GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)
Tuesday 28 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 TWELVE)
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
DAVID PATRICK SOUTHALL
Examined by MR COONAN, Continued 1
PROCEEDINGS IN PRIVATE (See separate transcript) 8
Cross-examined by MR TYSON 38
THE CHAIRMAN: Good morning everybody.
DAVID PATRICK SOUTHALL
Examined by MR COONAN, Continued
MR COONAN: Dr Southall, I am now going to deal with matters involving Mrs M, and to assist the Panel these matters relate to Heads 3, 4, 5 and 6 of the Notice of Hearing. These matters relate to you in your capacity as an expert witness, do they not?
A Yes.
Q The events that immediately detain us occurred in April of 1998. By that stage, had you acted as an expert witness in child protection matters prior to that?
A I had done a lot of work on that, yes.
Q More particularly, had you been instructed previously by social services departments?
A Mostly by social services, yes.
Q Are we talking about local social services – that is, local to the hospital – or social services departments around the country?
A National.
Q Which other bodies or agencies had instructed you in child protection matters prior to that?
A The Guardian ad Litem had; the police had and defence. In a small number of cases defence barristers, solicitors.
Q In what type of cases?
A Criminal cases.
Q Can I ask you please to have open Bundle C1? I think all the documents we need to look at are in fact in C1. The first document I would like you to look at is at Tab (a), and this is a letter from Francine Salem. Did you know her at that time?
A At the time of this letter, no. I think I first met her after this letter.
Q She addressed you as, “Dear David”, that is the reason I ask. We see in the first line,
“Further to our telephone conversation today”.
A There must have been a telephone conversation.
Q I just want to ask you, a personal relationship or a relationship based on previous encounters? What do you say to that?
A No previous encounters that I can recall, and the only encounter probably is the telephone conversation.
Q If you keep one hand on that, and at the same time look at the telephone reference, which you will find at Tab (v) at page 95. There is a reference which, if you look at the left hand column you will see 23 January 1998.
A Yes.
Q You see on the second line,
“Telephone call to Professor David Southall at North Staffs Hospital and gave him a brief summary of involvement and concerns”.
A Yes.
Q The writer goes on,
“David Southall shared my anxieties and felt that I was right in my suspicions that this may be PI illness. He believed that we had a ‘major’ c.protection issue here and suggested that we needed him ‘on-board’.
Agreed that I would send him a copy of the ‘key documents’ and he would do a preliminary report as a matter of urgency”.
Do you think, Dr Southall, that that reference in the social services’ log relates to the telephone conversation in Tab (a) that I was referring to?
A Yes, I think it does.
Q Let us go back to that letter of 23 January, in Tab (a). Did you receive copies of the information summaries on that page?
A Yes.
Q I would like to identify that material as best we can. Can you turn over to Tab (b)? Did you receive this document from Francine Salem in that letter?
A Yes.
Q Described as an “interim initial assessment report”, and back to the letter, a report prepared for the strategy meeting to be held on 26 January.
A Yes.
Q Did you read that interim assessment report?
A Yes, I did.
Q I want to take you, for my purposes, to the last page of that letter – page 358 at the bottom. This appears to be her opinion at that stage,
“I believe, also, that we cannot rule out the possibility of M2 being the victim of parent induced illnesses which would in turn place large question marks over M1’s experiences and ultimately his death”.
A Yes.
Q Did you absorb the opinion being expressed by that senior social worker?
A I did.
Q Just moving through that tab, Tab (b), starting from the assessment by Francine Salem, was there a document headed, “Background information from Mrs M’s police statement” from 359 to 360?
A Yes.
Q Did you receive that at that time?
A Yes.
Q Then two documents, the first at 361, which is – my description – a series of dates and descriptions of injuries to M2.
A Yes.
Q At page 362 a series of dates and injuries to child M1.
A Yes.
Q Did you receive those documents?
A I did.
Q Then we go on please to (g). I am referring now to the third category of document that Francine Salem sent to you. In a letter she calls this the “Part 8 review and witness statements”. I am picking this up at Tab (g) through to Tab (l). There are a series of witness statements, police witness statements from various people. Did you receive those?
A I think so. In order to be certain absolutely, if one refers to my preliminary report I usually list the documents that I receive.
Q It may be at some stage you receive them. I just want to try and deal with it in this way first. She appears to refer to the witness statements in the letter. Here we have some witness statements and I just wondered whether you could remember receiving them at that time.
A I think I did. I am not 100 per cent certain.
Q If you had received them, would you have read them?
A Yes.
Q If we just go back in the bundle, did you receive a copy of a magazine interview which you will find at C1?
A Yes.
Q Can I just take you to the bottom of the third column where there is a quote from a detective sergeant. It has got page 377 at the bottom of the page. (Pause for reading) The bottom of the third column, top of the fourth, did you absorb those apparently reported comments by the detective sergeant?
A Yes.
Q You were also sent apparently – one goes back to Tab (a) – from Francine Salem social services contact sheets which are extracts from the log which had run up to date.
A Yes.
Q Just to complete the material section of this, did you, on 27 January, receive a fax – turn to Tab (n) please. Did you receive that document?
A Yes.
Q It is difficult to read but can I just start by asking you, who did you understand Anne Gray to be?
A She is, was the director of nursing at the hospital in Oswestry. I did know her because she had been married to the chief executive, a previous chief executive at North Staffs Hospital.
Q Did she enclose with the fax the documents that follow in that tab, which is headed, “Confidential file note”, consisting, first of all, of two pages?
A Yes.
Q Then what appears to be a photocopy with highlighted markings and writing on the right hand column. Let me just ask you about the photocopy with the writing on it, is that writing yours?
A Yes, it is.
Q We can see what lies underneath the highlighted areas just by referring back to the clean copy within the tab. Is that right?
A Yes.
Q What were you doing in relation to the numbering in the right hand column?
A Those are the ages of various incidents.
Q The ages of the child?
A Yes.
Q We see at the top right-hand corner a reference to M1’s death and the date. Did you write that?
A Yes, I did.
Q I am going to just draw your attention, please, to the clean copy so we can follow it. Does Ann Gray set out her involvement with those who were immediately concerned with Mrs M’s employment?
A Yes.
Q At the hospital in question?
A Yes.
Q I just draw your attention to the last entry on page 2 which brings matters from a historical standpoint almost up to date as of the 27th, which is the date of the fax.
“Monday 26th strategy meeting to discuss the welfare of M2”,
so there is a reference there to what took place at the strategy meeting. I should just ask you this at this stage: Did you attend the strategy meeting on the 26th?
A No.
Q At the time of the strategy meeting on the 26th had you by then compiled a written report on any basis?
A I certainly did write a preliminary, very preliminary report.
Q We will come to that, but can you remember writing it before the strategy meeting took place?
A I cannot remember.
Q As I say, we will come to it.
MR TYSON: There is no dispute.
MR COONAN: We will come to that in a minute, as I say, but just to complete the historical stepping stones, we have the fax at tab (n) from Ann Gray on the 27th, and can we look now, going back to tab (v), the log, at page 95, at the bottom. Do you see the date, Dr Southall?
A Yes.
Q At the bottom left-hand corner:
“T/C [telephone call] to Ann Gray to ask her to contact the Dr at A&E …”,
and the second entry:
“T/C [telephone call] from Ann Gray who had spoken to David Southall – he has not yet received the info which we sent on Friday, but will attend Thursday’s meeting. Expressed his opinion to Ann Gray that we should be removing [M2] from home, Agreed to fax more info to him”.
Then the next entry:
“T/C [telephone call] to David Southall’s secretary, she informed me that my documents had arrived with him. Agreed to fax minutes of strategy meeting to him today”,
and then it says, “Info faxed.” Does that appear to tie in with the fax from Ann Gray at tab (n)?
A Yes.
Q You had not attended the strategy meeting at that stage – this is the 26th – and clearly round about that time, certainly by the 27th, you had received the documentation that was purportedly sent, on the face, of it by Francine Salem in that letter?
A Yes.
Q What was your overall view on the basis of the information that you had been privy to by that stage?
A I was worried about M2.
Q Can you list really for the Panel, first of all, the concerns you had and why you had the concerns even at that stage?
A Firstly, M1 had died a violent death at a young age, very unusual. There were reported now concerns that M2 at about the same age as M1’s death was allegedly reporting suicidal feelings. I had been told about many injuries to both children. I cannot remember at this stage whether I had been told about the domestic violence problem because that is a very serious background issue. I had been told that mum worked in an operating theatre as a nurse assistant, health assistant, and that she had been having a lot of time off work because of stress related to, I think, problems with her husband. So all of this was very worrying with regard to the safety of M2.
Q Were social services worried at that stage about M2?
A I think they were very worried. There was even I think, if I remember, somewhere a statement that the police did not want to wait for the strategy meeting, they wanted to take out an immediate emergency protection order.
Q Let us now just begin to move through the next stages. On 27th, and let us now look at tab (v) and look at page 96 at the bottom. The date for this we have picked up already from page 95, and we are now looking at page 96, and after the reference to Ann Gray that we looked at a minute ago at the top of the page, I am going to take you half-way down. It is the same day, the 27th.
A Yes.
Q
“T/C [telephone call] from Professor Southall who reiterated his concern for [M2’s] welfare.”
Pausing there, do you accept that you were reiterating your concern for M2’s welfare?
A Yes.
Q Then:
“Arranged for myself and Clive Bartley to visit him [that is you] tomorrow to discuss the case further.”
Then there are other telephone calls which I am going to leave for the moment because they do not directly concern you. Then we move on to the 28th at the bottom of page 96. I take you to the fourth line on the 28th:
“Clive Bartley & myself visited Pr Southall at North Staffs hospital to discuss this case now that he has the full info.”
Pause there. This is the 28th. Do you accept that you had all the documentation now referred to in the letter of 23 January?
A Yes.
Q Then:
“Having considered all the info available he is still of the opinion that mother has a muchausen syndrome & that this will lead to [M2] being at serious risk of harm from her. Advised us that we should remove [M2] at once having him medically examined at once and also memorandum interviewed immediately. He spoke with Arnold Bentovin – child psych who was of the same opinion & agreed to see [M2] once he had got him.”
Then, over the page:
“Prfr Southall wanted to see the medical records of the whole family …”.
THE CHAIRMAN: Mr Coonan, I know it is hard to do, but you did just mention the name. I do not know if there is a member of the press in the gallery. Can I just issue the warning to the press that no names inadvertently mentioned should be reported.
MR COONAN: Yes. I am sorry, I was wholly unaware I had done it.
THE CHAIRMAN: It is very easily done.
MR COONAN: I am sorry about that.
(To the witness) Can we just break that down? Do you accept that Francine Salem and Clive Bartley from social services came to visit you?
A Yes, they did.
Q Did you have a contact with Dr Bentovin?
A Yes, by telephone.
Q There is a reference to who Dr Bentovin is. Can you just help a little bit more? Is he a child psychiatrist?
A Yes, he is a child psychiatrist at Great Ormond Street who had a lot of experience in Muchausen’s syndrome by proxy cases and other aspects of child protection.
Q How did you contact Dr Bentovin?
A I telephoned.
Q Did you telephone him before the Salem/Bartley visit, or during the visit or after the visit? Do you remember?
A I cannot remember.
Q Did you give Dr Bentovin all the information that you had?
A Yes.
Q Did you relay to him the concerns of social services of which you were aware?
A Yes.
Q Did you relay to him your concerns?
A Yes.
Q Did he express any view?
A His view, if I remember rightly, was that the death by hanging at 10 years of age was very unusual. It did happen, but extremely rarely. He was concerned about the history I had given him about the injuries. Also, I still cannot remember whether by then I knew about the domestic violence, but I think I did.
Q This is in a public hearing. I want to proceed appropriately as possible. Who made you aware of domestic violence matters?
A I think the social workers.
Q Are you willing to give the Panel the information about that?
A It is like yesterday really. Personally, I do not think it should be in public.
THE CHAIRMAN: Perhaps it would make sense to go into private session for a short time so that Dr Southall can answer this question.
MR COONAN: Madam, I am in your hands.
THE CHAIRMAN: I just look to the Panel. I see members of the Panel who would like to do that, so I think that we will resolve to go into private session so that Dr Southall can answer this question clearly.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE HEARING CONTINUED IN PRIVATE
(See separate transcript for proceedings in private)
STRANGERS HAVING BEEN READMITTED
THE CHAIRMAN: You can continue now, Mr Coonan.
MR COONAN: Dr Southall, we have covered the period up to and including 28 January culminating in the visit to social services to you.
A Yes.
Q And the telephone call to Dr Bentovin. The next day - and it is a matter of record - the EPO, the emergency protection order, was granted by the local court. Just to assist you to get your bearings, can I take you to two references? The first one is firstly in the contact sheet at page 97 at tab v. I just pick up the text three lines above the date of the 29th. Do you see that?
A Yes.
Q It reads,
“An EPO today [that is the 28th] was considered, but no appropriate placement was available and it would appear that Mrs M is not aware of our concerns relating to MSPB”.
Just pausing there, was that your understanding as well that she was unaware of concerns relating to MSPB?
A I do not know. I just cannot answer that because I was not involved in those actions.
Q Are you surprised that it appears that she was unaware of matters up to that stage?
A No, not surprised.
Q The next day, on the 29th, social services attended the magistrate’s court in the town there described. An EPO is granted following their application. Following that, the next line appears to make clear that the police were contacted by social services in order to effect the execution of the EPO. Is that right?
A Yes, that is right.
Q Is that standard procedure, as far you know?
A I am not sure about how much the police are involved. Just so the Panel can find it, if you just move on to tab (q), you see the formal court record of the grant of the EPO dated 29 January.
A Yes.
Q I simply point that out. Turning to matters of greater substance now, please. You mentioned to the Panel that you had written a preliminary report.
A Yes.
Q If you turn to tab S, you will see a covering letter from you to Francine Salem.
A Yes.
Q It is dated 30 January. It reads,
“Following a telephone conversation with your team manager today, I enclose a very preliminary report on my involvement with this family. We discussed additional information that I would require in order make a for more complete assessment.”
We will look at the report in a minute. What additional information do you recall that you were seeking at that stage?
A I think I wanted to know more about the medical history of the children and of the parents, and I think also additional information about M1’s death and investigations that have been carried out into it.
Q Let us go straight away to the report itself, which is at tab (t). The report is headed “Preliminary report”. If you go to the last page of it, page 184, we see your signature and the date, 2 February 1998. Can I just ask you about the date on the document and the date on the covering letter? Do you have any comment you want to make about that?
A No, I do not.
Q Going back to the first page of the report, right at the bottom you say,
“I have examined the following documents in order to make this very preliminary report.”
