GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)
Friday 1 December 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 FIFTEEN)
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 JOLLIFFE 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
Re-examined by MR COONAN 1
SUBMISSION RE: ADMISSION OF DOCUMENTS 8
LEGAL ADVICE FROM THE LEGAL ASSESSOR 9
FURTHER DISCUSSION ON THE SUBMISSION 9
DECISION ON THE SUBMISSION 14
DAVID PATRICK SOUTHALL (Continued)
Re-examined by MR TYSON 15
APPLICATION BY MR TYSON RE: FURTHER
CROSS-EXAMINATION OF THE WITNESS 45
LEGAL ADVICE FROM THE LEGAL ASSESSOR 46
DECISION ON THE APPLICATION 46
DAVID PATRICK SOUTHALL (Continued)
Further cross-examined by MR TYSON 46
Questioned by THE PANEL 56
THE CHAIRMAN: Good morning. Mr Coonan, when you are ready.
Re-examined by MR COONAN
Q Dr Southall, can I just ask you some questions, please, first of all adopting the same sequence that has been adopted already.
A Yes.
Q I want to go back and just deal with the creation and continuation of special cases files generally.
A Yes.
Q I want you to keep in mind, when I ask you these questions, the distinction, if indeed there be a distinction, between the concept of creation and continuation. Do you understand?
A Yes, I do.
Q You mentioned to the Panel that one of the reasons for creating the special cases files was the storage of physiological data.
A Yes.
Q The second reason that you put forward was in connection with child protection work, child protection issues, or concerns.
A Yes.
Q You also mentioned, and this was right at the beginning of your cross-examination, the question of clinical audit.
A Yes.
Q Can we just look at those three elements, please. The physiological data storage reason, was that a reason for the creation of an SC file?
A Yes.
Q When you talk about physiological data storage, can you break that down for us?
A Yes. There would be three main components. There is the special case file itself, the folder, in which would go patient data form and the result of recordings form, which would also be sent to the GP referring consultant, other people who might need to know, and a copy in the main medical record. Then there would be the cardboard boxes with the numbers on containing the tapes, and similar cardboard boxes (slightly bigger) containing the printouts of the tapes. As I said before, about 99 per cent plus of special case files were concerned with that matter only, and most of them are very slim, just containing the data form and the recordings result.
Q So when you say “that matter”, are you referring to physiological data storage as that matter?
A Yes, storage and result, passing on the results.
Q So far as child protection issues or concerns are involved in this, to what extent is that category an underlying reason for the creation of an SC file? I am speaking generally.
A Yes, I understand. Well, at that time, and still even now in many places, child protection records are kept separately, and so in most instances of the special case files there already was one created for physiological recording purposes, so the fact that they already existed in all cases I think – I cannot think of any that did not have a physiological recording; I may be wrong, but I cannot think of any – then that would be automatically useful as a repository for the confidential papers on child protection. That was our thinking.
Q Let us look at the third component, clinical audit. To what extent were notions of clinical audit in the late 1980s and early mid-1990s in particular, to what extent were notions of clinical audit an underlying reason for the creation of an SC file?
A Well, in line with so many other teaching hospitals and tertiary centres, having your own separately kept files on this, where you had them all collated and able to access them easily without having to go and pull out, say, fifteen or thirty medical records, some of which might be missing or out with a clinic somewhere or at another hospital, it was I think generally accepted that this was a good way of keeping the data so that when you came to
write up your results on those patients - which in our case were physiological, clinical physiology, but could be in a renal unit, for instance, certain kinds of kidney problem - putting them all together in a paper was standard practice at that time, and whilst each individual patient was treated as a patient with their problem being treated and managed accordingly, gathering together similar patients and putting them into a paper was regarded as standard and good practice, I think, at the time, and not called research, and certainly not in those days requiring Research Ethics Committee approval. Not so now; things are very different now.
Q There is a further dimension to this, and it is this: assume that in a given case that the immediately clinical investigation for a child is complete.
A Yes.
Q It does not matter whether it is the Brompton or Stoke for these matters, but assume it is complete, and by that I include hospital clinical investigation and home monitoring.
