see the first four refer to log of infant activity. Yes?
A Yes.
Q It is a fax. I can lead on this, I am sure. Those four documents are identical to the four which appear in the old Appendix One. All right?
A Yes.
Q So we have dealt with those. I want now to look please at the correspondence which is in D9. That consists of items 5 through to 9.
A Yes.
Q You have admitted that they are not contained elsewhere in the hospital medical records at the Brompton.
A Yes.
Q In other words they were in the special cases file which you took to Stoke.
A Yes.
Q Is there a global reason why those items of correspondence were put in the special cases file or are there individual reasons per document?
A There is a global reason.
Q Look at them in a minute. What was the global reason for those documents being in the special cases file only?
A When a decision had been made that a patient was child protection patient, thereafter, clinical activity ceased and child protection activity began. Any correspondence coming in after that date was put into the special case file.
Q I am going to ask you now therefore to look, in the light of your evidence, to the special cases file and look at the correspondence. This is C5, for Child A. It starts at page 92. Since it is a letter from Dr Reading to you, obviously it is the original letter.
A Yes.
Q Again, in your opinion, was that justified in going into the special cases file?
A Yes. It fitted with the global policy and it contains information about social services, wardship, and is from a consultant child psychiatrist.
Q The next document, page 115. I am following the sequence in D9. Do you follow?
A Yes.
MR COONAN: This is a file copy letter from you to Dr Reading.
THE CHAIRMAN: I am sorry, which page is this?
MR COONAN: 115. You have accepted in the admissions that there is no copy of this file copy in the main notes. Again, the reason for it being in the SC files?
A It is after the date of decision that it is a child protection case, no more clinical involvement, and contains information on child protection.
Q The next document please is at page 37. This is a letter from Dr Leonard to you and therefore is an original letter.
A Yes.
Q This is not in the main library file. You have accepted that in the admissions?
A Yes, I have.
Q What is the reason why it was in the special cases file?
A Because it was after the decision had been made. In this case, it does not really contain anything about child protection as such but it was because of the policy that we – we did.
Q On page 36, again can I have your comment please on that document?
A After the policy, does contain information related to child protection.
Q Finally on page 35, again, in the CS files but not in the main file.
A After the policy, but this time I do not think there is anything in there really that relates to child protection.
Q On its face but, just help the Panel therefore, what is the rationale for it being in the special cases file?
A Because the decision had been taken, this was no longer a clinical case, it was a child protection case. It could have gone into the main file as well, I have absolutely no problems with that. It would not have done any harm or really would not have made any difference. The child would no longer be involved in care at the Brompton Hospital after that point anyway, so it did not contribute either way.
Q We just note in passing, on page 35, there are other examples, but I would use this to illustrate the point, we see some writing on the top right hand corner, with initials.
A Yes.
Q Whose writing is that?
A That is my writing.
Q What does that writing in that form signify?
A It means that Dr Samuels, MS, should have a copy or have seen a copy and it should go into the SC file. Is it 1209? I cannot remember for certain.
Q Yes.
A Okay, so that is the number, although that is not my writing.
Q The number is not your writing?
A No. No.
Q The number 1209 appears, and I think we have seen it already, on the physiological recording document.
A Yes, that is right.
Q So you are right. The Panel will be obviously keen to know whether this correspondence went into the special cases file, placed there either directly by you, at your direction, or on your behalf.
A Well it would not be by me, so it would have to be either on my direction or on my behalf but it was not by me.
Q Do you accept that it was placed on your behalf?
A Oh yes, yes.
Q The next aspect to this which I am going to ask you to deal with concerns the MRI report, which is the last item in the admissions D9 and also appears in the notice of hearing in bundle versions. Perhaps we could start this sequence, please, by looking, first of all, at C5, page 131. Do you have that?
A I do.
Q If you turn the page, you will see in our bundle an exact photocopy.
A Yes.
Q The position about this can perhaps best be illustrated if you now produce the original SC file and turn up what we see in our bundle. (Original SC file handed to the witness) For the record, the SC file in its original form is in a pinkish folder.
A Yes, it is.
Q On the face of the folder is there anything written?
A Yes. It says “Child A. Original papers from special case file 1209.”
Q Would you turn in your bundle C5 to the very first page. Is that a photocopy of the face of the folder of the file?
A Yes, it is.
Q Is that your writing?
A No.
Q Would you open the file, please, and take out any documents which bear on the physical MRI report.
A Which bear on it?
Q Any document which appears to be an MRI report. (Pause)
A Yes, I have those two pages.
Q From your standpoint, does one appear to be a copy of the other?
A Yes, the second one appears to be a copy.
Q As to the first one which you have, does that appear to be an original?
A Yes, I think it is original.
Q Why do you think it is original?
A It looks like the original ink for the signature.
Q So far as those two documents are concerned, either the original or the copy, did you intend that either or both of those two documents should be filed along in the special cases file?
A No, I did not.
Q Where did you intend or anticipate that the MRI report should be filed?
A The one that is the original signature should be in the main hospital medical file. The copy could have been in the special case file
Q Do you accept the proposition that the original report should have been in the main library file?
A Yes.
Q As a matter of pure fact, does it appear that these two documents went within the special cases file – in the folder, perhaps, or the special cases file – to Stoke?
A Yes.
Q Did you know at that time, when it was removed to Stoke, that it contained the MRI report in the special cases file alone and that it was not in the main library file?
A No, I did not.
Q So far as the Brompton computer is concerned, would you help the Panel about this. As far as you understand it, would there have been a copy or a representation of the MRI report on either the hospital computer or the academic department computer or both?
A There certainly would not have been a copy in the department’s computer. There would be no reason for that at all. I cannot recall the systems in place at the Brompton with regard to it being on their computer system. The first I heard about it was with Mr Chapman. I always thought, though, that X-ray reports go inside the X-ray folder as well as in the notes. In any hospital I have worked in, you have both the X-rays themselves, the images, and a report in the folder as well as a report in the notes.
Q Speaking generally, would any report that goes in the folder be an original or a copy?
A I think it would be original. There would be one original in the notes and one original in the X-ray folder with the images.
Q There can be more than one original?
A Yes – in my experience.
MR COONON: Madam, I do not know whether you would like to see those two documents. You have not seen them before in their present form.
MR TYSON: Madam, I am perfectly content that you should look at the two. Taking into account the fact that it is admitted one is an original and one is a copy, you are not being asked to look at them in the role of handwriting experts or the like. I do not want you to use any expertise that you might have; it is just commonsensical, I think, in virtue of the admissions. You are not being asked to do a forensic task, I suspect, but it is admitted that one looks more original than the other because of the handwriting.
MR COONON: I would simply want the Panel to see the documents. It is convenient to do that now. I an not asking them to adopt a role of pathologist or handwriting expert at all. You may be interested; you may not.
MR TYSON: I am encouraging you look at them.
THE CHAIRMAN: We would like to look at the documents. We accept Mr Tyson’s caveat. (Same shown to the Panel and returned to the witness)
MR COONON: Given the fact that it was never intended by you that this should ever appear alone in the special cases file, do you have a comment to make as to how it got there?
A I have no idea.