I just want to ask you about your description in those terms: “very preliminary”. Is there anything significant about the use of those words?
A Yes, I had to produce this in a hurry. I had limited information and, therefore, I did not want to say things which later would be shown by other data not to be absolutely correct.
Q There are just a number of features of this document I would like your assistance with. First of all, can we just highlight documents that you had received by then?
A Yes.
Q First of all, the interim assessment report from Francine Salem at item 1. We have looked at that. That is C1 at tab (b). Is that right?
A Yes.
Q You summarised the content of that. Over the page, Mrs M’s police statement and we have highlighted that in the sheath of police statements that you had.
A Yes.
Q The list of injuries to M2 and the summary of M1’s injuries we have looked at already.
A Yes.
Q Then, over the page, you highlight the chronology that you had received, and then the social services’ notes. Are those the logs of which we have seen a few examples during the course of this morning?
A Yes.
Q Then at item 7, an article written by or with Mrs M. Is that the magazine article that we have looked at this morning?
A Yes.
Q I will take you to page 180 at the bottom, which is another statement of Mrs M. Over the page, there are further statements of the people there listed. Were those in the clip of police statements you received from Francine Salem?
A Yes.
Q We come to item 16 on page 182. By this stage, had you been supplied with the minutes of the strategy meeting held on 26 January?
A Yes, I had.
Q We may look at that in a minute. To assist the Panel, that is bundle C1 at (o). Do you summarise the distillation of the strategy meeting of 26th January?
A Yes, I do.
Q If you do not mind, I shall come back to that in a moment. Can I go straight away to your initial and very preliminary opinion at item 17? You deal with your contact with Dr Bentovim and record what he had to say to you, and you dealt with that this morning.
A I did, yes.
Q Similarly, in the second paragraph, I invite the Panel’s attention to that. Did you agree with his proposal which appears in his second paragraph under item 17?
A Yes.
Q I am looking at the last line of that paragraph.
A Yes.
Q Did you contact the family’s GP?
A I did.
Q Did you receive the information set out in that paragraph, the last one on page 183, from the GP?
A Yes.
Q Over the page, there are three paragraphs which appear to relate to information that the GP gave you about the family and about Mrs M.
A Yes.
Q I do not propose to refer to that material. You understand why?
A Yes, I do.
Q I come, therefore, to the final paragraph, paragraph 18 which reads,
“I was very much concerned for the safety of M2 given all the above circumstances and felt the best approach would be to try and obtain an emergency protection order and place M2 as soon as possible in a high quality foster home.”
Was that your opinion up to the end of January?
A Yes, it was.
Q Reading on,
“I felt that at the same time he should be seen by a child and adolescent psychiatrist, ideally Dr Bentovin. I also felt that the mother should be offered psychiatric support. I feel that all the medical records relating to the children in his family, including M1, should be examined. These records should include the GP and all hospital records …
Information about M1’s death needs to be identified, in particular the post mortem report. For example, was any toxicology undertaken, was there any skeletal survey undertaken? All of these issues are potentially very relevant to the current situation.”
I want to ask you about that last paragraph. Did you at that stage have the post mortem report or any materials directly dealing with the inquest?
A No.
Q Why did you need to have regard, from your standpoint, to the post mortem report?
A The fact that M1had died suddenly and in the way that we have heard, I wanted to be certain that the appropriate investigations, such as toxicology and a skeletal survey, had been undertaken. They are standard in this situation and because of the background history in the family that led us to go into closed session a few minutes ago, this was extremely important to know about.
Q Why, in particular, in this report do you flag up toxicology?
A From what I had heard about the death of M1, the three scenarios that I identified during the closed session included the possibility that his death had been caused by somebody. Unfortunately, I have had a lot of experience of this in my work. With very young children, like babies, toxicology is not usually a major issue because they cannot fight back, if you like, whereas in an older child, poisoning first has been documented in the literature and I have seen cases. This was why I was worried to be sure that the toxicology had been cleared.
Q You have told the Panel that by the date of that report, you had received the minutes of the meeting on 26 January.
A Yes.
Q I now want to take you to that. You will find that at tab (o). This documentation consists of two separate documents. First of all, the first eight pages relate to the minutes and then attached are four pages, which are headed “Summary of hypotheses.”
A Yes.
Q Did you receive both sets of documentation?
A Yes.
Q Did you receive both sets of documentation?
A Yes.
Q If you look at the first page of 26 January, we see the list of attendees and you have told the Panel already that you did not attend this and indeed your name is absent from that list. I will not invite you to go through this. The Panel can, of course, do that themselves, but I do ask your comment on a couple of passages beginning at page 5. One of the attendees was Detective Inspector Warwick, where, in the third paragraph from the bottom, it says,
“DI Warwick stated that the verdict on M1 was an open verdict. He explained that there are only certain verdicts that the Coroner could bring. A suicide verdict would have needed evidence to support it, but there was no evidence for this. The only verdict left to bring in was Open”.
Did you read that?
A Yes, I did.
Q Over the page on page 6, half-way down – in fact it is the fifth paragraph,
“A document was circulated prepared by Annette Clarke, senior social worker (Assessment). She had prepared a number of hypotheses on Munchausen’s syndrome by proxy”.
Keep your finger in that page and move to the next section of the document, please. Did you understand those documents to be the ones being referred to in this report?
A Yes, I did.
Q Looking at Item 1,
“Ms Salem informed the meeting that she has grave concerns about the similarities in the boys’ lives. The threats should be taken seriously. The hospital presentations are another concern, are they parentally induced? The presentations themselves are very unusual.
She is awaiting feedback from Professor Southall in North Staffordshire. He is to provide a preliminary report on information already submitted. He has already advised to take the concerns very seriously”.
So far as you are concerned, was that an accurate summary of the position?
A Yes, it was.
Q Then over the page, at page 7 of the minutes, top of the page, third block of text down,
“Suggestions were made that bullying is used as a smoke screen. There is no evidence to suggest either of the boys were bullied”.
Did you note that?
A Yes, I did.
Q Drop your eye down, please, to just over half-way, to the reference to 8.1. Do you see that?
A Yes.
Q Keep your finger on that and move to the hypotheses documents, to the second page which has page 18 at the bottom.
A Yes.
Q Do you see at the top 8.1?
A Yes.
Q The proposition in 8.1 was this,
“If M2 was talking of committing suicide, then he may be experiencing increased emotional turmoil due to”,
and then a whole series of possibilities.
A Yes.
Q Then 8.4, which I draw attention to for your comment,
“If M2’s talk of suicide is fabricated by mother to seek attention for herself, would she provide him with the medication or opportunity or increase the suggestion to him that he should kill himself”.
That is set out under the heading “Hypothesis No. 1”. Who is there raising the possibility of the provision of medication?
A That is a senior social worker, not Francine Salem, the other one.
Q From social services.
A Yes.
Q We go back to the text in the report at page 7, under 8.1 the comment is made,
“There was not sufficient evidence to suggest M1 killed himself”.
Then towards the end of that page, “Hypothesis No. 2” – and if we go to that it says, as a proposal,
“M2 is being emotionally abused by his mother through commission and omission”.
The note of the meeting minutes is accepted. I take you to the last page of these minutes, to the top,
“Grave concerns re M2’s emotional well-being exist. All hypotheses are potential. Dr Southall suggested that there is concern for M2, but if M2 is removed from the home will his situation improve or worsen? What to do for the best is the problem.
Dr Solomon offered to speak to Professor Southall about the case”.
Just pausing there, did she ever speak to you about the case?
A No.
Q Next line,
“Was M2’s death suspicious and are circumstances repeating or is it just a tragic situation due to repeat itself again?”
Then there are a series of recommendations, including at number 4, your view to be sought; number 6,
“Police and Social Services to undertake a joint Section 47 investigation”.
Number 8,
“The group to reconvene on Thursday 29 January”.
With that mechanism just drawing your attention historically to what occurred and what you received, Dr Southall, again either based on any written material or from your recollection, what was the impact of receiving that material from social services on you?
A I think it echoed really some of the things I was worried about and emphasised some of them more. It really did raise serious concerns about the possibility of three scenarios rather than two.
Q The three being what?
A Again, I am worried about this but I presume I have to talk about it. The three being that it was an accident; that he did not intend to kill himself but was playing around with hanging and he died. Secondly, that he did intend to kill himself and therefore this was suicide. Thirdly, that somebody else had killed him.
Q Were those three possibilities, scenarios – whatever term one uses – to your knowledge shared by social services or not? Or can you not say?
A It is clear from this that they were, and the reason for the Emergency Protection Order related only to the third, really, although there were concerns about the emotional side as well, about the fact that if it was suicide in M1, the substrate in the family background could be pushing M2 in the same direction, which again would be harmful and would be, in its own right, another reason for an Emergency Protection Order.
Q I want to move now to February 1998, Dr Southall. There are two references. First of all, can you look at Tab (u)? This, on its face, is a statement filed in family proceedings by Francine Salem dated 3 February. Have you seen this document before?
A Yes, I have.
Q On pages 1 and 2 she summarises the history and, to a large extent, you and I have covered this, but I want to take you to the third page. She picks it up in the third paragraph,
“In light of the concerns raised a multi-agency Strategy Meeting was held on 26 January 1998 where it was agreed that more information was required”.
Then she deals with the visit on 28 January,
“On 28 January, myself and my Team Manager visited Professor Southall who had opportunity to read all the relevant documentation. He confirmed his belief that Mrs M had Munchausen’s Syndrome, and that she presented a high risk to M2, it was his opinion that we should remove M2 the same day”.
Pausing there, what was the strength of your belief at that stage about the existence or otherwise of Munchausen’s?
A Firstly, I have to explain what Munchausen’s is, because there are two components to Munchausen’s. There is Munchausen’s Syndrome and Munchausen’s Syndrome by proxy. Munchausen’s Syndrome is a situation where an adult, in order to gain attention for themselves, fabricates, exaggerates or induces illnesses in themselves. There is a link between that and Munchausen’s Syndrome by proxy, where the parent fabricates, exaggerates or induces illnesses in their child for the same reason, to gain attention for themselves. So in both there are attention seeking behaviours. One involves harming and hurting oneself and one involves harming and hurting one’s child to gain attention.
How strongly did I feel about it? I think I felt worried about it. I would not say I was certain, that is why I used, “very preliminary report”. I was concerned about all the information in this case and one of the things that pushes mothers in particular to fabricate, exaggerate or induce illness in their child, or even in themselves is domestic violence and violence to them. It is a sort of way of trying to get some support for what is intolerable in their own lives. So there was a lot of information suggesting that either Munchausen’s Syndrome or Munchausen’s Syndrome by proxy might be very relevant in this case.
Q Then again, on an historical basis, she deals with the obtaining of the EPO. In the penultimate paragraph,
“The meeting agreed that Police and Social Services would jointly plan further Child Protection enquiries relating to the M family and that a Child Protection Case Conference should be held the following week”.
Finally this,
“The main areas of concern relating to M2 remain that there is a similar pattern being established regarding A&E presentation for M1 and M2, and that for both children. Bullying has and is being blamed for their unhappiness, enquiries have not substantiated the parents’ concerns and I believe a full assessment is needed to look into alternative causes”.
Did you agree or disagree with the opinion there being expressed, that a full assessment was needed?
A I agreed.
Q If we go back into Tab (v), please, page 99. We are now well into February and I want you to look at an entry for 25 February, just half-way down the page,
“Dr Southall returned my call – discussed the way forward. Dr Southall felt that Dr Bentovin should be seeing M2 as soon as possible”.
Is that correct, that you did feel that?
A Yes, I did.
Q Continuing,
“Then see Mrs M herself. He believed that the sooner this is done the better. Dr Southall felt that we should be trying to establish a good rapport with M2 to try to facilitate him ‘opening up’. When I told Dr Southall that I felt M2 was rather defensive, he indicated that this was worrying in itself as if there was nothing to hide then he wouldn’t be defensive”.
Was that a view that you expressed at that stage to social services?
A It looks like it. I cannot remember but it would be reasonable.
Q You do not remember this meeting?
A Not at all.
Q She goes on,
“Dr Southall wanted us to get the SOCO”.
Again, what is an SOCO report?
A Scenes of crime.
Q Just pause there, does that relate to the circumstances of M1’s death?
A Yes.
Q Again, just before we go on in the text, what was the potential relevance so far as you personally were concerned of the SOCO report?
A I had heard that M1 had allegedly hung himself from a curtain rail or a curtain pole, and I suspected that this had been investigated by the scenes of crimes officers to see whether or not it was possible, for a start. My experience of curtain poles is that they are not powerful and are designed to hold up curtains, not 30kg. But that is why I wanted to know what they had found at the house.
Q You did not have it at that stage.
A No, I did not.
Q The note goes on,
“and to interview the doctors that actually saw M2 at hospital A&E to discuss the precise nature of the injuries”.
There are other comments. Then that deals with February. In March, Dr Southall, did you become aware that an application for an Interim Care Order had been made and determined in the County Court by Judge Tomkin?
A Yes, I did.
Q As we have heard, the judgment in that case was delivered on 10 March 1998.
A Yes.
Q Did you give evidence during the proceedings?
A No, I was abroad.
Q Had you by that stage provided any other report or was it at that stage confined to what you described as a very preliminary report?
A Just that.
MR COONAN: I want you now, please, to turn on to Tab (x).
THE CHAIRMAN: Mr Coonan, I am sure Dr Southall and yourself would like a break fairly shortly, if you would like to choose a time between now and the next 10 minutes or so which is convenient.
MR COONAN: I am happy to break now because this is an important document and really signifies the next stage of the account, so I am more than happy to break now.
THE CHAIRMAN: Then we will take a break for about 20 minutes.
(The Panel adjourned for a short time)
MR COONAN: Dr Southall, can you turn, please, to Tab (x) in C1? You will find a letter there from the solicitor, Mr McLaughlin, solicitor for the social services in the county concerned? Do you have that?
A Yes, I do.
Q In the first page you are in effect being formally instructed, you having agreed already in principle, is that right, to provide an assessment and report in this matter. Is that right?
A Yes, that is right.
Q Various personnel are set out. On the second page Mr McLaughlin summarises some of the history, looking at the first paragraph, and in the second paragraph he deals with the matter coming before Judge Tomkin. Can I just take you, please, to the middle of that paragraph,
“At this hearing no Interim Care Order was granted to the Local Authority after four days of hearing evidence although the Judge indicated that the threshold criteria in Section 31(2) were met in respect to the volatile relationship between the parents, at this time the original application for the Emergencies protection Order was made. The Judge had heard evidence from Mrs Inwood”.
She was the Guardian Ad Litem, was she not?
A Yes, that is right.
Q It continues,
“during the course of the proceedings, who supported the local authority’s application and plan that M2 remain in foster care with contact planned”.