A Yes.
Q Once that is complete, so the physiological data has been collected, and assume that there are no child protection concerns or issues arising, can you address this issue: would you then, as it were, marry up the physiological data collected in that way, which up to now has been in the special cases file, would you then marry that up with what has been called the main file, or the main hospital library record file?
A No.
Q Why would you not do that?
A Because the two main components of the special case file in the non-child protection group consisted firstly of the patient data, which I have already been through is almost always already in the main hospital medical file, much of it actually derived from the main hospital medical file, so there was no need to put that back. The recording result papers, if there was more than one – usually there was not, but if there was – was supposed to already be in the main medical file.
Q Is that the document which we have seen headed “Report”?
A Yes, or recording result, or whatever you want to call it. So although it is possible that other papers go into the special case file, those would be, in 99 plus per cent, as I said, that this should already be there, so there was no need to, if you like, take the special case files and close them and put it into the main medical record. If we did that too we would lose the long term clinical audit potential as well, obviously, if we did that.
Q Can you just take C2, please, and go to tab 6©. This is what we have been referring to occasionally as the Hempsons’ letter, dealing with special cases files. If you go to the second page, page 9 at the top, it is a passage we have looked at already, but I just want to ask you one particular question arising out of it. If you go to page 9 at the top, second paragraph:
“Professor Southall first started using ….. (SC) files in about October 1980. At that time he was working as a Senior Lecturer in Paediatrics at the Cardio-Thoracic Institute at the Royal Brompton ….. He was involved in clinical research concerning the causes of what had been termed Apparent Life Threatening Events (ALTE) during infancy and early childhood.”
Now, I am just going to pause there to ask you a question arising out of comments made by Mr Tyson in fact in his opening, where it was suggested that one underlying reason for keeping the SC files was research, and referred to this letter.
A Yes.
Q What do you say about that?
A Well, I accept that there is confusion even now between doctors as to what is research and what is clinical audit, but in those days our view was that clinical research did not benefit an individual child, but was designed to find out information of global benefit, and therefore needed consent and Research Ethics Committee approval. So, for example, we did a big study in the late 1970s early 1980s looking at many, many thousands of babies, where we collected recordings of breathing movements, electrocardiogram over 24 hours, and then we stored them, and then later some of these babies died of sudden infant death syndrome, and we compared the ones that had died with the ones that had survived, and we did lots of research on that. Now, that did not benefit any of those individual babies, and so it needed Research Ethics Committee approval, and all the publications mention that when we publish them, that we had approval. Now, all that development work led to the potential for us to use this equipment in particular, and our expertise, in clinical work to benefit individual children, which is what we are talking about with our special case files.
Q Now, when you look at this particular paragraph in the letter, the reference to you being involved in clinical research, I just want to clarify with you – just read it carefully before answering – in what sense is that phrase used? Is it used in the proper sense of clinical research, or is it used in any other sense in the context of this paragraph?
A You mean the phrase “He was involved in clinical research concerning the causes of”?
Q Yes.
A (Pause) It is difficult because sometimes I could see situations where you would interpret some of what we did as audit rather than research.
Q Were you actually doing research in the proper strict understood sense of the term “research”? Were you actually doing that even in the 80s and 90s, as well as clinical audit?
A Oh yes, in parallel, both of them.
Q That is the point I want to come to.
A Okay.
Q Can you explain to the Panel what matters you were doing which would truly and properly rank as research as opposed to clinical audit? That is the point.
A Yes. Collecting data from populations of children from different ages, for example, premature babies, older children, full term babies, recording oxygen levels over 24 hours and documenting normality, that would be the research bit. You cannot use recordings to document abnormality unless you are certain about normality, and the normality did not benefit the children, in fact they were mostly healthy children, so they were the research part of the project, of the work, and then when we got this normal data and used the same recording systems to investigate individual patients, that became clinical work.
Q In respect of matters which were properly classified as research in the way you have described it, were files kept in respect of the research which were separate to the SC files?
A Yes, and we still have them.
Q Were such research files kept at the Brompton?
A When we were working there, yes, and then when we moved ---
Q Let us take it in stages. They were generated at the Brompton.