Q The next matter in relation to case A that I would like to move to is for you to produce a small clip of entries from the original main library file at the Brompton for the purposes of a brief exercise. (Bundle of documents distributed) These documents have been photocopied by your solicitors and are taken from the main library file which is available in the chamber. They are there simply, as it were, to demonstrate or not, as the case may be – and I would like you to talk us through them – references to the existence of a special cases file number within the main records. The numbers on the bottom of the pages in dark ink are the number within the main library file.
A Yes.
Q Have you looked at these documents yourself?
A Yes.
Q Just looking at the first one, page 36, we see a reference at the top to special case number.
A Yes.
Q On page 40 we see some writing. Whose writing is that?
A That is my writing.
Q There is a reference, with the arrow: “Hosp + S/C notes”. What does that signify?
A They are to go in both hospital and special case notes.
Q When we see that sort of apparent instruction, to whom is the instruction being given?
A Usually my secretary.
Q Page 47, again whose writing is that?
A That is mine.
Q There is reference to filing in the hospital and special cases’ notes.
A Yes.
Q It is apparently twice in the notes, so I am told. On page 61, if you look at the top right hand corner, it is somewhat cut off on the photocopy, and you will need to look at the original if necessary, do you see the top right hand corner?
A I do not think that is my writing.
Q No, but do you see a reference there?
A Yes.
Q Again, can you help us; you may have to look at the original.
A “S/C [Child A]”. I suspect it is that.
Q Do you recognise the writing?
A No.
Q Page 78, there is some writing in the top right hand corner, whose writing is that?
A That is mine.
Q It says “File” and then “[Child A]”, does it?
A Yes.
Q “[and] in hospital notes”; what does that signify to anybody who was receiving that instruction?
A Well, that particular instruction means put it in the hospital notes, the main hospital file.
Q It says “File ‘[Child A]’ [and]” – is that an “[and]”?
A Yes. I do not know whether it means and it is for that Child A, or and it is in addition to going in the other special case file, I do not know.
Q Page 102, in the middle of this document, which is in the main library, with a special case number.
A Yes.
Q Similarly on 104, 105, 106, 107, 108, 109 right through to the end to page 112?
A Yes.
Q Now, when the SC file was taken to Stoke for Child A in 1992, would any specific person at Brompton know that this file was now to be found at Stoke?
A I just cannot remember who would know. There were lots of discussions about the move. I cannot remember the details and I do not have any correspondence left about it. So somebody would have known, but I cannot say who it is and I cannot prove it because I do not have any correspondence that links it to anybody at the Brompton.
Q Now, when this file, Child A, together with all the other special cases files arrived at Stoke, who at Stoke at that time in 1992 knew that there were all these special cases files coming from Brompton?
A The managers in the child health department would know.
Q Is that the university or the hospital?
A Oh no, not the university at all, only the hospital. So the managers at Stoke, and obviously I brought the whole team with me so they knew already, but as far as the Brompton Hospital special case files are concerned, I think I got a new secretary as well as my old secretary when I came, I think I had my old secretary with me and another one already there so she would have known, and of course there were a number of patients who were continuing to be looked after, after our transfer, so if they came into hospital for treatment, then obviously the nursing staff would know.
Q When the special cases file, and in particular this file for Child A, arrived at Stoke, where was it put for storage purposes?
A Well, when we moved to Stoke we were given this Portakabin called the Academic Department of Paediatrics, which we are still in now, we are still in it, although---
Q When you say “given”, given by whom?
A The hospital. We are still in it now, although we are only in it for about two more weeks and it is going to be demolished, but we were given the whole of this, and at sometime after our arrival, and I cannot remember when, we had a special area set aside with special locks on it, codes, so you could only get into it if you had the codes; it was a special room for sensitive material, and that is where the special case files were kept.
Q Would that have included Child A’s file?
A Yes, it would.
Q Who knew about this secure area at Stoke?
A The managers, because they had to set it up, and remember, we were doing covert video surveillance, so there was lots of reasons for this at the time, so they knew all about it, that we had the special case files in this room. All the staff in the department knew. The nursing staff on the wards, senior nursing staff, who were involved in looking after our patients clinically knew, the ward managers and senior sisters.
Q Knowing about the existence of the room on the one hand, what about actually being able to gain access to the room if necessary on the other?
A The nursing staff on the ward would not be able to. The only people who could,
I think, at that time, would be Martin Samuels, myself, the clinical nurse specialist, two research fellows, two secretaries.
Q Did the Child A file, as far as you know, remain in that secure area throughout the period we will come to look at later, in other words 1992 to 2006?
A I can say that with one exception; I do not know what happened during the period
I was suspended. In fact, I am pretty sure the child protection special cases files were taken out of there for a while.
Q For what purpose?
A Well, there were enquiries going on into the child protection work---
Q You referred to that at the beginning of your evidence.
A Yes. So I think these files on child protection were probably taken. I think they were, but I cannot be sure, although there is evidence in one of them that there is some complaint material which I had not put in it, obviously.
MR COONAN: Madam, I note the time. Would that be a convenient moment?
THE CHAIRMAN: If that is convenient for you it is convenient for us. So we will take an hour, which, by that clock, is five past two. The usual warning applies about speaking about the case.
(Luncheon adjournment)
MR COONAN: Dr Southall, before the adjournment I was asking you about the location of the Child A special cases file, which is a Brompton file.
A Yes.
Q I asked you about the intervention of the inquiry, and what might or might not have happened to this file during that period, during the suspension. When you returned to work, did this file, Child A’s file, remain on the premises in the department in Stoke, or was it removed?
A I cannot remember where it was, when I first found it again, so to speak, I cannot remember where.
Q No, but did it remain there from 1992 until 2006 in the Academic Department, or was it elsewhere?
A I think some of the time it went somewhere else, I think.
Q This being a Brompton case, what happened to all the Brompton SC files?
A Oh right.
Q Did they remain in the Academic Department, or what?
A I cannot remember the date, but the Medical Director at the Trust at some point, and
I think it was mid-2000’s, so 2003, that sort of time, asked me to remove all material from the Brompton Hospital, including special cases files, tapes, any printouts that we had, from the Trust’s premises.
Q Was there a reason given for that?
A No.
Q Did you, as it were, accede to the request?
A I did object. I said that I thought these were important records that should be in the hospital, and I cannot remember the discussions but eventually I “gave in” and moved all the special case files to another place, secure place, but I absolutely refused to remove the tapes. I cannot think that there any paper records left by then, because I think they had been destroyed, but the tapes I was pretty resistant about that, because they deteriorate; if you leave them, say, in a warehouse or somewhere cold and damp, they could go off; paper, less so.
Q So where did the tapes remain following that request?
A In the Academic Department, but they are not in the secure room, the tapes, I think they are in the room next to it.
Q Were those tapes seen when Ms Ellson went to the hospital at the end of October this year?
A Yes, yes, she saw them. No, wait a minute, not on that case she did not, because we could not find the---
Q I am talking about the tapes generally.
A Oh, the tapes generally, yes, but in regard to Child A we could not find the tapes.
Q You mentioned that the SC files had been removed following a request in about 2003. Where did you remove them to?
A I am not totally keen on answering that question exactly and precisely, because it will reveal where they are. It is difficult to explain why. I did put them in a secure place, but I worry about the security of them, so if I tell you where they are, then everybody is going to know and I am not keen on that.
Q Are they still there?
A No, they are not; they are not in the hospital, no.
Q No. Are they still in the secure place that you are now describing?