He noted that Dr Solomon had given evidence and her view was that M2 could safely be returned home. Continuing,
“Directions were given on 10 March 1998 when leave was granted for the Court papers to be disclosed to you for the purpose of your providing an expert opinion as a consultant paediatrician”.
Pausing there, is that the sort of thing that has happened in other cases, where the court has given leave for papers to be disclosed to you, as here?
A Yes, that is right.
Q At the bottom of the page, the writer encloses a note of the general accepted principles of what is expected of you as an expert in these proceedings, and notes towards the bottom of the paragraph,
“If you wish to have direct discussions with Mrs Inwood you are permitted to do so because she is the court’s independent reporter”.
Did you ever have any direct discussions with Mrs Inwood?
A I cannot remember.
Q Then on the last line,
“Mrs Inwood’s preliminary assessment is set out in her report which is one of the documents herewith”.
If we move to page 5 there is a list of documents, but her name is not specifically mentioned, and her report has not as yet been photocopied in our bundle, Professor Southall, but I just note that in passing. Over the page, at page 3, he encloses a schedule of those documents which have been filed with the court to date, and the schedule, as I have said, is at page 5. Casting one’s eye over that list, is it right that you had received at least a substantial proportion of that documentation in any event by that date?
A Yes, it is.
Q I want to ask you now about the issues. There are seven issues which are specifically referred to. Can I ask you this question therefore globally? Will you explain in your own words to the Panel what you understood your remit to be against the background of the material that you had read to date, together with your knowledge of the concerns which had been expressed to date? Do you understand?
A Yes, I do. I was being asked as an expert in life-threatening child abuse to provide an opinion on the safety of M2 given the circumstances outlined earlier and in the new documents that I was being provided with, and of course any future meetings I might have with the parents or the child. My particular expertise was life-threatening child abuse, in particular also factitious or induced illness, as it is now called, which was originally called Munchausen’s syndrome by proxy. So the court knew that one of my most important tasks was to try and either rule out or rule in that possibility, and all of this is to go towards the safety of M2. In order to do that my normal way of doing it is to forensically analyse the data I am provided with and sometimes, not always, to interview the parents, sometimes the child, depending on the age and circumstances, and then to produce a final report for the court.
Q Underneath the seven items the writer says:
“Could you please ensure that your Opinion is confined to the medical issues: the question of disposal of the County Council’s application is of course a matter for the Court at the final hearing.”
First of all, do you agree that the question of disposal is a matter for the court?
A Yes, absolutely.
Q When the writer expresses himself thus:
“Could you please ensure that your Opinion is confined to the medical issues”,
what does that mean to you?
A To me that means the medical forensic issues relating to the questions about factitious or induced illness.
Q One matter that I should ask you about at this stage: Against this factual background, would you expect your remit to include you focusing, at least in part, on the circumstances surrounding M1’s death?
A It was central to the issue of risk because the real risk that social services wanted to know, and the court, was: Is M2 at risk because of something being possibly done to M1? That was the real underlying basis for all of this.
Q The writer signs off in the way in which we see at page 4. I am going to deal now with events in April which precede the interview which we have heard took place on the 27th, but first of all let us look at the earlier dates. It may be convenient, since we have it open, to look at tab (y), rather than jumping around. We are now on 23 April. Did you receive another letter from Mr McLaughlin?
A Yes.
Q Did he enclose a copy of the transcript of the coroner’s inquest and, on the face of it, with a post mortem report?
A Yes.
Q Did you want details of the evidence given at the inquest?
A Yes, I did.
Q Looking at the face of this document at page 185, is that your writing?
A Yes, it is.
Q You refer to length of belt, injection, toxicology, is that experts on poles?
A I think so.
Q Plan of room
A Yes.
Q Ambulance record, other hospital record?
A Yes.
Q Were these writings before the interview which took place on the 27th, or during, or after?
A I think they were before.
Q What do they denote?
A I had read the inquest reports and the post mortem report and I think the underlining in those is mine probably – I cannot be certain, but it looks like mine – and these points on this letter are key issues that arose as a result of reading those documents.
Q If we move into that tab, tab (y), on page 186 at the bottom we see the record of the position and we see the transcript of the evidence given, and when you refer to underlining, this is the document you were referring to. Is that right?
A Yes, it is.
Q There are a number of places, in particular page 189 you have asterisked. Is that right?
A Yes.
Q I shall deal with this compendiously in a moment. I move on to page 193. Have you made some notes on the post mortem report?
A I have.
Q Then in fact on page 199, page 202 and 209, again asterisks?
A Yes.
Q Reading the inquest evidence, as you have told the Panel you did, what issues were being flagged up for you?
A Can I just start at the beginning?
Q Yes, you will find it at ---
A 196.
Q It begins at page 187.
A Okay. If we start with the post mortem report, or the report of the pathologist ---
Q That is page 193.
A Yes, sorry, 188 is the sworn report.
Q The sworn evidence.
A The sworn evidence, yes, and then 193 is the post mortem report. I could not see a few things. I could not see his weight.
Q What was the relevance of that?
A I was concerned already about the curtain rail and its ability to withstand the weight. The belt was 44 in long, which to me was an adult belt. I had noticed a needle puncture in the inner side of his right elbow, so there was that. I could not find any toxicology.
Q Dr Southall, in a nutshell, why were these apparent omissions relevant to your task?
A Because if that third scenario, the third possibility, that he had been killed, was true, then the issue of, for instance, toxicology becomes very important and so I was looking for it really.
Q Just put that to one side for a minute. I want to take you into your contact with social services at about this time.
A Yes.
Q If necessary you can come back to that, but can you look now at tab (v) and turn it up at page 100 please? The letter that we have just been looking at from Mr McLaughlin was 23 April?
A Yes.
Q Just stepping back three days in time to look at your contact with social services we see at the top of the page ---
MRS LLOYD: Can we have clarification of that last reference please?
MR COONAN: I am so sorry. Yes, it is tab (v) for Victor, page 100.
(To the witness) I am now stepping back three days.
A Yes.
Q We see here at the top of the page:
“T/C [telephone call] from Pfr Southall, who rang questioning whether a curtain pole would actually take the weight of a 10 yr old boy. He based this concern on the average weight of 30 Kgramms for a 10 yr old boy, he felt that the police should be looking closer into this.
Pfr Southall reiterated his belief that Dr Bentovim should be doing a full assessment.”
First of all, do you accept that you did make such a telephone call?
A Yes, I did.
Q Were you in fact at that stage concerned about those matters? In other words, the physical issue of weight and curtain pole?
A Yes, I was.
Q If you now look at the bottom of the same page, we are now on 24 April and this is the day after the second letter from Mr McLaughlin.
A Yes.
Q It reads:
“T/C [telephone call] from Legal Department …”.
In fact, that is Mr McLaughlin’s department. Is that right?
A Yes, it is.
Q
“Pfr Southall wants to see the [Ms] next week”,
and then there is a discussion about the travel arrangements. That is noted in the plural. Did you want to see Mr and Mrs M?
A I did.
Q Did you wish to see them, as it were, together in the same room, or sequentially, or what?
A Ideally to see them together, then individually.
Q If you turn to page 101, still on the 24th, half-way down the page – again just to set the scene as we are moving out to the 27th now – there is a reference to transport being arranged to be provided “on Monday morning to and from Professor Southall’s appointment”, and a telephone call from Mrs M and she being informed of travel arrangements made for Monday to get her to Stafford. Did you in fact ever see Mr M for the purposes of this assessment?
A No.
Q Were you disappointed not to see him?
A Yes.
Q There is an entry at the bottom of page 101 for the 27th itself:
“Pfr Southall contacted the I. Assessment team this morning and requested that I be present during the discussion with [Mrs M] today. This was agreed …
T/C [telephone call] from Legal requesting copy of [a television video] for Dr Southall – advised that the barrister had it.”
Apparently a barrister had it, but more importantly over the page at page 102:
“The reasons that Pfr Southall suggested I be present during the discussion with [Mrs M] was because he would be addressing the following issues:-
(1) Who the belt belonged to.
(2) How it was wrapped round the pole.
(3) Was toxology done.
(4) Question needle mark in [M1’s] arm.
He felt it would be useful if a s. worker was present.”
Did you telephone Francine Salem and set out, first of all, a request that she be present?
A I did.
Q Were the reasons that you gave the reasons which are noted here?
A Yes.
Q Against that background can you help the Panel, please, with these questions. On previous occasions when you had felt the need to interview a parent, had you ever sat in with a social worker on such interview before?
A Frequently.
Q On this occasion, quite apart from the specific items which are noted, what was the underlying reasoning for having a social worker present?
A There are a number of reasons. Firstly, that such a discussion would not have been an easy discussion for anybody, for the mother or for me, to do. I felt that it was being required, requested by social services and the court, had to be done; it was an essential component of the protection for M2. I felt it was likely to be upsetting for the mother, so having a social worker there who knew the mother I felt was a reasonable way of helping that issue. It was also to protect me because I would be raising issues that might cause concern with the mother, understandable concern – I am not criticising any concern she might have had – but having somebody else there independently of me was important professionally.
Q It may be obvious but I would like you to spell it out. Why did you think that it might be upsetting for Mrs M to have this interview with you?
A Because she would know that the reason the emergency protection order had been taken was that the third scenario was being raised as a concern, a major concern, and that because of the inquest information it was known that she was alone with M1 when he died. So, anybody would feel the way she would feel in that situation, that this was going to be a very, very difficult discussion.
Q There are two further documents, please, you need to look at which pre date the interview itself on the 27th. The first one we can find at (dd). We see that at the bottom of page 71. Do you see that?
A Yes.
Q It is important just to get the dating of this right. On the second page on page 72, the file note is dated the 27th.
A Yes.
Q If you turn back to the first page, the last two lines, you see there,
“Professor Southall suggested either Monday 26 at 11 am or Wednesday 28”.
So at the moment, I am going work on the basis that these events were, as it were, occurring before the interview.
A Yes, I think that is right.
Q If that is wrong, then obviously the matter can be rectified. For my purposes, that is the basis of the question. Let us look at this. The writer, I think is probably Ms Garrard. She is noted elsewhere in the documents. She records a telephone call out to you and you say, again in the first paragraph,
“He [Professor Southall] was anxious to stress that it is important to get to the bottom of this matter and that this is extremely serious. He feels that he will see the parents separately as soon as possible (although he did not mind if they travelled up together).”
The third paragraph reads,
“Professor Southall had spoken to Francine regarding the curtain pole. He feels that M1 would have weighed about 30 kilograms and does not feel that any pole could take that weight. With the additional g-force 30 kgs suddenly pulled downwards by gravity he feels that the force would be about 100 kgs and cannot believe that a curtain pole could carry that. Professor Southall’s understanding is that the police had no real concern whatsoever that there may have been foul play involved in M1’s death and apparently the pole was subsequently burnt by the family.”
Then this:
“He was concerned that if evidence comes from the police investigation that Mrs M could have killed M1, then M2 will be at risk because she has nothing to lose in terms of punishment and she could argue she was mad if she’d killed two children.”
Is this an accurate account in your view of what you were saying to the writer, in (gg)?
A It is not the words I would have used, but I think the sentiment is correct.
Q In a word, can you help the Panel, what sentiments were you expressing to the author of this file note?
A That, from my perspective, my real job in this case was to investigate the third scenario possibility, because it had not been done. Certainly the bullying issues had been thoroughly investigated by the Part 8 review. There had been no suicide note. That had been documented already by the police. This was the serious issue because it related to the safety of M2, to get to the bottom of it.
Q What was your understanding at this stage, as of the 27th, of the state of any police investigation into the circumstances surrounding M1’s death?
A I was not at all sure what they had done. I was asking had they done tests on the pole; had they subjected it to weight tests to see if it could take 30 kgs or 100, which was reflecting what the mother had said she tried to do, which was to pull him off the curtain pole.
Q When you say the mother had described, “what she had tried to do” that is in the documents that you have seen?
A Yes.
Q Looking at the last paragraph of this note, please,
“He, [that is you] was most insistent to have whatever information was possible that the police managed to glean about the curtain pole. He was anxious that some serious investigations were done on the effect of a 30 kilogram person hanging on a curtain pole.”
Does that, in effect, summarise your concerns in this note?
A Yes. It was not so much that it would break, but that it would pull out of the wall. That is what I was thinking about it. It is not just the pole. It is the pole in the wall and how it is screwed in.
Q Dr Southall, how important, relative to other aspects of the case as a whole, in your mind was what I am going to call the pole issue?
A It was very important because if it could be shown that my concerns were not correct, that the pole could take that weight and be responsible for the hanging, then this would be very supportive of the other two scenarios, and therefore make it much safer for child M2.
Q The next document is at page 77 of the same tab, (dd). This is a note apparently signed by Francine Salem dated 28 April. Of course, 28th is the day after the interview.
A Yes, it is.
Q Leaving aside the time it is dated, for my purposes, I just want to look at the elements. These eleven items that she appears to have listed, do those represent elements that you were intending to cover with Mrs M?
A No, they are elements that have come after the interview from as a result of what she told me, they are things that I thought social services should do.
Q Did you give those elements to Francine Salem or reply in or in writing; can you remember?
A I cannot remember.
Q We come to the interview itself. Did this take place in the Academic Department?
A Yes, in my office.
Q Did you know on the day itself that Mr M would not be coming after all?
A I think Francine Salem arrived first and told me, but I cannot be sure of when I found out.
Q Can you describe for the Panel, please, the layout of your room and where people were sitting?
A I cannot be one hundred per cent sure of this, but I was behind my desk, I think, a desk like this, and Mrs M sat in front of me. Now I am not sure where Francine Salem sat. I think she sat to my right looking at mum, but I am not one hundred per cent sure.
Q Did you take any notes during the course of this interview?
A Yes.
Q To your knowledge, did Francine Salem take notes in the interview?
A I think so, yes.
Q Can you turn now to Tab (bb)? You will see some handwriting beginning at 158 at the bottom and running through to 167. First of all, is the handwriting on those pages yours?
A Yes, it is.
Q Did you make those particular notes during the course of the interview?
A I think so, yes.
Q Again, just by way of preliminary, if you turn to page 161, there is a diagram of the layout of the various rooms.
A Yes.
Q Who drew that?
A Me.
Q Did you draw it during the interview?
A Yes, I think I did.
Q At 163, there is a diagram. Who drew that?
A I did.
Q Did you draw it during the interview?
A I think so, yes.
Q On 164 and 165, there are two diagrams in a rather neater form than the two diagrams we have already looked at. Do you know who drew those?
A I am not one hundred per cent sure; I think it was my secretary, but I cannot be sure.
Q After the interview?
A Yes.