A Yes.
Q And when you moved to Keele did you take the research files to Keele?
A Yes, we did.
Q When you were at Keele did you generate other research files?
A Yes, we did.
Q Were the old Brompton research files and the new (that is my word) Keele/Stoke research files stored at Stoke?
A Yes.
Q I think you said they are still there?
A Yes, they are. The very old ones I think we have destroyed, but they were very old.
Q Can you clarify this, please, are those category of files – my emphasis on those – separate from the SC files?
A Completely.
Q Would you look at D11, your CV? Dr Southall, the purpose of showing you the document is so you can, at my invitation, indicate by looking in particular at pages 6-13 which of those papers are you able to identify which are the product of clinical audit as opposed to research.
A Okay.
Q It does not matter for my purposes whether there is a distinction between Brompton and Stoke, and this may take a little time, so possibly one way of doing this, if I can set the scene, is when there is a break at the end of the morning, if you could do that exercise and go through pages 6 to the top of 13 and put down the numbers of the publications, there are 133 publications. Would you do that?
A You mean divide them into two groups?
Q Just highlight the clinical audit material by number.
A Oh, just the clinical material, not the research?
Q You can do both if you like, separate them out, can you do that?
A Yes. Some will be neither; some will be case reports.
Q That is all right, but if you could do that for us and provide the Panel with that information – I do not want to take time out by doing the exercise now.
A I will do.
Q So there is no doubt about it, the material I am looking at is material in peer review journals, is that right?
A That is right, yes.
Q That is all I need to know.
A Okay.
Q I am going to move on to the question of policies. Can you now take C3, tab 7(d) at (iv): you were asked questions about policies and the first questions I am going to ask you about, just to deal with the fact that there are some documents in this file put in by the other side, you were not asked specific questions about some of these but I am going to ask you now just to deal with the fact that they are there. (iv) is a document headed “North Staffordshire Health Authority, Child Protection Policy.”
A Yes.
Q If you go to page 20 of that tab you will see “Appendix Two” at the top with a date which suggests that this was after 1992.
A Yes.
Q Can you help, Professor Southall, as to the nature of this document?
A Yes, I was involved with one or two of the other consultants in drafting it, to help everybody working in the children’s unit, or other parts of the hospital, how to manage child protection.
Q Who were the – sorry to use this word – stakeholders in this exercise?
A Sorry, I do not understand the word.
Q It is a modern piece of jargon.
A It is, I know, but I still do not understand it even in any other context.
Q Apart from yourself and other consultants, was anybody else involved in the compilation or drafting of it, any other outside agencies?
A Yes, the Social Services Department, Staffordshire, and the Child Protection Division of Staffordshire Police would have been involved.
Q I am not going to go through it but is this a policy which governs practice on the words or is it practice in terms of external management?
A The whole gamut from the community through to the hospital.
Q Does this document in any way bear on the issues which are directly in front of this Panel as far as you are aware?
A Child protection is a major issue in front of the Panel but the kind of material we were involved, the kind of child protection problems we were involved with were particularly specialised so …
Q I was particularly concerned with the management and storage of records?
A Ah, well not really, no. It was 1993 by the way. Would you go to page 13 at the bottom?
Q Thank you, yes, I had not spotted that. That is 1993; if you move on to (vi), the policy that you were asked to look at, but I am not sure that you pointed out on the document the precise date of it. If we look at the second page of this document, this is the North Staffordshire Hospital NHS Trust Child Protection Policy procedures, and look at the bottom of the “contents” page and turn it on its side, can you see January 1997?
A Yes.
Q If you go to page 20 and look at the left column under 1.1, which is Appendix Two, you will see reference to “clinical record keeping policy No. 10”.
A Yes.
Q Have you personally – and I stress that, you personally – been able to obtain a copy of that policy for the purposes of this hearing?
A No.
Q Have you sought to get it from the Trust?
A To be honest I have not.
Q In so far as other people may have tried we will deal with that separately.
A But I have not personally tried.
Q This document at (vi) is a document generated in 1997: to what extent were you involved in drafting this policy?