A Yes, they are in the secure place, yes, but I am anxious, unless you really must
know---
Q Just pause for a moment. We are talking about the Brompton files, the special cases files.
A Yes.
Q As you speak, they are in a secure place.
A Yes, they are, yes.
Q How many SC files are there?
A Well, over a thousand, as I said earlier. I do not know exactly.
Q In respect of Child A’s SC file, was that removed by you at one stage following the request by the Trust?
A No, that never went into the secure place. I think it was still with either the complaints department or somewhere in the Trust other than in with all the rest of them.
Q I want to go back specifically to Child A’s special cases file, and we know that there were requests for disclosure of that file by Mrs A.
A Yes.
Q Could you turn up, please, C2, tab 3(b), and start at page 6. Dr Southall, I am not going to take you through the whole of this clip of correspondence, I am just going to ask you to look at the letters passing between you and Mr Chapman.
A Yes.
Q So therefore we start at page 6. Did you become aware, when you received the letter of 26 March 1995, of a request for disclosure?
A Yes.
Q I direct your attention to the first paragraph, where Mr Chapman, in rehearsing the history, and I take you to the third line, says:
“You gave consent to disclose the medical records to his solicitors in April 1991 and Norton Rose [the Trust’s solicitors] were instructed to represent the Hospital. You also wrote a medical report, a copy of which I enclose.”
Do you remember giving consent to disclosure in 1991?
A I have seen a document, I think, about it, but I do not remember it.
Q You were still at Brompton at the time.
A Yes.
Q Then over the page:
“I have been informed that you may have some records in your possession at the University of Keele relating to the treatment and care of certain children in Royal Brompton Hospital. If you have the recordings requested by the solicitors ….. in your possession, would you please send them to me.”
Now, pausing there, when you received that document, that letter, did you have a problem in acceding to a request for disclosure of those tapes, or the recordings?
A Well, only in the sense that it would be very difficult for anybody to interpret what is on them.
Q But in principle did you have any problem?
A No, no.
Q Turning to page 9, please, you now responding to that letter, you say that you:
“…looked through the records and identified 6 multichannel physiological recordings that we performed on [Child A]. These recordings involve physiological signals and because of storage, we destroy the paper version and retain only the taped version.”
Was that true?
A Yes, as best as I can recall, yes.
Q Then page 17, this is you to Mr Jacques at Norton Rose:
“I am sending by separate cover, as requested by John Chapman ….. the multi-channel tape recordings on [Child A]. I have been assured by John Chapman that Norton Rose will ensure that the recordings are kept in good order and returned to this Department in due course.”
Did you disclose the recordings at that time?
A Yes, I think I did. Again, I am not sure, I think I did.
Q Then if you move to page 18, and if I can compress this to save time, there was a request in effect for you to disclose any medical notes that you were in possession of, although specifically referable to two specific dates, but leaving that aside did you have a problem about disclosing any medical notes or medical records held in the special cases file by you at Stoke at this time?
A No, I have no problem with it, but I must say that, to be completely honest, I was concerned that the data in there might be not optimal as far as the child is concerned.
Q When you say “data” what are you referring to?
A Well, especially the child protection data; in other words, my understanding of child protection data is it relates to the child and therefore providing such data to parents is always difficult; you have got to be sure that, you know, it is appropriate. So I think, and I cannot remember exactly what happened, but I think I sent only the clinically related material, not some of the very child protection related material, to Mr Chapman.
Q Maybe running slightly ahead.
A I am sorry.
Q That is all right. Let us now look at page 22. This of course – if I just say for the Panel’s assistance – is also photocopied in the Panel’s bundle at C2, 6(a). You say to Mr Chapman, in response to Child A, that you always kept your own medical records for all the special cases that you dealt with at the Brompton Hospital:
“I have arranged for these to be photocopied and enclosed with this letter.”
Then the rest of it, I do not think, matters. The documents that follow within this tab, in fact at pages 24 through to 49. Yes?
A Yes, yes.
Q Were those documents sent to Mr Chapman?
A Yes.
Q The list that he made is at page 23.
A Yes.
Q Let us assume for present purposes the list is precisely in accordance with the clip of the records at pages 24 to 49. All right?
A Yes.
Q Let us assume that for working purposes. This clip of records here, at 24 to 49, is in effect, even in physical terms, with somewhat slimmer than the actual SC file that the Panel have in C5.
A Yes.
Q I am not going to carry out the quantitative exercise between the two but in so far as there is a difference, what is the reason for the difference when you disclose – what I am simply going to use this phrase – some of the SC files but not all of them?
A I would have to do the analysis but I think it is because the others are not strictly speaking my documents, they are social services or Family Court documents that really are different to what I have disclosed.
Q Did you make the decision to as it were photocopy and send some of them and for the others to remain behind?
A I think so. I mean I cannot be sure because it is possible it was done at the other end. In other words I could have sent all of them and Mr Chapman could have done that exercise, but I expect it was me that did that, but I cannot be sure at this stage.
Q Dr Southall, he does use the words, “List of documents sent by Professor Southall”, on page 23.
A Okay, then it was me. It was me.
Q Do you dispute that?
A No, no, no. I think it was me.
Q When you sent the list, we see on page 23, you included at item 8, which is page 37 of the clip of records that was photocopied and sent to him, a copy of the MRI report.
A Yes.
Q How did you get hold of a copy of the MRI report to send to him?
A Well it must have been in the file.
Q So the Panel follow it, would you have accessed that pink file that you have looked at this morning?
A Yes. That is what I probably would have done, yes.
Q Dr Southall, you have explained three things: firstly the creation; secondly, the transfer to Stoke; and thirdly, maintenance or maintaining the presence at Stoke in the circumstances you have described. Did you think then, and secondly, do you think now, that there was any risk to Child A by the fact that you had the SC files in Stoke?
A No risk at all to the child.
Q Can you explain to the Panel your reasoning for that.
A From the child’s point of view, once he had been discharged from our care at the Brompton, with a diagnosis of child protection concerns, he would not return to the Brompton Hospital as a patient at any time. So that clinical risk, if you like, a risk of a clinical importance, I do not think there is one. If you now turn to the child protection business, the people dealing with that were the Family Court, and the local paediatricians to wherever he was living at any specific time, and I know he did move around a bit. So information on the child protection side would have followed him around through local hospital care, if he had needed hospital care, and my understanding is he probably did not, and so therefore it was family doctor care and the family doctor would be the key person involved in any medical aspects of child protection thereafter, not me. So I do not think there was any risk on either clinical or child protection to Child A from us having a special case file on him.
Q You say that you did not think there was a risk. Is that your view now, that there was or was not any risk? Can you help the Panel.
A I do not think there is any risk, now or then. I think this was a process that I thought was reasonably appropriate for this kind of situation: difficult situation, no rules available; but I thought this was reasonable. I still do.
Q That is all I am going to ask you about Child A. I am going to adopt the same approach and take it slightly more quickly in relation to Child H. Can you please take C1 and begin at tab 2 please. Dr Southall, I am going to deal with Child H again from the standpoint of the documents and I am going to summarise your involvement with Child H up to 1991.
A Yes.
Q Although, the Panel will realise, there was later involvement by you in this case.
A Yes.
Q Again can we summarise this please. We open it at C1, tab 2, letter (a), with a letter from Dr Dinwiddie referring this child. Purely to get your bearings in a minute, I refer you to the middle paragraph, the end of that middle paragraph in handwriting:
“The question of Munchausen by proxy has also been raised”.