Q Then, just to deal with the formalities, if you turn over to tab (cc), this is a typed version of your notes that w have been looking at prepared by Ms Ellson of Field Fisher Waterhouse. Again, I just need to ask you this formally, please: have you actually been through this document?
A Yes, I have.
Q Is it an accurate representation of what appears on the notes as far as you can tell?
A Yes, as far as I can tell.
MR COONAN: Again, if we just turn on, please, to Tab (gg), you should see a typed version of Francine Salem’s notes that we have been told about thus far. I hope it is an unmarked version that your attention is being drawn to. It is at page 23 of (gg). Is it unmarked? I hope the Panel have an unmarked copy because I recall there was some change to the positioning of this document. There should be a page 23.
THE CHAIRMAN: I can confirm that there is an annotated copy at (aa) and I have an unannotated copy at (gg).
MR COONAN: Dr Southall, we may need to look at the annotated version to begin with. Do you have a clean copy of Francine Salem’s note?
A Yes.
Q Typed of course. Have you read through that document?
A Yes.
Q It is dated 28 April. What is your view about its accuracy as regards this interview?
A Accurate.
Q You have your own note that you described.
A Yes.
Q There is Francine Salem’s note. What memory independent of that material do you have now of this interview?
A I remember it.
Q You do?
A Yes.
Q Is there anything about the interview which allows you to remember the details now – this is in 1998? Just help the Panel about that.
A It was an interview that you would not forget doing because of the nature of what was going on at the time. My recollection is that Mrs M was extremely co-operative, not overtly emotional, and answered the questions, perhaps with the exception of the belt question which she did raise with me as something that her solicitor did not want her to discuss, but then she discussed it.
Q Let us break it down stage by stage. What was the structure and approach that you were going to adopt with Mrs M in this interview?
A I think the chronology of it would be to start off talking about M1; then the circumstances of Ms’s death and then his medical history. There was a particular concern I had about the scalding incident. Then – I am just going through it to remind myself of the sequence – to move on to M2 and his medical history, and again there was a particular concern about his medical history I wanted to talk to mum about. Then the scenario issue with regard to M1’s death and I talked to her about the injection mark in his arm, about the pole. Then I talked about the bullying and the belt. I cannot remember how it ended, but certainly I do not recall that there was overt upset. I have no doubt that Mrs M was upset, but there was no overt indication of that at any time.
Q Since you mention that, was there any appearance of, say, two to three minutes sustained crying?
A Not that I can recall, no.
Q If you look at Francine Salem’s note, and in particular page 25 at the bottom – do you have that?
A Yes, I have.
Q In the third paragraph of that, the third block of text, she has noted the following,
“Professor Southall then went through three scenarios with Mrs M as follows”,
and the three are set out.
A Yes.
Q Did you go through the three scenarios with her?
A I did.
Q In what sense were those scenarios canvassed with Mrs M?
A These were issues that had to be cleared up for the court. We had to investigate each of the three. It was difficult to do, very difficult, but she did not make it difficult for me. That is for certain. She understood, I think, what I was doing and why I was doing it.
Q Did you raise, first of all, in any sense the question of her having access to drugs in the hospital setting?
A Yes, I did.
Q In what sense did you canvas that with her?
A I cannot remember exactly but I think it went something like, “No toxicology was done” and I think she expressed surprise at that actually herself. I said, “Then there was the needle mark” and I had not had an explanation for that. She did not know where that had come from either. I suspected in fact that it was actually the ambulance paramedics, but I still did not know at this stage because I had not been told. Can I just refer to my own notes?
Q Please do. Go back to (bb), to 158 at the bottom. Obviously you can follow it in the typescript or in your handwriting. If you look at the third page, page 160, you might see a reference about a third of the way up from the bottom.
A Yes, that is right.
Q Can you just read out that passage?
A “Doesn’t watch drugs being drawn or given. Opposite end of bed to anaesthetist. Assisting the scrub nurse. Never seen an injection into another person”.
Q Again, I was asking you the context in which you canvassed that question.
A Yes, I would be asking her directly questions like, “Did you ever see an injection given of drugs? You work in an operating theatre”. Her answers were as written, “Never seen an injection into another person”. What I did not do was then say, “Well, that cannot be true”. In other words, I record what she said, that she had not seen an injection, and that would be it, full stop, because I am exploring the issues.
Q Did you ask her questions about the curtain rail?
A I did.
Q Did you ask her questions about the belt?
A Yes.
Q Was she reluctant to answer questions about the belt?
A Yes, she was.
Q I think you have already mentioned that she referred to her solicitor having given advice.
A Yes, that is right.
Q Did you ever say to her words to this effect, that she must be guilty if she did not answer the question?
A No, I did not.
Q Did you tell her that her solicitor’s advice in that respect was wrong?
A No. I said it was important for us to know the answers, and she said something like, “Well, if it will help to prove my innocence, here is how the belt was tied”, and then she showed me. It was that sort of response.
Q How did it come about, Dr Southall, that one has the drawing of the belt?
A I did it in front of her, I think. She showed me with something that was on my desk – she showed me.
Q You wrote it down.
A I drew it. I think I probably showed her the picture.
Q So far as the diagram of the room layout, where did that come from?
A It was she and I doing it together, me doing the drawing and she telling me the circumstances.
Q Did you at any stage during the course of this interview pressurise her?
A No, I did not.
Q Deliberately pressurise her.
A No. She may have felt that because of the questions and the nature of them, but I did not deliberately pressurise her into doing anything or saying anything.
Q Did you ever say to her at any stage that you simply did not believe what she was saying?
A No, not to her. I have said in my report subsequently that I have problems with some of the things, but not in that interview face to face.
Q How long did the interview last?
A I cannot be sure. It is difficult to gauge time and I did not document it, but I would think about an hour.
Q What was the role of Francine Salem, if any, during the course of the interview?
A I cannot quite remember really whether she did actually say things at times. I have a feeling she did, but I cannot be sure.
Q You appreciate the essence of the allegation which is made, which is that you actually accused her of murdering her son.
A Yes.
Q Did you?
A No, I did not.
Q Was the topic or the possibility of that having happened raised in the conversation?
A Yes. Inevitably, it is the third scenario. To her she was the only person with her son at the time in the house. Actually to me, that may not necessarily have been the case. I was exploring the truth. So from her perspective, having told me she was alone, there could not be anybody else who could have killed M1, if you accept that at face value. But I obviously was not accepting anything. I was just exploring the scenario.
Q The three scenarios which you have accepted were canvassed, which are summarised, for our reference purposes on page 25 – that is Francine Salem’s note. Were those three scenarios considered by you to fall properly within your remit of your letter of instruction?
A Yes, they were.
Q On the assumption that Mrs M was upset after she left that room and was noted to be upset, on 27th, what do you say to the Panel about the possible cause of that?
A I think that I would completely understand her being upset and in fact I am sorry that it had to happen that such an interview had to go ahead. She did not, as I said, appear to be overtly upset, but I am sure she was. I am sure she would have felt under attack almost, because of the nature of the scenario. But I did not accuse her of anything as such, directly in the way that she said. That did not happen, but I understand how she would have felt, completely.
Q After that interview, I want to examine with you, please, the contact that you had with social services and for these, will you turn again into Tab (dd) and go to page 84? Do you have that, Dr Southall?
A Yes, I do.
Q This is after the interview and the telephone call with you on 15 May 1998.
A Yes.
Q You say there apparently, according to this note – and I am looking at the first paragraph – that your report would only be preliminary as you had four queries that were awaiting reply. In the first paragraph you deal with the question of weight and pole. Yes?
A Yes.
Q You say on the fourth line that you understood that the police were looking into this?
A Yes.
Q We can pause there. What was your state of mind at this stage? What did you think the police were doing?
A This is not quite accurate actually. This is important because when Mrs M said that I accused her, she said, if I remember the words correctly, that she had hung him from the pole and that I would have said it would have broken. It is not that it would have broken. My concern was that it would have pulled out of the wall because, when talking to her, it was a thin pole from Wilkinson’s and it had been held in with two screws, one at each end, with no middle support. So when this first paragraph is written here, I do not think that whoever wrote it has got quite the right picture. The picture I was bothered about was the pole pulling out of the wall rather than breaking, although breaking is possible. Breaking, if it had been absolutely anchored, I still think that 30 kg might have been supported by a pole, a wooden … So it was the pulling out of the wall, not the breakage. So it is not quite right.
Q Leaving aside that detail, I want to ask you about your understanding of the police role by this stage. What was that, as you understood it?
A I understood that they were going to investigate my concern by perhaps setting up a model with a pole and screws into a wall, the same wall or type of wall, and see whether or not it would take the weight. That is what I understood was the important question.
Q In the second paragraph you raise the question of the toxicology tests which would have been done by the pathologist. Is that right?
A Yes, that is right.
Q I move to paragraph 3. The writer of this note records you saying this:
“The injection in the right arm. He does not believe that mother has had no experience of administering injections or seeing injections being administered. He wondered if it was possible to check with the hospital and the ambulance crew whether there was already a needle mark in the arm and whether or not they had administered an injection to [M1]”,
and then the toxicology test is dealt with. At this stage on 15 May did you express the view to social services, to whoever did this note, whoever it may be, that you did not believe that Mrs M had had no experience of administering injections?
A Yes. Not administering, seeing injections being given. Not administering.
Q The note says “no experience of administering or seeing …”.
A Seeing them was what I had a problem with, not administering them. I do not see why she would have administered them as a healthcare assistant, but seeing in an operating theatre an injection being given into somebody, I cannot believe even now that she had not.
Q The point for my purposes is this. Did you express the view to social services that you did not believe the mother’s account on that point?
A That is correct.
Q Did you at any stage during the interview itself with the mother express the same view to her?
A No, not directly as such, but she would have inferred that without question, because I talked about the anaesthetist and the end of the bed. But, I was equally not in any way sure about that mark on the arm. I was pretty sure it was the ambulance persons, as I said in my report, and I think you can see here that I was questioning that that might have happened, because paramedics do give injections.
Q Then we come to your report itself and you will find that in tab (z).
THE CHAIRMAN: Could I just say, Mr Coonan, Dr Southall, if you feel either that you need to take a short break, to indicate so. We would perhaps normally go on till one, but I appreciate that a break might be needed.
MR COONAN: Are you all right, Dr Southall?
A Actually, I am all right, thank you. It is very kind actually, but I am all right. I am very happy to carry on, if you are happy to.
Q Tab (z), which is your report?
A Yes.
Q We can see immediately that this is a very lengthy document.
A Yes.
Q It is dated 20 May 1998, we can see that on page 35 at the bottom of the tab. Yes?
A Yes.
Q For my purposes I can just introduce it, and I hope this is helpful to everybody. You list your background expertise in short form on the first page. Is that right?
A Yes.
Q On the second page, aspects of the possible illness that you were investigating?
A Yes.
Q Then you list all the documents that you, by now, had seen for the purposes of this report?
A Yes.
Q On page 5 there are a number of documents identified in that list, which simply, as a matter of fact, had not been photocopied in this bundle. I am not complaining about it, I am just stating it as a fact. Obviously, if you need to see any document you can be provided with it. Do you understand that?
A Yes.
Q Then, in moving through the report, you deal with the statements that you have been provided with and you make, occasionally, various comments?
A Yes.
Q Simply to flag up an example, on page 10, half-way down, and you have used the technique of bold typeface to encapsulate a comment as you go through it?
A Yes, that is right.
Q On page 10 and page 11. What is the purpose of making a comment as you go through the summary of all the background statements of fact?
A These are sort of expert opinions. It was something that I did in all my reports; they were all like this, and I thought it was helpful to the court. It is an expert giving an opinion on issues that I was an expert in. I have never had any criticism of that, and in fact it is not just me, other people at that time were doing the same kind of thing. It was how we gave our reports.
Q One of the matters I would like you to look at is on page 15. This is a topic which relates to the medical records of Mrs M and the heading for that is at the bottom of page 13. You are dealing with the summary of the records which you by now have received.
A That is right.
Q Those are records that you wanted to have. Is that right?
A Yes, it is.
Q Just over half-way down do you make this observation?
“Looking through [Mrs M’s] medical records my general impression is that there has been a large number of attendances relating to … [certain] … problems, which have never turned out to have any serious basis.”
I jump the next sentence, and then you say:
“However, these medical records do not represent those of a person with Munchausen’s Syndrome.”
A Yes.
Q Was that your honest view at that time?
A Yes, it was.
Q Again, moving through the document, you deal sequentially with each document that has been placed in front of you, and then we come to page 27. In bold typeface just one-third of the way down the heading is:
“Minutes of a meeting held at the North Staffordshire Hospital on the 27th of April 1998.”
A Yes.
Q Are these minutes of the meeting with Mrs M?
A They are.
Q Do you introduce it by saying:
“Present at the meeting was [Mrs M], Ms Francine Salem and Professor David Southall.”
A Yes.
Q
“Professor Southall did most of the questioning with Ms Salem occasionally adding information.”
Is that your recollection at the time you wrote this document?
A Yes.
Q What follows over the next four pages, from page 27 to 30, is a description of that interview?
A Yes, that is right.
Q Which was written on 20 May 1998, barely four weeks later?
A Yes.
Q Have you had an opportunity of reading through this account?
A Yes, I have.
Q Can you help the Panel, please. Do you think that account is fairly accurate or absolutely accurate – you choose your own words – of the meeting itself?
A This is me using Francine Salem’s notes to recall what happened and to put it into the third person. As far as I can see it is accurate.
Q When you say the third person is used, we can see that straight away on the third line under the bold typeface:
“Professor Southall did most of the questioning …”.
A That is correct.
Q That approach is adopted throughout this part of the report?
A Yes.
Q On a number of occasions in that summary – I take you to page 28 – do you use the same technique of offering comment in bold typescript against a particular section of the interview reported by you?
A Yes, I do.
Q One of the matters that arises for your attention, Dr Southall, is at the bottom of page 29, the second paragraph from the bottom, beginning, “Professor Southall asked [Mrs M] …”
A Yes.
Q It is on the subject of injections, and you said at the end of that text, following the sentence which says:
“She said that she had never seen an injection being given into another person. I cannot believe this.”
A Yes.
Q Then in the next block you record, in relation to the curtain pole:
“[Mrs M] points out that she is between 13 and 14 stone in weight and, even with the additional weight of [M1] hanging from the curtain pole, she couldn’t pull the pole off the wall.”
Your comment:
“I find this very difficult to believe.”
A Yes.
Q Did you ever say to her that you found that very difficult to believe?
A No, not in those words.
Q What do you recall you saying to her and in what context?