A Well I was involved in drafting it, but I think the emphasis is more on, as I said to Mr Tyson, on the general child protection work coming in daily to the children’s unit rather than on the specifics on the kind of work we were involved in, but I should say we had much less involvement then, in 1997, that we had done in 1993, because in 1994 our covert video surveillance was stopped as a result of the same campaign that we are hearing all about today, or in this hearing.
Q A campaign by whom?
A By Mr Brian Morgan and Mrs Penny Mellor – well, not her at that stage to be fair. Mr Brian Morgan at that time and then later on Mrs Penny Mellor.
Q So the CVS stopped.
A The covert video surveillance work stopped at that time, so that was one area of our work which had changed. I continued to do a lot of child protection work for the family court though up until 1999 when the inquiry started into, again, the complaint by Mrs Mellor. What I am trying to say is that we were doing much less child protection work as a tertiary centre in 1997 than we had been in 1993 when I was involved in that other policy.
Q To what extent in 1997, at any stage up until the end of the 1990s was there any national policy guidance dealing with the major issue which has been brought before this Panel, which is the question of the management of medical records? To what extent was there national guidance?
A I was not aware of any and I think Professor David has pointed out that it was only available in 1999, but again he is not an expert on it either, so it is a difficult area, but, as far as I am aware, and I am not an expert on it, it was not available in policy documents in the Department of Health. As a result of the inquiry that was conducted into work following the Mellor complaint, one of the issues that was identified was the importance of trying to tighten up on record-keeping in general in child protection. Dr Samuels, my colleague, I think led that investigation and work and I helped him, and that resulted in the policy document that you have seen in 2006.
Q We will deal with that in a moment. Just to complete the review of this material, leave that document of January 1997 on one side and within the same tab there is to be found another document, which is headed “North Stafford Hospital Trust, Staffordshire Social Services, Staffordshire Police” dated 12 January 1994. Do you have that?
A Yes, I have it.
Q “Guidelines for the multi-agency management of patients suspected or at risk of suffering from life-threatening abuse resulting in cyanotic-apnoeic episodes”.
A Yes.
Q Did you have a hand in drafting that?
A I was the lead person from the hospital and there were lead people from the social services and from the police, and this was a document that took years to produce in order to deal with the very complex issues involved.
Q I am not going to direct you to any particular part of this. The Panel can read it. You have now identified your hand in that.
A Yes.
Q Did that report therefore govern the approach that we see on page 9 on covert video recording?
A Yes, it did.
Q And involvement of other agencies in suspected child abuse of the cyanotic apnoeic type?
A Yes.
Q Let us come therefore to more contemporary policy. One of the matters that your attention was drawn to was some recommendations from the Victoria Climbié inquiry. I think an issue was raised during the course of your evidence as to the date of those recommendations. We did not at that stage have the document in the chamber but I have a copy here. I do not know whether you have it. I think you mentioned that it was 2003.
A I guessed.
Q Just have the document so it goes into evidence. (Document handed to witness) You are being handed a short form of the inquiry. Can you just help as to the date?
A 2003.
MR COONAN: Thank you. The Royal College of Paediatrics and Child Care published some material on the question of medical records. We know that because Professor David referred to it in his report, his first report. I am going to ask you to produce that, please, and to take you to one particular passage. I am going to ask him to produce, Madam, the whole of the report for the Panel to see.
MR TYSON: Madam, I have been listening to my learned friend’s cross-examination and
re-examination. I had always understood that re-examination arose out of cross examination. The witness was not asked questions arising out of a number of these documents. I have been patient so far. My patience has now run out. As he was never asked about this document, it seems to me to be impermissible under the laws of evidence and procedure for him to be asked questions in re-examination when he has not been asked about them in
cross-examination. One can only re-examine out of cross-examination, and these matters never came up in cross-examinations. It seems to be another bite of the cherry of evidence in chief if he is seeing new documents which Dr Southall could have commented on in chief and I could have cross examined him on. This is entirely new matter not arising out of cross examination. In my submission, though I have been patient to date, this document cannot be introduced now into the evidence in re-examination when it has not been
cross-examined upon at all.