Did you receive this letter?
A Yes, I did.
Q Was that writing on the letter when you received it?
A Yes.
Q Again, just if there is any doubt about it, is it your writing?
A No. No.
Q The last paragraph:
“I would be very interested if you could see him and arrange the necessary further investigations and advise in any other treatment which you think might be helpful in this particular situation.”
Did you know Dr Dinwiddie at the time?
A Yes, I did.
Q Was he a friend of yours?
A We were friendly, we met at meetings. Yes. It depends how you define it, not outside work but inside work, yes.
Q With particular reference to the last paragraph, was that the sort of letter that you received either from him or from other referring paediatricians to you at the Brompton at that time?
A Yes, very similar.
Q At letter (b), we have the clerking notes. On the third page a note by, it appears to be, Dr Samuels’ signature, following his admission in 1989. We see about two lines up from his signature “rpt”, is that repeat?
A Repeat recording, yes.
Q With saturated oxygen and carbon dioxide normal. Just help us briefly with the significance of that.
A The main problem that was being raised by the parents and also, to an extent, the hospital at Great Ormond Street was: could Child H have congenital alveolar hypoventilation syndrome, or Ondines, as it is sometimes called, which means that when he went to sleep, he did not breathe deeply or adequately enough; did he have it? If he had had it, during sleep our recordings would have shown a fall in oxygen saturation, that is SAO2 would have dropped, and CO2, carbon dioxide would have gone up. That did not happen.
Q If we turn to tab ©, you will see the summary following his discharge. Do you have that?
A Yes.
Q Dr Bush’s note.
A Yes, I have that.
Q “Overnight monitoring was carried out which was normal and the plan is to readmit him when he is actually having cyanotic episodes for repeat recordings.”
Was that your plan?
A Yes. When we first saw him, we heard that he was having frequent episodes where he needed resuscitation, and yet when we had him in hospital, he did not have any. I think it was thought he might be having a good spell, so we decided to bring him back when he was in a bad time to see if we could document what was going on during these events.
Q As we know, he was readmitted. If we turn now to tab (d), 15 March 1990, another clerking note. If you look at page 9 at the bottom of that tab, the SHO has recorded, five lines up: for overnight monitoring. Again, was that the plan?
A Yes, that was the plan.
Q So we can complete this snapshot of what was going on, now turn to C2 please and go to tab (g). This is a discharge note, again by Dr Bush, if we turn to the second page, which is numbered 22 at the bottom. I am just summarising this and ask you a question on the basis of this. Dr Bush notes that he was monitored overnight, the results will be sent on to you. It is addressed to the doctors at the bottom. Follow up will be by Dr Southall’s department. Do you remember any of the treatment details of this patient, independently of what is in the records?
A No. That is – I cannot, without referring to the records. I have looked at the records so I now remember things but without the records I could not.
Q I think we should just flag up – for the Panel’s reference – the special cases file reference, which is C7, at page 72. Is this a medical report that you did in respect of, first of all, the care and treatment that you had supplied – you and your team – to this child?
A Yes, it is a summary.
Q It is dated 27 June 1991. For my purposes is the as it were – about the long stop date before the purposes of these questions.
A Yes, it is some time after the discharge.
Q It is some time after the discharge, quite right. Does that summarise the care and treatment and also summarise the concerns, such concerns as you may have had for this child?
A Yes, it does, yes.
Q At that time?
A Yes.
Q Turn to the last page of it, page 76 at the bottom, I am not going to read all this out, this being a public hearing, but I just draw your attention to the beginning of the last paragraph, indeed the whole of the content of the last paragraph. Yes?
A Yes, that is correct.
Q Obviously in due course invite the Panel to read that. Did you have in relation to this child, child protection concerns?
A I did.
Q When did those child protection concerns first arise?
A Well, on referral, there was concerns raised in Dr Dinwiddie’s letter, we have just seen that. The first admission, nothing happened in the way of an event, you know, a cyanotic event, and he had normal breathing during sleep, so that was a worry, given all the circumstances, and then when he came in the second time --
Q March 1990.
A -- there is this history that he is having frequent cyanotic episodes requiring resuscitation and yet on the night of the recording, again in the hospital, none were seen.
I think even the SHO put an exclamation mark at the end of his notes. I have just noticed it, about that because it was unusual, given the frequency with which they were supposed to be occurring.
Q I would like to come to the question of records against that background. Did you create an SC file for Child H?
A Yes.
Q Why did you create that file for him?
A Because he was one of the patients referred for sleep studies, or whatever you want to call them, to find out why he was having his multiple episodes. It was like all the other patients being referred to us from other hospitals.
Q In the SC file there are a number of cardiorespiratory chart entries, which the Panel will see from the old Appendix One. Could we look at them smartly: pages 21, 22 and 23 of the SC file. The cardiorespiratory monitoring activity for this child was filled in by whom?
A The top part would probably have been filled in by either our clinical nurse specialist or possibly technician. The bottom bit, where each event is occurring, would probably have been filled in by the nursing staff or the parents.
Q Did this go into the special cases file deliberately?
A Yes, it did.
Q Again, take it shortly, if you can. What was the underlying reason for it going in the SC file but not in the main file?
A If an event had occurred, then we would have seen the time of it and the tape counter, and looked at the tape, specifically – you would look at the whole tape, but you would look specifically at the tape counter and the time, to see what is going on with the breathing and oxygen and heart rate activity.
Q Does that apply to pages 21, 22 and 23?
A Yes.
Q Is that the same reason?
A Yes, the same reason throughout.
Q Page 24 has been described as an “apparent cardiorespiratory chart” in the old Appendix One. Is it a cardiorespiratory chart?
A It looks as if they have run out of the pages and have used ordinary hospital notepaper to do it on.
Q Would that have been placed deliberately in the SC file alone?
A Yes.
Q Then we go to pages 25-31. This is called, in Appendix One, “A collection of clinical data forum” and you have accepted that this document is not in the main library file.
A That is correct.
Q In the Brompton notes. It is only in the SC file.
A Yes, it is .
Q Should it be only in the SC file?
A The policy was that it should only be in there, but it could have been in both. There is information that could have gone into the main hospital records. The purpose for the form is to help with our clinical audit of such cases and the interpretation of the recordings. I have not a problem with somebody saying to me, “In my opinion, it should be in both.” I have no problem with that, but I think for the purposes in general of what we were doing it would be in the special case file.
Q Can we turn, please, to look at page 20. We will have to look at this in another context. This is the apparent note by Dr Samuels. I am going to ask you to produce the original from the original SC file. (Pause) Just looking at the front of it, this is the document which has at the bottom “Neuro opinion/local paediatrician”?
A Yes, it is.
Q Would you turn the page over. We may have to get it photocopied, but, for the record, does it have a heading on it?
A Yes, it has “Infant problem sheet”. This is to do with a home monitoring sheet.
Q Does Dr Samuels’ note appear to be written on a normal continuation sheet?
A No, this is not hospital paper. This is not a hospital continuation sheet at all.
MR COONON: I wonder if the Panel could be shown that document. (Same shown to the Panel and returned to the witness)
(To the witness): Would you file it back in the file, please, and perhaps you might put a yellow post-it note on it so that we can locate it again. In relation to that document, did you personally file it in special cases file?