A I can probably have said, well, something like, “Would you not expect the pole to have pulled out of the wall?” and she might have said yes or not to that, or “No, it didn’t”, and I would have left it at that. In other words, every time that it reached the point where you change from a scenario to an accusation, I stopped. I did not accuse her of anything, but that does not mean she did not feel that way, and I am not arguing about that. But I did not accuse her. That is the issue.
Q What was your tone of voice when you were carrying out the questioning in the interview, not just about the topic of poles or toxicology or injections, but generally?
A I hope it was professional.
Q Can you be more specific? What does that mean?
A I was talking to her about a serious matter that I knew was upsetting to her, it was upsetting to all of us, but it was not done aggressively, it was not done angrily; it was matter of fact.
Q As you said, the account at page 27 and 30 encapsulates your recall of the interview. Is that right?
A Yes.
Q Assisted by Ms Salem’s note?
A Yes.
Q If we look at page 30, at the bottom there is a reference to Dr Solomon’s report of 1 May and I take you then to your conclusion and final opinion. Again, have you had an opportunity of refreshing your memory by looking at these last four pages?
A I have.
Q You may have to break it down into a few of its constituent parts, but what was your overall opinion by the time you were compiling this report for the court?
A I just did not know. I think that is the end point of all of this. I do not know what happened. I found a number of issues that I could not explain or that were not explained. I was very concerned about the domestic violence issue and the risk to the second child. I felt it is encapsulated in that summary, my view. It is complicated. It is not simple and the bottom line is I do not know what happened, and I was left with that overwhelming feeling.
Q If you look at the bottom of page 34 of this tab you say, do you not:
“In conclusion, I find it extremely difficult to know how to advise the court on this very complex family situation. There remains a lot of unanswered questions that I feel further investigation is required. I remain concerned that [M2] is at significant risk of harm. This risk could relate to the potential for child abuse, possibly life threatening or to emotional mismanagement. Whatever happens I am sure that [Mr and Mrs M] need a considerable amount of ongoing counselling and support, if further major problems in this family are to be avoided.”
Did you intend the court to receive that overall opinion?
A Yes, I did. The usual statement at the end.
Q I just want to look at those last four pages and just pick out a number of observations that you made and seek any further comment from you. On page 31, please, just over half-way down, there is a paragraph beginning, “Looking at this pattern …”. Do you see that?
A Yes.
Q You are there dealing with a pattern of injuries to M1 and you say:
“…although I am concerned about them, I cannot at this stage categorise any of them as definitely having been the result of abuse. I have concerns about some of them, particularly the burn and the bruising as I have outlined above but that is as far as I can go.”
Did that represent your considered view at that stage?
A It did. The worst worry I had was relating to the delay in seeking medical attention for the severe burn. I think it was several days before he went to hospital.
Q You then in the next paragraph say,
“Turning now to [M2] …”,
and then at page 32 under that heading you say, in the top sentence, referring to some aspects of his medical history:
“I personally suspect this is an exaggeration by [Mrs M] but it does not come into the category of Munchausen’s Syndrome by Proxy.”
A Yes, that is correct. The injury in [M2] that bothered me was one when he was a baby and had bruises on his face. He was only nine months’ old. That was the one that worried me.
Q You say in the next paragraph,
“I am much more worried about M2’s psychological topics”.
A Yes.
Q Did that represent the high point of your concern about him by this stage?
A About him, yes, about his medical situation, yes.
Q The next paragraph, turning now to Mrs M herself, reads,
“I have looked through her medical records and do not feel that it fulfils the level necessary to make a diagnosis of Munchausen syndrome”.
Had you by this stage, in effect, ruled out Munchausen as regards this lady?
A Not ruled out, but it does not, as I have said there, fulfil the level necessary. I know Judge Tomkins pointed to 170 GP attendances in 10 years, which is a lot, but even with that, looking at them, I still did not feel that it passed the threshold of equalling Munchausen syndrome in my experience.
Q Then on page 33, in the third paragraph, you deal with the question of bullying.
A Yes.
Q And you expressed a view about exaggeration of that?
A Yes.
Q Even on that basis, was that a factor which supported or did not support or was neutral when one was considering the question of Munchausen syndrome?
A That is neutral.
Q Then halfway down, you say,
“Turning now to the situation of the death of M1, I find it very difficult to know which of the three possible mechanisms I outlined earlier in my report might have been responsible for M1’s death.”
A Yes.
Q Did you then go through each of those scenarios in the next three paragraphs?
A Yes.
Q I do not propose to read out those, but through you, Dr Southall, I invite the Panel to read those three paragraphs very carefully. Then on page 34, in effect, pre empting your final conclusion that you have already read to the Panel, in the second paragraph from the bottom of page 34, you say,
“There thus seems a lot of unanswered questions concerning the death of M1.”
Jumping down three lines it reads,
“The concept of a 10 year old boy deliberately hanging himself is an extremely rare event in any society and warrants the most rigorous of examinations as is now being of course conducted by the social services department”.
Professor Southall, did it warrant the most rigorous of examinations?
A Yes, it did, in my view it did. I know it is difficult to understand how this all arises, but it had to be looked at because of the many inconsistencies in the story, the death of one child already, and the way in which the second child was apparently also saying he was going to commit suicide. It was vital for that second child that the investigation was rigorous. I had a part to play in it. I had to do my part. That was what I was asked to do, as difficult as that was for the mother and me.
Q Given your understanding and acceptance of the proposition that these circumstances require the most rigorous of examinations, can I put this question to you: in performing your role, did you go beyond your remit and actually accuse this mother of drugging her child, leaving him hanging on a curtain pole to die, and then calling an ambulance? Did you allege that to her?
A No, and that is just not acceptable. I did not do it. That is the key issue and that was the line across which I could not move.
Q So what do you say, this being the public session, and it is your opportunity to say what you may to Mrs M now during the earlier part of the hearing you have not been in a position to do that about what she may have felt following the interview?
A I completely understand how she feels about this. I understand that she may have felt she was being accused, and I am sorry for that because it was inevitably going to be part of the response. It had to be done for her child’s sake, but it must have been awful for her and I am very aware of that, but it did not cross that line.
MR COONAN: Dr Southall, that is all I am going to ask you in chief. There will be further questions to follow. Madam, that completes my examination in chief.
THE CHAIRMAN: Thank you. I suggest that now would be the time to take a lunch break, Mr Tyson.
MR TYSON: Yes, I am going to ask if the lunch break can be a little bit longer. I anticipate there are a number of matters which I have to resolve.
THE CHAIRMAN: How much time would you like, Mr Tyson?
MR TYSON: If we start at two thirty, I will not complete my cross-examination this afternoon, but I would like some time just to absorb today’s information before I start.
THE CHAIRMAN: That seems a perfectly reasonable request. We will adjourn until two thirty. Professor Southall, you are still under oath.
THE WITNESS: Yes.
(Luncheon adjournment)
THE CHAIRMAN: Mr Tyson?
MR TYSON: Madam, I am very grateful for the time the Panel has given me to deal with some matters.
Cross examined by MR TYSON
MR TYSON: Dr Southall, can I just explain to you the way I am going to approach this, which will broadly be the way you were taken through your evidence in chief? The first major area which I am going to cover with you is the question of SC files. Then we will go into the questions of how they apply to individual patients, and then we will come to the individual patients themselves.
A Fine.
Q Can I start by seeing what we can agree on? Can you agree that you have now given to the Panel four rationales for putting material in a SC file? Perhaps I can go through the four with you. The first is for the storage of psychological data obtained on children, i.e. the tapes of prints out and things like that?
A Yes.
Q You told the Panel that effectively you needed that data in there rather than in the hospital medical files for two purposes: firstly, for the clinical care of the child who was having the psychological recordings of them. That would be when the child was in hospital or if it was on home monitoring?
A Yes.
Q Secondly, you said that you needed these files for the purpose of clinical audit?
A Yes.
Q The final reason that you gave us was for child protection work?
A Yes.
Q Can we just examine these individually for a moment relating to the storage of specialist data per se?
A Yes.
Q Professor David said - and I hope you would agree with him - that this was all right subject to a number of provisos. Firstly, that all reports that you created went on to the hospital file.
A Results of recordings?
Q Yes?
A Yes.
Q That would include two different matters, would it not? It would be the reports of the eight hour or 12 hour monitoring?
A Yes.
Q And it would be the discharge report?
A They are pretty well the same, yes.
Q Those were the matters, if I can use the shorthand, that the Jawad letter was referring to?
A Yes, it is.
Q Just for the benefit of the Panel, perhaps, because you and I know these documents a lot better than the Panel, can we look, please, at C3 at 7D(i). This documents relates to computer sheets, but there is no real difference between the computer and the paper. Would you agree?
A I agree.
Q We can see it says,
“… it was agreed that all the cases admitted for overnight monitoring 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.”
The computer sheet there referred to, with the possible diagnosis and recommendations, is equilivant really to a discharge summary, is it not?
A It is agreed, it is equivalent. It is as a result of the recording because the main issue was the overnight recording.
Q I would say that the body of the type relates to what I call discharge sheets. That is effectively what they are saying, “We do not require discharge summaries because we are quite happy with the copy of the computer sheet.”
If we look at the manuscript, does that not deal with the question of recordings separately? I think you told the Panel earlier this is in your writing.
A It is in my writing. What I meant was that all overnight monitoring recording results should go into the hospital notes. That is what I meant.
Q A copy of all the overnight monitoring recordings - that is what it says?
A Yes.
Q Must go into the hospital notes?
A Yes.
Q So hence the distinction I am making that there are two kinds of matters which must go in those notes, firstly, the overnight recordings, the six/eight hour monitoring and the final report or discharge summaries?
A Sometimes they were the same thing. If it were just a short one-night admission, they would be the same. If it was something like Child H, it would be that plus a full discharge summary, such as Dr Bush, I think it was, wrote.
Q In principle, the fact that you were doing this specialist work, the hospital records does not want to be lumbered with your great print outs and the like?
A No.
Q But provided that the reports of those are on the hospital notes, and the reports of the overnight recordings are on the hospital notes, there is no dispute between us?
A No.
Q That is the first proviso about the storage of specialist data. The second proviso which Professor David put, and I wonder whether you would accept that. We know you had all these activity sheets?
A Yes.
Q For either nurses or, indeed on occasions, for parents. Is that right?
A Yes.
Q Write down what was happening to the child at given time.
A Yes.
Q Would you accept Professor David’s analysis that provided those sheets say nothing over and above what is on the existing nursing Cardex, they can remain where they are, as it were, in the SC file?
A Yes.
Q Would you accept that if they do say matters over and above what is in the Cardex, those notes should be in the hospital records?
A Yes. If there is anything substantially important that is on one of those charts that is not on the notes, it should be in the notes somewhere.
Q Yes. You say at one point that it was agreed that SC files should be held at the Brompton. Can you help us as to when it was agreed that you should have these files at the Royal Brompton?
A Not in a chronological sense, a proper one, no. It evolved during the 1980s, but I cannot give you a date when an agreement was made. I have no record of that.
Q Who would you have agreed it with?
A My colleagues perhaps in meetings. Managers, perhaps, especially if it was extra-contractual referral work which it was at some period. I cannot remember when it started.
Q You say administrators perhaps. It is a point I will come to later but can I just draw a line in the sand now? There is a problem in that the administrators at the Royal Brompton were completely unaware of the existence of these SC files.
A The problem is time, is it not? We are talking the 1980s and early 1990s. It is a long time ago on anybody’s calendar.
Q Let us deal with – I have dealt with the fact generally that Professor David concedes that it is possible for you to have these separate files with your individual recording subject to those two caveats – you saying that access was required to these documents for clinical care seven days a week 24 hours a day.
A Yes, in some cases that would be the case.
Q But if that was a reason for keeping the SC file, that would only be a reason why the child was actually an in-patient.
A No, because these children went home on monitoring systems and event recorders. If, for instance, on a Sunday somebody rang up our team on call and wanted access and wanted to look it up, they would need to be able to do so.
Q I will go along with you so far, that they were required whilst the child was still under your care in some way, either as an in-patient or if they were on some sort of home monitoring.
A Correct, that is a good way of putting it.
Q The home monitoring would last, I suggest to you, a matter of months after any in-patient admission.
A It varied. I mean, usually that would probably be a minimum up to a year.
Q Let us say I will give you the year. After that, when you were under active clinical care, there would be no reason at all, would there, for you to have 24 hour access seven days a week?
A Suppose it was a baby; the baby was monitored, problem resolved and monitor discontinued, that is the end of it clinically. The child no longer needs our attention clinically.
Q In those circumstances there was no need for retention of an SC file and all the material could go to the hospital medical records. You did not have to keep it separately, did you?
A We did not have to, but for clinical audit purposes the fact that we had it all together was useful.
Q I will come on to clinical audit. Can I just deal with these files and the numbers of them for a moment? Child H was at the Brompton in 1989.
A Yes.
Q By that time the number of the SC file for Child H was 2026.
A Yes.
Q That was in 1989 and you had already reached 2000 by then.
A Yes.
Q Do we understand that there were 2000 separate SC files that you were holding and were personally responsible for?
A Yes. I think I must have mentioned 1000 before and that was wrong, there were many more, yes.
Q In February 1989 that is about two and a half years still to go.
A Yes.
Q Child B you dealt with in North Staffs in September 1993.
A Yes, that is right.
Q By that time we had reached 3424 files.
A Yes.
Q That is the SC number.
A I accept that completely.
Q Child D was December 1994 and we had reached 3874.
A Yes.
Q So when we look, as we did on those screen shots, later in the computer files at 4449, is that how many SC files you had at that time?
A I think that is probably the total by the end of the time at which we were holding special case files, yes.
Q You told us that you stopped some time in 1999.
A Yes, some time in 1999.
Q Is that not an astonishing amount of files to be holding on children of which the administrative departments do not seem to know existed?
A The North Staffordshire Hospital knew all about them. The Brompton hospital is a different time era and Mr Chapman did not know about them, I accepted that. But the managers knew about them at the time I was there.
Q Can I just flag up a challenge on that, but I will come to that in later times. Effectively, after the clinical care of a child was over and, say, in some of these SC files there was, in the majority I suspect, no child protection concerns, you kept these files, it appears, principally for what you call “clinical audit”.
A Yes, that is right.
Q You kept not only the files, but also the matters you held on computer for these children, again for the same reason, to have a database for clinical audit.
A And the tapes as well.
Q You gave us a description of clinical audit earlier. You indicated that it was, as you were doing leading edge work I think you described it, because you were trying to understand problems in children and you were writing up the results of what you were doing.
A Yes.
Q You were presenting these results in publications.
A And meetings.
Q And in meetings, and one of the matters that it was used for was to help district hospital paediatricians manage these kind of babies or children.
A Yes.
Q There are a number of things I want to put to you about that. First of all, do you accept that this is a wholly new explanation for the existence of SC files?