A I have no idea.
Q Is it the sort of document, looking at it, that you would have filed in the special cases file?
A It could have been. As far as I am concerned, it is to help me write a letter. It is drafted by my registrar at the time, Martin Samuels. It is to help me write the letter. I could have thrown it away or I could have put it in the special case file. I would not have put it in the main file.
Q When you say “write the letter” to which letter are you referring?
A The letter I wrote, just after his second admission, to Dr Dinwiddie to tell him what we thought about what was going on.
Q We will look at that again in a different context. That is the letter, for the record – to help the Panel – of 22 March 1990 to Dr Dinwiddie.
A That is right.
Q Following discharge.
A Yes.
Q In relation to material in the special cases file which is not in the main bundle, that leaves about six letters. To look at these, we need to look at the special cases file, C7, beginning at page 48. This is a letter which is not in the main file. Is the handwriting on the right hand side your writing?
A Yes, it is.
Q Did you in fact direct that it should go in the special cases file?
A Yes, I did.
Q Looking at the body of the letter against the background of this child’s admission and what had been discovered, what was the reason for it going into the special cases file only?
A A decision had been made, on the discharge of that child, that this was a child protection case, so all subsequent correspondence and any social services files would go into the special case file because there was no reason to suspect that the child would come back to the Brompton Hospital.
Q Would you turn to page 53, please. This is Dr Weaver to you.
A Yes.
Q Again, this is not in the main library file at the Brompton. Looking at this letter, is that your writing in the top right-hand corner?
A No, it is not. That is Dr Samuels’.
Q The number “2026” is that your writing?
A No, I do not think so. I am not sure of that, but I do not think it is.
Q The reference to “Good” is that your writing or somebody else’s?
A Somebody else’s. It is actually Dr Samuels’.
Q What was the reason for filing this in the special cases file alone?
A The policy that I have just described is the main reason but if you look at the content there are issues here that you would not want people to be reading who did not have to need to know.
Q To what, in particular, are you referring?
A The phrase “to his mother’s pathological---
Q Just a moment. I am trying to be as sensitive as I can.
A Fine. Okay.
Q Help the Panel to focus on a particular line, please?
A It is in the third paragraph, the seventh line down. This is not the child’s clinical problem at all we are talking about now; it is a child protection issue – unproven, I think at this stage that there was a child protection problem – and you do not want people looking at this unless they have a real reason to do so.
Q On pages 55 and 56, is that your writing or somebody else’s?
A That is my writing.
Q What is the justification, in your opinion, for it being in the special cases file alone?
A Exactly the same as the previous letter: the policy, plus some of the content.
Q Could we go, please, to page 114. This is Dr Mattees to you, senior registrar to Dr Weaver. It appears to be in her handwriting, but on the top right-hand corner there is additional writing: the traditional arrow and then “SC file”. Whose writing is that?
A That is mine.
Q Were you directing, therefore, that this should go in the special cases file?
A I was.
Q This appears, as you have said, in the special cases file alone.
A It does.
Q What do you say now about it being in the special cases file alone?
A That fits with the policy on the child protection side but I think there is a good argument that it should have gone in the medical records as well.
Q Can you explain why in relation to this document?
A Because this relates to a subsequent admission of Child H to the University Hospital of Wales, where we undertook a long period of overnight monitoring recordings. Every night he was there, he was recorded, to see what his breathing pattern was.
Q Did this take place in Cardiff?
A Yes.
Q When you say “we”, were you or members of your team present?
A Yes. We provided the recording equipment to do the recordings, which were oxygen, breathing, carbon dioxide levels and skin. We analysed the data, and this was undertaken for the Family Court, because they wanted to know the results of continuous recordings at night to determine what next to do in regard to Child H’s care.
Q In the care proceedings?
A As part of care proceedings in order to decide whether he needed a tracheostomy or not, and he did not as a result of this. So you could argue this is clinical again, because I said a bit earlier this child was not going to come back to the Brompton Hospital - he did not, that is true - but we were involved subsequently in another hospital in doing the recordings, so
I think there is a good argument that this should have gone into the hospital as well as the special case file, and I accept that completely. You could say it is a mistake on my part, and
I accept it is. It could be looked at like that.
Q Thank you. Could you move on, please, to 332. This is from Dr Weaver to yourself. There are two sets of handwriting on this document, top right hand corner; is any of that in your writing?
A Yes, the usual ticks, ticks against my initials and Martin’s and Jane, the word “Good”, those are my writing.
Q Did you direct that this should go into the special cases file?
A Yes, I think I did.
Q Into the special cases file alone.
A It does not say so, but I am sure I did, and I expected it to.
Q Again, same question, please, the justification for it being in the special cases file alone?
A Exactly the same as the first set of documents; child protection policy and it contains information about child protection.
Q Now, for completeness, Dr Southall, I was dealing earlier with the cardiorespiratory monitoring charts. I should just have included the TcPCO2 charts, which is in the old Appendix One. You will find the references at pages 111 and 113. Are these documents different in nature to the cardiorespiratory monitoring charts?
A No, they are not; they are the same.
Q I deal with them because they were described differently in the old Appendix One, but they, as a matter of fact, are not in the main library file.
A No.
Q Again, the justification for that, please?
A These are to interpret the physiological recordings. They have the tape counter and the time for us to look at if there are any events.
Q Now, that is the documentation within the SCF that I seek your comment about. Therefore can we move on to deal with what happened to it. Did this SC file go to Stoke?
A Yes, it did.
Q When the department closed?
A Yes.
Q Did the tapes go as well?
A Yes.
Q Again, take this as shortly as you can, where are the tapes for Child H stored?
A Exactly the same as Child A and the rest of the special case files, in the Academic Department at Stoke.
Q Is this a set of documentation that was subject to the request at Stoke that it should be removed?
A Yes.
Q Was this SC file in fact removed to your secure storage elsewhere?
A No.
Q Where did it remain?
A I think it was in the complaints or Trust headquarters.
Q In Stoke?
A In Stoke.
Q Did you think at the time of transfer, or at any stage after transfer to Stoke, that a risk to this child might arise because of the mere fact that the SC file was now in Stoke?
A I could not think of one. I still cannot.
Q I would ask you now just to produce a very thin clips of extracts from the main library notes at the Brompton. (Documents handed)
THE CHAIRMAN: This will be D13.
MR COONAN: Do you have a copy there, Dr Southall?
A Yes, I do.
Q These are photocopies from the original library file held at the Brompton in relation to H, and do we see within these examples references to the SC number? If you look at the first page, page 12 at the bottom, an SC number reference at the top right?
A Yes, I do.
Q On page 13, it appears to be the same document from the main library file, so I jump straightaway to 14, again a document in the main library file. Do you see a reference there to the special cases number?
A Yes.
Q On the right hand side towards the top. Is this document, page 14, a proforma of some type?
A Yes. All the time we were trying to improve our documentation of how we presented our results of the recordings, so this is an improvement on previous ones, and you are just gradually trying to get better and better with it, so it is a proforma that you fill in, handwritten, obviously the filling in is, it has got the doctor to whom you are sending the report and copy to all the other consultants at the bottom.
Q Page 25 is a letter from a social worker Mrs Moeri to a firm of solicitors. This comes from the hospital main file.
A Well, Mrs Moeri is the hospital’s social worker so you would expect it to be there.
Q The writing on the right hand side, do you recognise that?
A That is my writing.
Q Did you make a reference there to “CS/” – help up with the next word.
A It says, “File S/C + [hospital] notes”, is that what you mean?
Q Yes, that is it. Again, obviously it is self-evident. Finally, can I deal with the question of the request for disclosure of the records held at Stoke. You need to turn up, please, bundle C2, tab (l), at page 11. This is Mr Chapman writing to you in July 1994.
A Yes, it is.
Q I am going to take straightaway to right at the end of the letter:
“I write to ask therefore that if you possess a file within the Academic Department of Paediatrics in the North Staffordshire ….. with such correspondence would you please send it to me as soon as possible”.
Mr Chapman was referring to the correspondence there in the earlier part of that paragraph, in other words correspondence with Mid Glamorgan County Council. Now, the question is simply this: Mr Chapman has told the Panel that he did not have disclosure from you of any material from you while you were in Stoke. First of all, do you accept that that is the position?
A Yes.
Q Can you recall now what, if any, circumstances influenced your decision, if any, can you recall now the circumstances which prevailed at that time?
A Well, I do not think there is any reason why I would not have disclosed just as I did with Child A. That is the first point. I cannot remember receiving the letter, but I could have done, in which case I would have been expected to reply. The only thing I would say that
I do recall is that this is 1 July 1994, when I was working in Bosnia a lot of the time, and there was supposed to be a locum working at the hospital covering half my work. So it is possible at this time that this letter was not adequately dealt with by my department, and, if so, then I apologise because it is my responsibility, but I was away half the time. As I said,
I would have responded just as I did with
Child A.
Q Did you have any chaser from Mr Chapman that you could discover about this topic?
A I do not think so.
Q There is not one before us, but I just ask you formally.
A Well, I cannot recall.
Q Mr Chapman has not produced one. Do you recall a chaser of any sort?
A I do not recall it.
Q So globally, if I can complete this topic in this way, did you have any problem with disclosing the SC material first of all to Mr Chapman, or to solicitors acting on behalf of Mrs H?
A No, except I have to return to Child A, where I selectively disclosed; I would not disclose social services material.
Q That is all I ask you about Child H in this context, Dr Southall. Thank you for that.
I just want to now move on to a number of general questions about Stoke before we look at the two Stoke children. I am just going to ask you, first of all, a number of general questions about the computer. You have told the Panel that the computer from the Brompton came up to Stoke.
A Yes.
Q Where was it put?
A In the Academic Department.
Q When you got to Stoke was there a computer provided for you, or provided by anybody else, in addition to the old Brompton computer?
A I think my secretary had a computer from the hospital, but to do with this material, no, not that I can recall at the beginning anyway.
Q Did there come a time when another computer was supplied in the department?
A Yes. I cannot tell you when, but I think what happened was we were on Macintosh operating system computer at the Brompton, and when we came to Stoke, sometime afterwards, we transferred to Windows system provided by the hospital, and the Filemaker database was made available as well so we could transfer the data from Macintosh to Windows machine.
Q The Windows machine which was supplied to you by the Trust, whenever that was, did that remain the operating computer in the department throughout the whole of the period up to 2006?
A Well, in 1999, when I was suspended, all work stopped, because it was not just me, it was Dr Samuels as well was suspended, we were both suspended, so all of our department’s work came to a halt. The computer went away to be looked at. When we were both reinstated, the computer came back, but the special case file system that we had, stopped; we did not collect any special cases after our suspension. I know that Dr Samuels is continuing to do lots of sleep study work, but he has a separate and different system now.
Q Leaving aside Dr Samuels for the moment, I just want to focus on the computer or computers that were supplied by the Trust. Who had access at least to the first computer supplied by the Trust?
A From the Trust? Well, there was our team in the Academic Department – secretary, nurse specialist, Martin Samuels and myself – and the computer department as well, they had it, they had access.
Q Was there a password for the computer?
A There were two, one for the patient data files and one for the recording result files.
Q Has that password remained the same from 1992 approximately to 2006?
A No. This is what caused quite a bit of difficulty, because when the computer came back after the suspension we did not use it, because we were not doing what we were doing before. Then when my solicitor asked for us to obtain records, I tried to access the computer, and both Martin Samuels and I could not get into the computer. We went back to the IM&T Department to try and find out what had happened, and after some time they came back with different passwords. Now, they were the same passwords but with two numbers put in front, and, as you know, with passwords if you do not get it right, you do not get it right. Then we were able to access it.
Q Again my global question is this: was there any question of any clinician who needed to access any data held on the computer at Stoke having a problem at any stage?
A No, because we were on call all the time, one of us, and we had access to the special case files through a ledger system. That is, we had a ledger, A to Z, and we had a ledger,
I think, 1 to 3,000 whatever it was, and we – you could find the special case file that way, or you could go on to the computer and put in the name and hope it would – it should work and produce either the number or whatever, so it was available all the time.
Q Dr Southall, I am going to leave computers and I am going to deal with C10 separately but I just want to ask you this, did you continue to create special cases files at Stoke for Stoke patients?
A Yes.
Q Did you adopt the same policy approach to the creation and continuation of special cases files that you had done at the Brompton?
A Yes.
MR COONAN: Were there any meaningful differences in the policy approach?
A Not that I can think of, no.
THE CHAIRMAN: Mr Coonan, if you were going to move on to a different topic, would that be a good time for a break?
MR COONAN: Madam, if I could just highlight one short paragraph, that would bring us to the end naturally of this topic.
THE CHAIRMAN: Thank you.
MR COONAN: I am grateful. (To the witness) Could you just turn please to C2, tab 6, and go to page 13. C2, section 6©. This is Hempson’s letter again, Dr Southall.
A Yes. Yes.
Q If you go to page 13 of the clip, you will see the large paragraph there beginning “The Special Case papers”.
A Yes.
Q If you just cast your eye down it shortly, does that paragraph relate to the position at Stoke? (Pause)
A Yes.
Q Is that accurate?
A Yes.
MR COONAN: Thank you very much.
Madam, that completes that part.
THE CHAIRMAN: Thank you, Mr Coonan.
Perhaps we can take twenty minutes. Can I indicate that we hoped that we would rise not late today, should I say, quarter to five ish, if possible, or as soon thereafter as you reach a suitable break point.
MR COONAN: Thank you very much.
THE CHAIRMAN: Thank you.
MR COONAN: Dr Southall has the usual warning, I am sure, ringing in his ears.
THE CHAIRMAN: For the record, I am sure he is aware of it and you are aware.
A I am aware.
(The Panel adjourned for a short while)
MR COONAN: Thank you, madam.
Dr Southall, can we now turn to the two Stoke cases. First of all, Child B. Again, adopting the same approach, can we just look at the background to your clinical involvement with Child B. If you take C2, at section 5, and just start at tab (a) please. Again I am just going to summarise this and for you to make such comment as you think appropriate. The story starts with Dr Issler, a consultant paediatrician at Greenwich, to Dr Lewis at Crawley. The nature of the problem is summarised in the third paragraph on page 27, is that right?
A Yes.
Q Then, over the page, in the middle of the main paragraph, and I draw attention to the eighth line down of that main paragraph, to a reference to the experienced nurses sharing anxieties and I invite attention to the whole of that sentence.
A Yes.