A The clinical audit?
Q Yes. No one had heard – I will be careful with this – any explanation that you have given before last week that this was a reason for holding SC files.
A That is not true. I am sure we indicated before we wrote some references describing audit work.
Q Let us go through C2 together, shall we, and your various explanations? Can you go to Tab 6? There are there three sub-tabs, (a), (b) and ©, which are the three times that we have been able to find as the times you have set out in documentary form any reference to SC files and what they might be.
A Yes.
Q The first one we see at (a) is the 1995 letter to Mr Chapman – we will come back to this in another context in a moment – and you say,
“We always kept our own medical records for all the special cases we dealt with at the Brompton Hospital”.
A Yes.
Q You did not there explain what special cases were. You just used the words, “special cases”, so no one could derive from that letter that they included what you described as clinical audit purposes.
A No.
Q Though you did describe them as medical records.
A Yes.
Q Then we come to Tab (b), which is a letter that you wrote to a business manager within the North Staffordshire Hospital. You say in relation to that child,
“I enclose his special case file so that you can look through it and decide how you describe the various contents of this. My view is that they are part of social services and other hospital records rather than being directly related to [the child’s] admission to the North Staffordshire Hospital under my care as consultant paediatrician”.
A Yes.
Q Do you accept that there is no explanation there that your view included that they were important for clinical audit reasons.
A No, it did not.
Q Finally we come to the long letter which was written on your behalf on 24 January of this year? Can we come to page 12 at the bottom paragraph where we see that it says,
“Thus, Professor Southall used Special Case files in two situations:
1. To keep documentation relating to the specialised monitoring children that he was undertaking. 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.
2. To store confidential documents relating to child protection issues”.
There is no third there, is there?
A Not in this letter, no.
Q Saying, “We needed them for clinical audit”.
A I have made several further advances on this, if you like. I think the reason is that they have not been made available to the hearing, but in upgrades from January I have been putting references in to the clinical audit part of the work. So there is a document like this, but not in this.
Q Nothing that has been produced to us to say that a third purpose, apart from specialist monitoring clinically of a child and child protection purposes, is clinical audit.
A That is correct.
Q Can I suggest to you that one possible reason for that is that in fact what you describe as “clinical audit” is that it is more properly described as research?
A That I cannot agree with you on.
MR TYSON: Can we examine, please, a document together? I would ask for this to be the next C document.
THE CHAIRMAN: It will be C14. (Document handed)
MR TYSON: You see that this is a document which says, “What is Clinical Audit”?
A Yes.
Q It appears to be produced by the UBHT Clinical Audit Central Office. We see from the bottom of the first page that it is produced by the UBHT.
A Yes.
Q Would you accept from me that that is the United Bristol Hospital Trust?
A Yes.
Q You see that it is entitled, “What is Clinical Audit?”
A Yes.
Q It is stated in the first paragraph,
“In this guide we look at what clinical audit is, and the similarities and differences with research and other forms of audit/evaluation”.
It indicates,
“These disciplines have much in common, which can lead to confusion when planning a project”.
Can I take you first to page 4 of six pages? Can I take you to some propositions where it says, “Clinical audit versus research”?
A Yes, I can see that.
Q We can see that there is, first of all, a quotation from R Smith in a 1992 BMJ article where it says,
“Research is concerned with discovering the right thing to do; audit with ensuring that it is done right”.
A Yes.
Q It goes on in this document to say,
“Research is about creating new knowledge about what works and what does not. It provides the foundations for national and/or local agreement about the kind of clinical treatment and care we should be providing; i.e. it helps to answer the question ‘what is best practice?’”
Do you agree with that?
A Yes.
Q Then it says,
“Clinical audit asks whether we are doing the things that we have agreed we should be doing or achieving the outcomes that we have agreed we should be achieving; i.e. it answers the question, ‘are we following agreed best practice?’”
Do you agree with that as a definition?
A I agree with that as it is written in 2005, which is what this document is all about. Just like everything, there has been an evolution in thinking about this. In the 1980s, we were doing both research and what I called “clinical audit”. Research required research ethics approval. Clinical audit involved documenting clinical cases and writing up what we were finding. They are completely different.
Q But what you are finding is that you were giving advice on best practice to others, including other hospital trusts?
A Yes, I am not denying that now, what we were doing then, would be, in this same terminology you have got here, and in fact issues that most doctors at that time in tertiary centres were doing would now be called research, but were then called audit, or clinical audit, and did not require research ethics approval at that time. Things have changed, that is the issue.
Q Can we move on to the next page, page 5. You see that there is a heading:
“The interface between Clinical Audit and Research”,
and do we see in the box:
“For example, Research might ask:
‘What is the most effective way of treating pressure sores?’
Clinical Audit would then ask:
‘How are we treating pressure sores and how does this compare with accepted best practice?’”
Do you accept that those are a useful example, as it were, of the difference between research and clinical audit?
A So we could put in there some of the things that we were doing, like: What is the most effective way of treating and investigating apnoeic episodes? In other words looking at, say, a research project where you took a group of patients and tried different techniques – a trial, if you like. The other would be to look at how we were treating patients with apnoea and how does it compare with previously documented ways of treating it. This is all very good, I am not denying any of this, but this is thinking in 2005 and not the 1980s.
Q Let us read on, shall we, before I ask you some particular questions about this. Can we read together “Evaluating New Services”? It says:
“The scenario: you have implemented a new system of working in your clinical area and you naturally want to (or have been asked to) evaluate whether it is a success – is it achieving what it was intended to?
Is this Clinical Audit or research? These projects have often been done under the guise of clinical audit, measuring adherence to the new way of working and/or comparing outcomes before and after implementation, and certainly clinical audit methodology is useful in this work. However, evaluation work does fit definitions of research, as you are creating new knowledge about this way of working, and discussion is ongoing at both a local and national level about the correct process for such projects. The current recommendation is that if the results of a service evaluation project are to be used to influence practices or processes outside the immediate setting (i.e. published as new knowledge about this area, rather than solely for the use internally to monitor or improve practice), this should be treated as research.”
A Fine, I agree with that. That is current thinking.
Q It was also, I have to suggest to you, the thinking all along the line, that here you are, you are creating a database of nearly 4,500 people and you are using this database in order to publish outcomes and to tell the world, both in published form and in discussion, about the correct process and ways of working with these kind of children. That is classic research, is it not, Dr Southall?
A You can use that word now. I think that what we were doing was the right thing, which was to publish our results to help people try and treat and manage these problems better than they had in the past. That is all we were trying to do. If it was research though we would have had to have had research ethics approval.
Q Precisely.
A And we do not, and did not consider that, say, writing up 20 cases of Down’s Syndrome with upper airway obstruction was a research project. It was a clinical audit project in those days.
Q You needed two things, did you not, that I am suggesting that you did not have. First of all, you needed ethics committee approval?
A Yes.
Q And, secondly, you needed parental consent?
A We had parental consent by virtue of the fact the child had been referred to us and we were doing these investigation to help their individual child get better from whatever the problem was.
Q Are you saying that the fact that they arrived for monitoring gave you implied consent to publish findings about that individual child?
A Always data is anonymised and in fact this whole area that you are raising was actually tested in the Brompton in the late 1980s, because reservations were raised about something we were doing which some people thought was research and other people thought was clinical audit or clinical practice. That was covert video surveillance. There was a lot of discussion along these lines at that time about that: Should we need research ethics approval to do covert video surveillance, for instance? It came back from the research ethics committee as: “It’s okay to do it, as a clinical exercise to help each individual”, but of course then to write it up later to help people manage child protection issues.
Q Just going back, are you saying that any patient who arrived at your hospital for overnight monitoring, automatically, by the mere fact of such arrival, gave consent to be included in your database for you to use the material from such child in publishing your studies and in discussions with other colleagues externally?
A At that time that was standard practice throughout the NHS that I know of with regard to tertiary centre hospital care.
Q I have to suggest to you that you are wrong about that, Dr Southall, and one of the reasons I rely on that being wrong is that you have never, until three days ago, told this side, or in any documentation, that one of the reasons for an SC file is clinical audit.
A I have been telling my solicitor this for a year and in documents, which are available if you want them. I am not blaming them for anything, I am just saying this is a fact and it is not a new idea to me in the last three days, I can assure you.
Q It is a new idea to the rest of us.
A Not to the Panel, because they heard from Mr Coonan when he was questioning me asking the reasons, and those are the reasons.
Q It was not suggested even to Professor David, when he was giving evidence about SC files, that clinical audit was one of the two reasons why these files were being held?
A One of the reasons.
Q One of the reasons, and so he never had an opportunity, did he, to comment on your clinical audit suggestion as being a reason for these files?
A I cannot completely remember, but I accept what you are saying is probably true.
Q Is your coyness in any matters relating to this as far as material available to the Panel until a few days ago related to the fact that you did not have either ethics approval or parental consent for such publication and use of the database?
A I do have to address those two points because they are extremely serious allegations and I do have to address them. If we, first of all, take consent, the reason children were referred to us was to try and sort out problems that the general hospital paediatrician was usually unable to sort out and in the process of investigating and treating those children we were doing our best, on each individual child, to do the best for that child to get them better from whatever the problem. That is not research. We are used to doing research; we did research as well. So, for instance, if we were trying to investigate a research aspect, say, of apnoea, we would seek consent and we would set up separate, different, or different files, research files.
A good example would be a randomised control trial on the form of treatment, which we did. That is where we needed research ethics committee approval. For this kind of work every single specialist hospital centre treating patients, like Great Ormond Street, say paediatric gastroenterology, every single one of their patients that they would then write up as a way of improving the treatment you are saying should have research ethics approval, and explicit research consent. That did not happen and I think that is an important thing to try and … You will have to ask other people, of course, but from my perspective, my opinion is that did not happen. We were all doing our best to treat individual children and learn from it and publish our results, and that is what we did and there is a list of publications in my CV describing that kind of work. No research ethics committee approval, and of course if indeed we had have needed research ethics committee approval the journals would never have published it without it. I think when you have a list of children, say, with Down’s Syndrome and airway obstruction, no research ethics approval. We would have been in real trouble if that was regarded as necessary.
Q Again, I come back to the issue of consent. Are you really saying that by mere arrival at your clinic that the parents are then agreeing to be part of a database of 4,500 children which you can extract the material from to prove or show the point that you want in guidance and evaluation to others?
A Hang on, we are losing the whole picture. The picture is we are trying to help make better ways of managing certain complicated conditions. Parents come to us knowing that we are the leading edge of, say, apnoea investigation. They know that because of the publications we have already made on preceding patients. If it was a case report, for example, or one or two cases, in those days even then one would not ask consent, written consent, to publish two or three case reports as long as they were anonymous. Now things are completely different and I think we have to be clear that this is then and now.
Q You would accept, would you, and go this far – because I think you have accepted – that the position I put in the paper C14 which we have discussed would describe that which you had been doing since you started the SC files as research?
A But it cannot, because it cannot historically look back. If we now, in 2005, started to do the same work as we did in 1980, we would adopt this approach. We did not have this approach then.
Q That is the simple point. You would accept that now it would be defined as research?
A It could be, yes. It might be. The way things are now it is much tighter with regard to what is research and what is clinical practice audit.
Q I just merely put a marker down that it would then also be described as research?
A Then?
Q Yes. This is a database you still have, is it not?
A No, it was stopped in 1999.
Q But you still have the database?
A Yes, the material is still in the computer and in files.
Q And it is still being used, is it not, I think you indicated by your colleague,
Dr Samuels?
A No, he started a new set after he came back. This set we are not using at all at the moment.
Q So there is no reason whatsoever to have anything on computer since 1999 relating to these children?
A It is sitting there. You could destroy it; you could put the special case files into all 4,400 medical records. You could. There would be problem from our point of view in doing that. I just did not and would never throw away clinical data.
Q If you say you stopped using it from 1999 and if there are no child protection ongoing concerns, no ongoing clinical concerns, you are not using it for clinical audit, why still have al these files and all these matters on computer in 2006?
A It is a good question. I cannot adequately answer it except that I know with medical records they are kept until a child reaches adulthood and there may be, in some of these files, medical information of value when the child grows up or when the child gets older. If somebody wrote to me, say from Barnsley, and said, “In 1995 you looked after this patient and now this patient has developed X disease. Could you look back at your files?” we would. So it is possibly valuable, but I am not making a huge thing about it.
Q The problem of accessibility. If no-one knew that you were holding 4,500 files, then they would not know to write, would they?
A Yes, in that case I gave you, if the paediatrician or doctor in Barnsley had had his patient treated by us in 1995 he would know that we had looked after the patient and we could go to both the hospital record and the special case files to help him or her in whatever they wanted to know.
Q Let us move on to child protection concerns and the hospital policy at North Staffs that we have been shown. Can we just look at it together, which is the 1997 document which we find in C3 at (d)(vi). Can we please turn to page 20 within that document. Before we do that, can we just look at the title of that.
“North Staffordshire Hospital NHS Trust
Child Protection Policies & Procedures.”
A Yes.
Q It is under tab (vii), and I apologise for giving you the wrong reference.
A Yes.
Q Can we go to page 20 of that document, please? First of all, can we look at the background and at 1.1, where it says:
“This policy should be read in conjunction with the following Trust Policies”,
and it makes a reference in the second bullet point to:
“Clinical Record Keeping (Policy No 10)”?
A Yes, I see that.
Q Are you aware through your solicitors that you have been asked by my clients’ solicitors on a number of occasions to produce Policy No. 10 and it has yet to emerge?
A I gather that is the case.
Q Professor David has been asking for that document also and he has yet to see it?
A Yes.
Q Can we look, please, at paragraph 2:
“GUIDELINES FOR DOCUMENTATION IN SITUATIONS WHERE TO INFORM PARENTS COULD JEOPARDISE THE CHILD’S SAFETY.”
Presumably this deals with an in-patient situation. Does it?
A Probably mostly.
Q At paragraph 2.1:
“Where there are concerns regarding Child protection issues and a decision has been made in the interests of the child’s safety not to inform parents …”,
and there are two bullet points and can I take you to the bullet point on the top right-hand side, please? It says:
“Staff must …
record concerns on a separate sheet of paper which should be stored with the medical notes in a separate folder and must be signed and dated (Note these should not be kept by the bedside).”
So the implication there is even when there are current child protection concerns, these matters should be kept with the medical notes. Is that right?
A Yes, that is what it says.
Q “In areas where consultants have agreed that the medical notes are kept by the bedside.”
Just pausing there for a moment, is this is the policy in the paediatric wards to which you had admission rights?
A Not really, no.
Q I need not deal with that issue. Then recorded in the medical note even when there are current concerns, albeit on a separate sheet of paper. Paragraph 3,
“Guidelines for documentation where parents have been informed of child protection concerns.”