Q Culminating, in this letter, with the last four or five lines of that paragraph, where Dr Issler states that there are severe reservations about the history. I take it no further. I invite the Panel’s attention to the rest of those words.
Do you have any memory of any clinical involvement yourself with this child?
A Yes, I do.
Q If we turn to tab (b)(i), is that a discharge summary from Crawley?
A Yes, it is.
Q May I take you to the bottom paragraph on page 8. Then we come to the main entries, done, I suspect, in relation to this child, which is the document at (ii). Can we skip that for the minute, just noting it in passing, I will come back to it, and move on to the clinical notes, at ©(i). Are these the admission notes for this child’s admission to Stoke?
A Yes, they are.
Q Dated 1 September ‘93 and following?
A Yes, yes.
Q In passing, is there any of your writing in this document, in this tab, I should say?
A No, there is not.
Q You move through to (iii), same tab, tab © at (iii), is that your signature on the bottom left hand corner?
A Yes, it is.
Q What is this document?
A It looks like a computer generated document, summarising the recording results of Child B.
Q When you say recordings, just for clarity, do you mean physiological recordings?
A Yes I do, yes.
Q Was that generated by a computer in Stoke?
A Yes.
Q You noted your clinical impression, Munchausen’s syndrome by proxy?
A Yes.
Q At tab (v), is there a medical report, is it written by you?
A Yes, it is.
Q If you turn to the last of the three pages, there is no signature or date.
A No.
Q My question was based on the first line of the report itself.
A Yes, on the side.
Q Is that a summary of your clinical impression of this child during her admission?
A Yes, it is.
Q Which was in September, as you have told us. Then, at tab (d), a letter from Dr Lewis at Crawley to you.
A Yes, it is.
Q In October. A reply from you to him at (e), which I will come back to in another context. That will do for my purposes. I have just taken you really on a short sort of Cook’s tour of the material. What was the purpose of creating a special cases file in her case?
A Because she was admitted from another hospital for multi channel physiological recordings, to try and determine a cause of her alleged apnoeic episodes.
Q Did you find a physiological cause?
A No, the recordings were all normal.
Q So therefore, just in the light of your answer, I just deal please with the three documents. The first is cardiorespiratory charts. For these purposes, the Panel will able to see the reference to them in the old Appendix One, which you should there, Dr Southall. Cardiorespiratory charts, various dates between 3 September 1993 and 13 September 1993, and, in the SC file, pages 13 to 27. If you have the SC file, which is C5, if you turn to page 13, in tab (b), do you have that?
A I do, yes.
Q Tab (b). Has all the Panel have the correct record? I am looking at a cardiorespiratory monitoring activity chart. Pages 13 to 27. I am going to take this compendiously, Dr Southall. These are cardiorespiratory monitoring activity charts. These documents are in the SC file.
A Yes.
Q But not in the main notes.
A No.
Q Held at Stoke this time.
A No.
Q Do you accept that?
A Yes, I do.
Q Were these documents dated the 27th, were they deliberately placed in the SC file at Stoke?
A Yes, they were.
Q Just pause a moment. The reason for that?
A The same as before, these are activity charts for any events that might occur in the child during the recording, so you could check the date, the time or the tape counter against the recording.
Q This is 1993.
A Yes.
Q Were you still using tapes to do this recording?
A Yes. Around that time we changed from reel to reel to VHS tape, same principle, but different format.
Q There is one letter I would ask you about please, if you would turn to page 31. The letter of 17 September, page 31 please. This is in fact a letter addressed, you will see this, to Dr Lewis.
A Yes.
Q Where did that come from?
A The computer.
Q This letter is only in the special cases file and not in the main records.
A Yes.
Q What is your view about that location?
A It should be in both.
Q Can you shed any light as to why it is not?
A No.
Q Did you direct it to go solely in the special cases file?
A No.
Q I turn, again, please, to the third document and the last document that was the subject of inquiry: C2, tab 5(b)(ii) – which, for shorthand, I am going to call “the Crawley letter”. This is a document, copied in C2 in that form, that is also in the special cases file, copied in that form, at pages 33 and 34. I am going to ask you to look at the special cases file version rather than the one in C2. I hope you are not confused by that, but it has been photocopied for the purpose of this hearing and it appears in both bundles.
A I have it in both.
Q Would you work off the special cases file, please. Pages 33 and 34 are two pages of text and page 35 appears to be a fax header sheet with fax timings on the top.
A Yes.
Q Similarly, on page 36, there are fax timings.
A Yes.
MR COONON: Perhaps I could ask the Panel, through the Chairman, whether the fax header timings have come out on your copies.
THE CHAIRMAN: On my copy I can see that there is a header but it is half cut off, so I cannot read it.
MR COONON: I am going to ask you to produce from the original SC file the original documentation as it appears at the present. (Original special case file handed to the witness) Dr Southall, may I take this step by step. In that buff colour folder which you have just been handed, is there a series of loose documents?
A Yes.
Q That appears to be the special cases file in its original form.
A Yes, it is.
Q Many of the documents have yellow Post-it stickers on.
A Yes.
Q Did you put those on?
A No.
Q I will invite the Panel in due course to look at those. Are they yellow stickers with “No” or some other comment on them?
A They have “SC” there, then there is “No” on this one and “No” on that one.
Q Is any of that writing on the yellow stickers yours?
A I do not think so, no. I cannot be one hundred per cent sure, but I am pretty sure it is not mine. It is only two letters, so it is difficult, but it does not look like my writing.
Q I want to focus on the Crawley material. Would you take out the Crawley fax that is there and hold it up, please? (Holding up bundle of documents) Is there a clip of material stapled together?
A Yes.
Q Is there a header sheet?
A Yes. The front sheet is the header sheet.
Q Look now at pages 34, 35 and so forth. Has the fax front sheet been photocopied by Field Fisher Waterhouse?
A No.
Q What does the fax front sheet say?
A It has “Crawley Horsham Health Service” at the top and their address and then “Fax”.
“To: Academic Department of Paediatrics North Staffordshire Hospital Centre.
Fax No:
For the attention of: Dr Milner, Registrar to Professor Southall.
Date: 3 September 1993.
From: Dr N T Khine Associate Specialist.
Total No of pages including this page: 2.”
Then there are some handwritten notes by myself, which say, after an arrow, go to: “hospital notes on ward 112 ASAP.”
At the bottom it has: “Where people matter” and “NHS Trust” on it.
Q In so far as that is your handwriting, what does that handwriting signify?
A That I wanted this faxed referral letter to go to ward 112, which is the children’s ward, where the patient was, into the hospital notes as soon as possible – because it was late. The fax was arriving late, as you can see from the letter.
Q We will come to that in a minute. Apart from the facing sheet, the header sheet, is there a date and fax time at the top?
A Yes, there is. “September 03 93: 12.54p.”
Q Following that, are there, in fax form, the two sheets that we see at pages 33 to 34?
A No, not immediately. There is a bit later.
Q Are there other apparently faxed sheets? The Panel can look at this for themselves, but I will just seek your assistance. Is there the same or a different fax time and/or date on the other correspondence?
A The first letter that comes immediately following the header is from Atkinson Morley’s Hospital. It is also faxed from Crawley Hospital; it is on this patient; and it is the same time and date. Then there is a transaction report which is the same, although a slightly later time: 12.56. Then there is the letter that is in the special cases file at page 33, which is different date and time: “02.93: 4.29p”. Over the page: “02.93: 4.30p”. Then there is another letter to Dr Hyatt from Dr Khine: “02.93: 4.33p”. The next is: “02.93: 4.34p”. A letter to Dr Lewis about the same patient, “02.92: 4.32p”.
Q All that has been stapled together.
A Yes.
Q Did you staple all that together?
A I have no idea.
Q Would you have wished what I call “the Crawley letter” of 2 September 1993 to have gone solely into the special cases file?
A No. It is crystal clear: I was expecting this to go in the hospital notes on ward 112, where the patient was. That is what it says in my handwriting.
Q Would you now turn to C2, tab 5(e). It has page 138 at the bottom. It is a letter from you – we see your name on the second page – to Dr Lewis at Crawley, 14 October 1993.
A Yes.
Q I am going to take you to the second line of the first paragraph on page 138.
“In discussions with her it was clear that there were so many different consultant paediatricians involved in [B]’s case that she arranged to invite Dr Issler because hers was the only letter that we had available in our hospital records. [B] was admitted under my care without a referral letter. In fact, a referral letter did not arrive until sometime after admission as a fax which did not find its way into the notes until much later. I personally was unaware…”
and you go on to deal with other matters. Dr Southall, in so far as you are able, can you shed any light as to how it comes about that this fax – which you would have intended and, indeed, you say in crystal clear terms should have gone on the hospital records – ends up in the wrong file?
A I suspect, but I cannot say more than that, that it was in the right file. With the hospital inquiry – which you can see in the same special cases file at the beginning – I suspect somebody has just moved it from the hospital file to the special cases file by mistake. That is my suspicion. I cannot be sure though.
Q You have mentioned other material in the special cases file in the context of the inquiry. The first page of tab B of the SC file is rather faint. Dr Southall, would you read into the record what it says, please.
A Yes.
“COMPLAINT FILE. HAND DELIVERED TO DIVISION BY ANITA SMITH”
and then Child B’s name.
Q Over the page, at page 1:
“31/8/04 – re [B]: expert witness file removed by Nicole Dale, Clinical Risk Dept, NSRI … to Medico-Legal Department (Pauline Crossley).”
Then there is a series of documents from pages 2 to 9 in our bundle. Looking at it compendiously, what is that material, Dr Southall?
A It is complaint material, requesting access to the various records.
Q Should that be in the special cases?
A No.
Q Did you put it there?
A No, I did not.
Q Do you know who did?
A I can suspect but I do not know.
Q Before we leave the observations on this, perhaps you could offer those pages to the Panel so they can see that. (Same handed to the Panel) Could I also hand out the last photocopies of the material which is now coming out of the file for the Panel. (Documents distributed)
THE CHAIRMAN: The photocopies that have been circulated there will become D14.
(Long pause while the Panel studied the file of original documents)
MR COONAN: Madam, as you can see, the photocopying of the original fax has been a little poor, but I hope the Panel is satisfied having seen the documents.
(To the witness) Dr Southall, could I just bring this Child B in this context to a close, and I have a couple of questions, please. This particular file, SC file, I asked you about the tapes, where was the file stored?
A In the secure room.
Q In the department?
A In the Academic Department.
Q Has that remained in that location since 1993?
A I can only say up to 99, when the suspension occurred, and then afterwards I think they were all returned.
Q Returned, what, to you personally, or just returned to the department?
A Well, actually I am not sure, I have to say. The special case files remained in the secure room, but I think selected examples were taken away, the child protection ones for the inquiry. I am not sure whether this one came back or has always remained in the complaints department, the Trust headquarters, I am not sure about that. I just do not know.
Q Now, just answer this question: on the assumption that the Crawley letter was in the main medical notes, as you say to the Panel it should have been, on that assumption was there any risk to this child at any stage by virtue of the mere fact that a special case file existed?
A No, not in my view, no.
MR COONAN: Yes. Thank you. Madam, that might be a convenient moment in the light of the fact that I have completed Child B. If I were to start on Child E I would definitely run over your indication, and I would suggest that I should deal with it all at once.
THE CHAIRMAN: That sounds like a good suggestion, I think, given the time. I see Mr Tyson is rising.
MR TYSON: Madam, I wholly concur with my learned friend’s course. Can I just make two observations at this point. Firstly, I would like to take away, and I do not know whether it is formally within the hands of the witness, the original SC file, and if it is formally within the hands of the witness, can I take it away from the witness desk – just a technical matter;
I do not want to take any document away that is within the Panel’s jurisdiction---
MR COONAN: I have no objection at all. I think I agree with my learned friend, I think it is really for the Panel to say whether that should happen.
MR TYSON: I have asked to do that. The second observation I make is that if my learned friend is saying that there has been incorrect copying in C5 and documents are missing from C5 that ought to be in C5, I merely make the observation that everyone has had C5 since January 2005 and we happen to be told in November 2006, late on a Friday afternoon, that we have incorrectly failed to put in documents in C5. My learned friend has produced, as it were, a mini Perry Mason moment, which I rather resent, because had we been told that we have not photocopied everything in C5 that is in the SC file, then of course we would have put it right.
MR COONAN: I am sorry, I do object to that. The original bundle was handed to us by Ms Ellson several days away. We received it a few days away in the form in which it appears now. All we have done is look at it and found that there is an omission, and I am entitled to deal with it in whichever way I feel.
MR TYSON: I do not want to squabble too much, but they have had our version of the SC file sent to them over a year ago.
MR COONAN: I do not want just to have the last word, but until we have the original we cannot compare what we have been given until we have the original, and we only got the originals a few days ago, and then we realised there is an omission. The fact is there is an omission. That is the only point I am making.
MR TYSON: I will try and have the last word because the originals were in the custody and control of my learned friend’s team rather than mine.
THE CHAIRMAN: Mr Tyson, when you saw you want to take, you mean you want to take it from---
MR TYSON: I want to take it from this room and examine it and take instructions upon it, because it is asserted by my learned friend that there are documents in there that have not been appropriately photocopied, and I want to examine precisely the fax, the fax headed numbers, the fax headed pages, and the like, and take instructions upon it from my instructing solicitors. I will give whatever undertaking is required to take all due care of this original file and will give that undertaking to the Panel, and that I will not destroy or take out or remove any of the original documents in it, but I want to examine it with some care.
THE CHAIRMAN: Is there any reason or objection as to why Mr Tyson should not do this?
THE LEGAL ASSESSOR: Well, madam, as long as Mr Tyson undertakes to keep them in what has been described as a secure place, I am sure there can be no objection at all.
MR TYSON: If the back of my Audi is described as a secure place, that is where they will be for the next three hours.
MR COONAN: Just to make it clear, of course I have absolutely no objection to Mr Tyson having a look at them, and I would request the same if I were in his position, so I have no objection at all.
THE CHAIRMAN: I take it that the Panel concurs with this view, as long as there is no other reason that we are not aware of. It seems there is not, otherwise I am sure someone would have spoken.
MR TYSON: I am grateful for the Panel’s indulgence.
THE CHAIRMAN: So if that is the last matter for today we will adjourn now until nine-thirty on Monday morning. Dr Southall, I am afraid you remain on oath over the weekend, so you may not discuss your evidence or the case with anyone at all.
(The Panel adjourned until 9.30 on Monday, 27 November 2006)