Then 3.1:
“Where parents have been informed of concerns regarding child protection staff should record all the information in the nursing or medical notes as appropriate”.
A Yes, that is correct.
Q So it appears to be the policy at North Staffs, even where there are ongoing concerns, that all these concerns should be recorded in the hospital medical notes?
A This is 1997 first. Mostly, these guidelines, which I was involved with, are for local patients attending the hospital. It is estimated between 10 and 20 per cent of patients coming to the hospital will have child protection concerns. The hospital was fully aware of our tertiary referral practice and the fact that we kept our child protection concerns in the special case files.
Q I have to suggest that there is nothing in this document that indicates that there is any special ‘Dr Southall let out’ in here. This is a protocol for the whole of the Trust and it deals specifically with child protection policies and procedures. I have to suggest to you that this is the policy of your Trust, and the policy of your Trust does not cover the existence of special case files for child protection issues.
A As I have said, this is a different group of patients. It is the local patients.
Q It does not say that, does it?
A No, it does not say that, but this I think it is meant for.
Q It is to deal with all patients that come to the hospital, surely, where there are child protection concerns?
A Yes, it is, but it is general guidance, the phrase is ‘general guidance.’
Q With respect, Dr Southall, it is not general guidance, it is mandatory. Let us look, please, at 2.1,
“Where there are concerns regarding child protection issues and a decision has been made in the interests if the child’s safety not to inform parents, staff must” -
not “staff may” or “staff should”, it is “staff must”. This is mandatory.
A As I said, this is for local patients coming in with child protection problems.
Q I have to suggest that caveat of yours is nonsense, Dr Southall.
A I have to draft this, so I do not think it is fair to say it is nonsense. Remember that this is 997 and these developments were going continuously forward all the time to improve the situation. In fact, there are guidelines for 2006, which are different to these, which are about how to look after records, which are a great advance on these.
Q The principle is in here, is it not, but I need not take it any further because the point is made. National practice also is that there should be a central group of files and matters should be on the hospital records concerning child protection should it not? I have dealt with the local guidance, but now can I go to national guidance. Can I suggest to you that national guidance is to the same effect, that child protection concerns should be recorded in the hospitals medical notes?
A Now, yes, definitely.
Q It was mentioned to Professor David about the Climbie Inquiry?
A Yes, that is right.
Q Can I put to you various recommendations of the Climbie Inquiry, and can we go through those together. Perhaps this can be the next C number, which I anticipate will be C15.
MR COONAN: I am sorry to interrupt. I do not mean to be unhelpful. I think if the witness is going to be asked to deal with a document, it is fair, I would suggest, that he knows the provenance of it in terms of date. It well be that we have a copy of the original copy filed back stage, but I do not have it in the chamber.
MR TYSON: Let us say it is 2005/2006. You are aware of the Climbie inquiry?
A Yes. I do think it is quite that late; I think it is about 2003 or 004, something like that. Is this not the same problem that it is after the cases we are dealing with? The last case that I am involved in here is 1994.
Q Can we just go through the guidance together? Can you look, please, under the guidance for “Healthcare recommendations” at page 378 and if we can go, please, to paragraph 68? The paragraph number is rather bizarre and I have not quite mastered it. Under “Recommendation 68” which is the third recommendation. on the second page of this document. It says,
“When concerns about the deliberate harm of a child have been raised, doctors must ensure that comprehensive and contemporaneous notes are made of these concerns. If doctors are unable to make their own notes, they must be clear about what it is they wish to have recorded on their behalf”.
That reflects good practice now, does it not?
A Absolutely.
Q And good practice at all material times for those involved in child protection matters?
A That is what we try to do.
Q And have always tried to do?
A Yes.
Q Next, “Recommendation 69” which reads,
“When concerns about the deliberate harm of a child have been raised, a record must be kept in the case notes of all discussions about the child, including telephone conversations. When doctors and nurses are working in circumstances in which case notes are not available to them, a record of all discussions must be entered in the case notes at the earliest opportunity so that this becomes parts of the child’s permanent health record.”
That is good practice now, is it not?
A Yes.
Q And it has always been good practice?
A Well, that is the thing. This is an evolution. The Children Act came in 989 and there were developments. I think it is only fair to keep repeating that the last case I am being addressed on here was 1994, and this is now 2003.
Q That is not quite right; Child B was after that.
A Child B was 993, I think
Q Yes, but material held on Child B was after that; indeed, material in the SC files go up to 1998?
A No, that is follow up correspondence. When these children presented to us, it was 1993 for Child B and 1994 for Child D if I am right. I will have to check, but I am pretty sure I am right about that.
Q That is when the admissions were, certainly?
A Right. Follow up of course is a different issue. That is just being a little bit unfair about this. We have been involved in the development of these guidelines. Dr Samuels and I were instrumental in putting together the trust guidelines on how to look after notes as a result of how we learnt about the best way of doing it. To go to 1994
Q The best way of doing it is, and I suggest to you always has been, that as we go back to Recommendation 69, that everything must be kept in the case notes as part of the child’s permanent health record.
A That is how it is now. With the benefit of hindsight, that is how it should have been 50 years ago when it was first discovered that there were child protection problems. Okay; I accept all of this, but we have to look at how this evolved. I do not think it is fair to just jump on this and say, “This is what you should have done because that is what it says now and it is obviously the best” which it is; I do not dispute it is the best way.
Q It goes back further than that, and I will come in a moment to point out some of the observations of Professor David in his report. Those dealing with child protection, which you have been for a very long time, have always known, have they not, that sharing information between agencies is incredibly important?
A Absolutely, and we have written about it.
Q And keeping records within any one agency, in this case the hospital, one set of records is very important otherwise things get missed?
A The most important thing is communication and we always strove to provide goods reports, I think you have seen the medical reports I have produced on the cases in this hearing. I think they are comprehensive. We shared them. We had strategy planning meetings. We initiated child protection inquiries when everybody else was finding it difficult, so I do not see
MR TYSON: I am not saying that you are not pro active.
MR COONAN: Can you let him finish the question?
THE WITNESS: Actually, I had, to be fair on Mr Tyson.
MR TYSON: I am not saying that you had not been pro active in finding child protection concerns. As you are aware, in certain circumstances, that has been a complaint about you, that you have been too pro-active on occasions. The point I am talking about is records. This is the guidance that I suggest to you has always been that all child protection matters should be on one set of hospital medical records.
A How can this always have been when it was published in 2003?
Q Because it is just reflecting current practice.
A No, it is reflecting evolved practice, and I think this is the key. We get better and better all the time at how we manage medical and social problems. That is good. This document is an attempt to try and make it better.
Q Finally, before I leave this document, can I take you to Recommendation 78? It says,
“Within a given location, health professions should work from a single set of records for each child.”
That simple set of records, Dr Southall, is the hospital record, is it not?
A Well, I think still many children’s units keep their child protection records separately from the main medical file for confidentiality reasons, but there are hazards in that, as there are hazards the other way. This is all very much still evolving, but I agree in an ideal world this is the way forward.
Q We will just have to differ about whether it is the way forward or whether it has always been the practice. There is no document that you can produce that indicates that it was good practice to have separate records kept separately about child protection matters. There is no guidance, there are no protocols, either nationally or locally that that is what you should do.
A I think that you have heard from one expert on your side, Professor David’s view, and he is entitled to his views, I think that if you had a dozen child protection specialists up here, given their views, you would have a completely different picture about what they think. Now, of course, that is only my opinion too, because I have on opinion on this. It is a matter of opinion still.
Q Dr Southall, I will cut across you and ask you to answer the question. Is there any document, protocol, or the like, upon which you rely to show that nationally there should be separate hospital records where there is a child protection concern?
A There are documents on factitious induced illness which draw attention to the danger of having material in the main accessible hospital file which talk about the ways of linking child protection files to hospital files to ensure that everybody knows they exist. That is therefore, if you like, a formal of policy along the lines you are talking about. The North Staffordshire latest policy discuss this, showing how you link the child protection files to the hospital file, the main medical file. So you could argue there are policies that support separate record keeping in existence.
Q You assert this, but you have not produced any to support your stance.
A They are available. No, we have not as yet, but they are available.
Q I have to suggest to you that the stance that you have taken that one must keep records when there is a trace or a smell of child protection away from the medical records is simply not justified by any policy that you can produce or is available to us?
A The policies you produced are afterwards. We did produce the 1997 one, but I still think that the way we were doing it was completely reasonable and justified and was minimising the risks of a breach of confidentiality to the family and a good protection system for the child. That is our opinion. It was our opinion then. I still maintain it was reasonable now.
Q But medical records are of themselves, per se, confidential, are they not?
A That is a very good question because I have been around in hospitals a long time and I have seen medical records sitting around in car parks, in entrances to hospitals unguarded in heaps, where anybody can look at them. Lately the situation has improved enormously but in the past medical records were not adequately, in my view, secure and properly looked after in general.
Q Just one final matter on this. Can we turn to your final explanation that you gave us about SC files, which is in C2 at 6©? This is the last document within the whole of C2 and we come back to the Hempsons’ letter. Can we look, please, together at page 12? Look at the first main paragraph where it says,
“Where Professor Southall started dealing with child protection cases” –
do you see that?
A Yes, I do.
Q “He set up a protocol at the Brompton Hospital and then at the North Staffordshire Hospital regarding how he would deal with the confidential documents that arose in child protection proceedings. Whilst it was agreed that in the normal course of events all documents relating to a patient should be filed in the hospital records and be available to the parents, it was considered that this was not appropriate where there were child protection concerns”.
I have a number of questions arising out of that. You have been asked through your solicitors, have you not, for copies of the protocol at the Brompton Hospital there referred to and a copy of the protocol at the North Staffordshire Hospital there referred to?
A The protocol was not written. It was a policy.
Q So you are relying here on an oral policy as opposed to a written protocol, is that right?
A Yes.
Q Are you aware that there is, to use a phrase that has been used, an audit trail of the correspondence between solicitors where these protocols that you there mention had been sought by my solicitors? Are you aware that there have been a number of requests by my solicitors for the protocols here mentioned?
A I am not sure. I may have seen correspondence, I cannot recall, but it does not mean it did not happen.
Q Are you aware that there were a number of requests made by Field Fisher Waterhouse for these two protocols?
A No, I do not think I was aware that they had been looking for written protocols, because there were none.
Q Are you aware that Professor David was asking for these protocols? Can we look, please, at C3, 7(b)? Look first at page 48, paragraph 91. I will read it to you,
“The second paragraph on page 12 of Hempsons letter of 24 January 2006 states that there was a protocol both at the Brompton Hospital and at North Staffordshire Hospital regarding how one should deal with confidential documents that arose in child protection proceedings. Apparently it was agreed that in the normal course of events all documents relating to a patient should be filed in the hospital records and be available to parents. It was considered that this was not appropriate where there were child protection concerns.
92. The first point is that it would be very helpful if I could be provided with a copy of these two (Brompton and North Staffordshire) protocols, referred to in the Hempsons 24 January 2006 letter, concerning how one should deal with confidential documents in child protection cases”.
A Sorry, these were unwritten protocols, so he could not have them.
Q Would it have been helpful for that to have been communicated to us before now, rather than our having to write endless letters asking for the protocol?
A Yes.
Q Would it not have been helpful, when Professor David was cross-examined, for it to be suggested to him that he should not be having to look because these are unwritten protocols?
A I apologise for that. I mean, these were unwritten. I am sorry if it took a lot of effort unnecessarily.
Q The implication from what you said is that they were written. I mean, the word “protocol” implies a written document.
A Okay. I am not sure. Anyway, there were not. They were unwritten. They were policies not written.
MR TYSON: Can we move on to medical records generally?
THE CHAIRMAN: Mr Tyson, I think we are looking for a short break.
MR TYSON: This would be a very convenient time.
THE CHAIRMAN: We will break now until quarter past, and were not planning on sitting beyond five as usual.
(The Panel adjourned for a short time)
MR TYSON: Dr Southall, before the break we were discussing rationales for you having SC files and we went through clinical audit, rationale and child protection rationale. Can I turn now to a related but separate subject, which is the integrity of medical records in general?
A Yes.
Q Can I take you, please, to aspects of Professor David’s first reports to see what you can live with and what you cannot? Can we go to C3, Tab 7 at (a)? Turn, please, to page 227, just a few pages in. Can you live with paragraph 355, that,
“In the context of this report, a record is anything which contains information (in any media) which has been created or gathered in connection with a child’s illness and referral to hospital”?
A Yes.
Q Can you accept that “any media” also includes, of course, matters held on computer?
A Yes, it does.
Q I will not trouble you with paragraph 356, but can you read it and indicate whether you accept that the term, “hospital medical records” includes all the items in paragraph 356? (Pause for reading)
A I have read that, yes.
Q Just so we can be clear, when I refer to hospital medical records I am including all those matters.
A When I refer to it I mean special case files and the hospital main medical records. That is how I look at it. So when I am reading it I am thinking all of this should be in both – not both together, but somewhere they should be.
Q Because you will note that one of the matters that should be in hospital medical records are, for instance, handwritten and typed correspondence both sent and received.
A Exactly, I saw that first.
Q Is that the phrase that loosed a slight warning shot across your bow?
A Sorry, it shouldn’t have done that. But basically, yes it is. I agree that the hospital records should include handwritten notes and I would not throw them away.
Q Can I take you further on to page 230, paragraph 361? This is the Department of Health circular guidance.
A Yes.
Q Though it dates, as I readily accept, after the material time, or some of the material time, can we just see whether you agree that the general principles here set out are of universal application throughout time, as it were? Looking at 4.1 for the moment, the first paragraph,
“Records are valuable because of the information they contain and that information is only usable if it is correctly and legibly recorded in the first place, is then kept up to date, and is easily accessible when needed”.
Do you agree that that is a proposition of universal application?
A Yes, I do.
Q Looking at those items in 4.2,
“Good record keeping ensures that…those coming after you can see what has been done, or not done, and why”.
Do you agree that that is a matter of universal application?
A Yes.
Q Another reason for good record keeping is in the fourth bullet point,
“any decisions made can be justified or reconsidered at a later date”.
A Yes.
Q Over the page it indicates in 4.3 some of the reasons why access to the medical records might be required. You see the list of matters at the top of page 231.
A Yes.
Q Records might be required to provide patient care.
A Yes.
Q To deal with aspects of clinical liability.
A Yes.
Q Aspects of parliamentary accountability.
A Yes.
Q For purchasing and contract or service agreement management.
A Yes.
Q For financial accountability.
A Yes.
Q For disputes or legal action.
A Yes.
Q Legal action, in the context of cases that we deal with, comes into three possible categories, does it not? Medical records might have to be referred to and required if a criminal prosecution results as a result of what you have learnt or report.
A Yes
Q Equally and separately, there may be care proceedings in the family court relating to whether it is safe for that child to remain with the carers against whom allegations are made.
A Yes.
Q A third category of legal matters is if the patient or, in these cases the patient’s parents, may wish to have advice as to whether the trust or any clinician within the trust has been negligent in the care of their child.
A Yes.
Q So legal dispute covers those three separate and distinct matters. Is this also, do you accept, a universal matter, that if any of those three kinds of legal dispute arise, it is vital that all the medical records are made available to the requester?
A Provided there are not issues surrounding harm that could be done to anyone, in the case of a child, family members or where there is patient confidentiality issues relating to child protection.
Q I am not dealing with subject access requests for the moment. I am dealing with if there is a legal case involving them.
A If there is a legal case, the lawyers can decide what to do with the material, yes.
Q And all the material, in those circumstances, must be disclosed.
A Again, if for instance it is not your material to disclose, you cannot disclose it. Even if a lawyer asked for it, you would have to ask them to ask social services, for example. I may not be able to release it or give permission for it to be released. It might be that they have to go and talk to social services.
Q If there is a third party origination, as it were; if there is a letter coming from a third party like a social services department.
A If they apply, of course, yes.
Q But in, for instance, care proceedings, with which you are familiar, there is universal disclosure of all relevant medical records relating to the child, is there not?
A During care proceedings, definitely.
Q And issues of confidentiality no longer apply because, to use a phrase Professor David used, the cat is out of the bag as it were; the parents know that they are being accused.
A That is not the reason, I do not think. If there is a family court action going on and there is a need to disclose medical records, then a GP or a hospital would not refuse or be able to refuse the court. But it is not because the cat is out of the bag. It is because this is going to be needed to make sure all the information is available.
Q The point I put to you is that you cannot rely on confidentiality as an excuse not to disclose records to the court.
A No, I agree with that, yes. That is different.
Q So in any court proceeding, the court, in order to make an appropriate decision, needs to see all the medical records.
A Yes.
Q And medical records include material that you have been keeping in your SC files.
A Yes. If any family court wanted access to our SC files, it would be automatically granted.
Q The comment to that – I will come to it in more detail later – is that it would require the requester to know of the existence of an SC file in the first place, would it not?
A Yes.
Q Because in these cases there are numerous requests which we have seen, which you have said, “Yes, I agree you can have the medical records”, but what has resulted in your agreement has merely been a hospital medical record being produced and not the SC files.
A Hang on, you have moved from the family court wanting records for child protection purposes to a different line of request altogether, which is to do with litigation, not litigation about the child’s care but about the family’s care – in this case the parents objecting to the way I behaved. Again, I have no problem with disclosing that material through the right sources, through the right agencies, and with the permission of social services.
Q The right agencies include the parents’ lawyers?
A Not necessarily the parents’ lawyers. I think it would include the hospital lawyers. If the hospital lawyers asked me for something, that is different to the parents’ lawyers asking me for something, because the child is my patient, not the parent.
Q If the parents have parental responsibility for the child they are entitled, in order to either contemplate suing the hospital or to take a second opinion on the advice they have received, to see the entirety of their medical records, are they not?
THE CHAIRMAN: Mr Tyson, I think we have got some difficulties with hearing. Could you speak up? Thank you.
MR TYSON: (To the witness). In the circumstances that I have outlined where there is a request in contemplated legal proceedings made by someone with parental responsibility for a child, and their lawyers, for consideration of potential action, you are not permitted, are you, to deny access to all the medical records?
A I would not release or not release. Under those circumstances where the patient is the child and the parents may have had a complicated history with regard to it, the way forward would be to pass that request on to a lawyer representing the hospital and ask them to deal with it and see what they said.
Q In the circumstances of this case – and of course I will come back to this in more detail, I will just deal with the global – it is the other way round, is it not, that the request for patient records has been made by lawyers for (and let us put it globally) the family and that has come not to you but come to the administration within the hospital, who then ask you and you say, “I agree”, when they are asked for the medical records of the child?
A Yes.
Q The problem being that your agreement does not include those lawyers getting access to the SC files?
A I think we went through this earlier. My understanding is it is very complicated, this, and it depends what was being asked for. If they were asking for the recordings, then I provided them. If they were asking for the special case file, having found out that we had it, then they were provided with it, or those bits of it that I could provide. I cannot recall this, but I am sure that I would have checked, because disclosing of records is not straightforward; it is complicated.
Q Again, I am not dealing with subject access request, where there is legislation. I am just dealing with access to lawyers contemplating proceedings.
A Yes.
Q I suggest to you as a general proposition that you have to give access to all the medical records?
A If it is through the hospital lawyers then yes, I accept that.
Q But even if it is not through the hospital lawyers, if it is a request by your administrators, the Mr Chapmans of this world, who say, “I have had a request for all this child’s medical records”, it is impermissible for you , is it not, to not inform the Mr Chapmans of this world that you have files which you are withholding?
A I did not withhold them.
Q Or files which he was unable to disclose pursuant to his duty of disclosure because he had no idea that such files even existed?
A That is an issue that I agree is related to the history of the matter. Mr Chapman was not involved with the transfer to the Brompton – from the Brompton to Stoke, sorry – so he did not know that we had the special case files. So, it is difficult then.
Q We are going slightly off piste. Can I bring you back to C3 and Professor David’s report. We were at page 231 and we had just dealt with the bullet point above 4.4.
A Yes.
Q Can we just now deal with paragraph 4.4, which indicates that it is vital that you always record any important and relevant information, making sure that it is complete. Would you agree with that as a matter of universal application?
A Yes, I agree with it. It is an aspiration though because nobody can ever record everything that is vital. They do their best. So, you know, in the real world people do their best to record everything that matters, but of course occasionally they will not. They do their best.
Q It is also vital, to use the circuitous wording and deal with the third bullet point, to put information where it can be found when needed?
A Yes.
Q Do you accept that is a matter of universal application?
A Yes.
Q If you were to keep a separate file with relevant and important information, it is important, is it not, that one can trace the fact that there is such information elsewhere?
A I think we had a very good system to do so, I really do. I think that the nurses and the medical profession were able to access clinical date from us probably quicker than they could most other systems and it was available 24 hours a day, seven days a week.
Q Whilst the child was an active patient of yours, if I can put it that way?
A And afterwards. I still think that as long as they knew that we had the special case file records – I accept that point, as long as they knew – then we had a system that we could access, say a child coming from Northumberland in 1998 with a heart problem. We would find that record within minutes.
Q I am sure that your database was extremely efficiently put together, but the difference between us, and the issue in this case, or one of the issues in this case, is when you use the words “if they knew.”
A I am saying that in the North Staffordshire Hospital everybody knew we had the special case file system for our tertiary referral cases. In the Brompton they knew. The problem we have is a time-based problem with moving from one hospital to the other with different administrators at different times.
Q Can I deal with it in another way? Under the subject of ‘it was vital to put important and relevant information where it can be found when needed’, the way to achieve that is, is it not, to put a note in the hospital medical records that there is a separate file?
A That is certainly a good way of doing it; I am not denying that. There were links in the hospital file – we went through those yesterday – showing that if you look through the hospital file there was an SC file number.
Q If you studied it with a microscope, but there was nothing in the hospital records in the Brompton that flagged up that there was a separate file held by your department?
A Not a tracer card or anything like that, no, there was not. No.
Q Equally, in the hospital notes that had been disclosed relating to the children in the North Staffordshire, there is again no tracer card on the notes saying there is a separate file?
A There is no tracer card, but everybody knew, the nursing staff and the medical staff.
Q I say that in your coterie, in your small group, everybody knew; that you knew, that Dr Samuels knew, that your secretary knew and your nurse who specifically dealt with this knew, and maybe even the odd doctor on the paediatric ward, but that is not everybody, is it?
A No. The senior nurses on the paediatric ward knew, the managers knew, and the important issue is the clinical care of the child. That is what matters. This is about childcare. The issues we have been talking about with regard to access have not been about child healthcare, they have been about litigation from parents.
Q But the issue I am talking about when dealing with the global statement by the Department of Health, is that they say that it is vital that important and relevant information is put where it can be found when needed?
A Agree, and I think you would ---
Q I think you also agree … Sorry.
A No, please.
Q I think you also agree that there is no tracer card in any of the Brompton notes and there is no tracer card in any of the North Staffordshire notes?
A No, what there should be in each of those records, as you know, because that was the policy, was a discharge summary recording result sheet which acted, if you like, as a tracer card for those particular patients.
Q How did it act as a tracer card if buried in all the material somewhere, written, if you were very perspicacious, was the word “SC”? How would anyone know what that stood for?
A You see, the thing is we are dealing with patients now. If a doctor, say a doctor from up north, contacts me and says, “You treated our patient as a tertiary referral patient” – these
are tertiary referrals, not local patients – “This is the patient’s name. Could you please let us have any records that you have got on that patient?”, automatically we would go to the special case and hospital file and provide them with both.
Q I can accept that if you were personally asked or someone within your department was personally asked, but let us take the example that you used later. A following clinician dealing with this child would not know from the hospital medical records in either case, would he, that there was an SC file?
A Right, this is the important point. The following clinician would not be involved in these patients because these were tertiary referrals to our coterie, as you put it earlier. They would not be referred, moved on to another group of doctors taking over from our coterie, so there would not be a situation like you have just described. Just as I said when we left the Brompton, all our work ended; nobody continued the work. If they had, all of this would be completely appropriate, what you are saying.
Q But there is no reason why the child could not come back to the hospital either with respiratory problems or any other problem. You gave a good example yourself the other day; there could have been a car crash outside your hospital?
A Yes, those were extraordinary return reasons, of course. In that situation you are right. If, in other words, a tertiary referral from Scotland is going past on the motorway and has an accident, ends up in our hospital in Stoke and has been previously under our care, if all our staff had left, all the nurses had left and the managers had left, then yes, there would be a potential problem in knowing about the special case file system
Q Or if the child came to be referred, the tertiary referral for another condition, say, a problem with the leg, or whatever, that clinician would not know when he called for the medical notes of the existence of the special case file?
A That is very unlikely.
Q I know it is unlikely.
A It is theoretical.
Q It is not necessarily theoretical, it is important, is it not, because you gave to the Committee the proposition that it was an acceptable basis not to file matters in medical records when you thought the child might not come back?
A The special case file records we have agreed are part of the hospital records. Everybody knew about them.
Q This is where we differ. That is your assertion. I do not agree with that.
A If everybody who knew about them was suddenly not there, everybody, and then the child comes back as a patient under another consultant, for example, or as an accident, and nobody remembers that, “There is a special case file for this child because he was a tertiary referral under Southall”, this is unlikely because they would see the medical records with my name and why the child had come from Barnsley or whatever. It is still very unlikely that there would be any problem about this, but, in theory, there is a small chance that what you are saying is correct, and I accept that.
Q Is it acceptable, because I suggest that it is not at all acceptable, for you to decide not to file something in medical records on the basis that it is your view that the child would never come back?
A I have explained that. Coming from another area of the country for a tertiary reason, the chances of them coming back are very.
Q It makes no sense in principle, does it, if, as you accepted when you were giving evidence, that medical records are sacrosanct and inviable?
A But these are medical records as well, and they are available. They are not hidden, they are not secret, as has been alleged; they are available. It would only stop being available if the whole team, the whole nursing staff and the whole administration, such as happened when we moved, I accept that, happened again.
Q They are not known about, are they? There is nothing in the medical records department at either hospital tagging the fact that these are known.
A They are known about.
Q They were not known about, for instance, to Professor David who indicated that he had never seen one before.
A Why would he? He is not working in our hospital.
Q Because he has been involved in much litigation involving you, in the same case as you when you were working together, perhaps on different sides in the same case.
A Most of those cases were category two expert witness cases, not patients referred to our hospital for clinical monitoring. There may have been, but I cannot think of one.
Q You heard him say in evidence that he had never come across them before, either in dealing with the individual cases in this in which you have been previously dealt with of two of these in another capacity, or when he had been involved in family litigation in which you were both involved?
A I think in the cases that he was involved, that are the two of these, was very early on before the family court was seeking disclosure of any medical records. Again, I cannot, without going into details with him, deal with those particular concerns of his.
Q I suggest to you, as a matter of principle before we move on, that for you to decide not to file matters in the hospital medical records, on the basis that you do not expect the child to come back, has no justification in principle whatsoever?
A Okay, if it was on that basis alone, of course, but there are other reasons which we have been into as to why they are separately kept which we went into earlier.
Q The problem in practice occurs if we have one of the scenarios that has been set out by Professor David when he is dealing with what he called his question 10. Can we just go to his first report at 7A, please at page 247 at paragraph 414?
MR TYSON: Madam, having set the scene, this will take me beyond 5 o’clock. I do not know whether you want me to carry on or not?
THE CHAIRMAN: It may take you beyond 5 o’clock?
MR TYSON: Yes.
THE CHAIRMAN: Perhaps this would be a good time to adjourn then if you are going to go on. I suspect Dr Southall has reached a point, as have the Panel, where we are now getting tired. So, if this particular section is going go on for longer
MR TYSON: It will.
THE CHAIRMAN: Perhaps we should do that in the morning. We will draw proceedings to a close today until nine thirty tomorrow. Dr Southall, I need to remind you about not talking about the case while you are under oath. I did not remind you before the break, but I trust you can reassure us that you did not
THE WITNESS: It is okay; I understand completely.
THE CHAIRMAN: Finally, before we disperse, it is apparent to the Panel that it is quite likely that we will not finish this case this week. That is a matter we wondered if you might wish to consider overnight from the point of view of housekeeping and how much longer is required to see this case through.
MR TYSON: Madam, there have been informal discussions between my learned friend and I on this matter and those informal discussions continue.
MR COONAN: Madam, at this stage, can I invite the Panel to postpone any public discussion about this until Dr Southall has completed his evidence? I do not want him to worry unnecessarily about matters which are passing between counsel and the Panel until he has completed his evidence. The other factor, of course, is that I am not in a position to discuss anything, nor are my solicitors, with him until he has completed his evidence. The question of timing may be a matter upon which he may have an input.
THE CHAIRMAN: I appreciate those points, Mr Coonan. I merely wished to put up the first flag at this stage. We were proposing hopefully not to discuss that until the evidence is complete, but there may be - according to how long Dr Southall continues to be on the witness stand - pressing reasons to return to the matter.
MR COONAN: Certainly, that is understood.
THE CHAIRMAN: I appreciate the points that you have made. That is all we need say for the time being. We will reconvene at nine thirty tomorrow.
(The Panel adjourned until 9.30 a.m. on Wednesday, 29 November 2006)