MR COONAN: The short answer to that is that the whole topic of policy was raised by
Mr Tyson in cross-examination of Dr Southall. The suggestion was put to him that what appeared in later publications was current national policy, even at the time the Panel is concerned with, and it is right, in my submission, that you should see exactly what is being said in this material in 2000 or 2002 because of the suggestion which had been made. It is a matter for you how you judge that, madam.
The second matter is that during cross-examination Professor Southall did refer in his evidence to the existence of the Department of Health material and to the Royal College material and to the 2006 Trust policy, and I noted that Mr Tyson was very careful not to invite him to produce it. I now do. So it is highly relevant.
MR TYSON: The point still remains, madam, that I did not ask him questions about these documents and therefore they cannot be introduced by the back door through re examination when, if my learned friend sought to rely on them, he should have brought in these document in chief. I did not ask him any questions about this document. In my submission, it is impermissible as a matter of pure law to try to introduce new material through re-examination when they were not cross-examined on.
THE CHAIRMAN: I will ask the Legal Assessor to give a view.
THE LEGAL ASSESSOR: Mr Tyson objects to this form of re-examination on the basis that no specific reference was made to the Climbié report in the course of cross examination. However, as has been pointed out to you, the whole question of policy was canvassed and therefore, even though no specific reference is made, it would be appropriate, I would advise you, that this form of questioning should continue.
It is, of course, a matter for you but you may also have your judgment affected by the fact that under your Rule 50 it is open to you to admit any evidence that you as a Panel may think is helpful in the course of your inquiries, provided there is no injustice.
My advice to you, madam, is that Mr Coonan’s approach is wholly appropriate in the circumstances and that you also have your fallback position, as I have indicated, but it is of course entirely a matter for you in your discretion as judges of the law.
I should add that if you adopt my advice, you will doubtless allow Mr Tyson to further question the witness on any points that may arise specifically from reference to the Climbié report.
THE CHAIRMAN: Could I clarify this? I understood it was not the Climbié report you were seeking to introduce.
MR COONAN: At this stage, I am seeking to deal with references to the Department of Health publication referred to specifically by Dr Southall in his cross-examination in response to questions put by Mr Tyson and, secondly, to the 2006 North Staffordshire report which Dr Southall specifically referred to in cross-examination. I also wish to put in the Royal College publication, which is referred to by Professor David in his report. Even on that point, my learned friend cannot possibly say he is taken by surprise. It is in Professor David’s report.
The purpose of dealing with that is so that you can see the report as a whole rather than just to be taken to two paragraphs of it, but, you are right, it is not just the Climbié report. I have now dealt with the Climibié inquiry recommendations by adducing the evidence of the date. I am not proposing to put in the Climbié report.
THE CHAIRMAN: To be clear, there are three documents you are hoping to introduce. Are they all at this time or were some of them ---
MR COONAN: One in 2002, one in ---
THE CHAIRMAN: I am sorry, were you proposing to introduce those now?
MR COONAN: Yes, sequentially.
THE CHAIRMAN: I just want to be clear what both documents were because the Legal Assessor mentioned the Climbié report. I assume that the advice does not depend on which specific document it was, but I will check with the Legal Assessor.
THE LEGAL ASSESSOR: The same point arises.
MR TYSON: Madam, perhaps you would hear me again? I did cross-examine on Climbié, so I have no objection to any further material as to Climbié.
I did cross-examine on the Department of Health guidelines, so I have no objection to the Department of Health guidelines going in.
I did not cross-examine nor even mention the Royal College of Paediatricians’ guidance.
I did not cross-examine or even mention the 2006 North Staffordshire guidance.
If my learned friend wanted to rely on either of these documents, then there are several ways he could have done it. One, he could have cross-examined Professor David about them and he did not. Secondly, he could have asked his client in chief about it, and he did not. The third route to get them in is if I cross-examined and put the documents in, and I did not. As a pure mater of criminal procedure and a matter of law, now to bring in fresh documents in
re-examination when they have not been discussed or dealt with before is simply not permitted under criminal law. The only way it can be permitted is under the proviso to rule 50.
In the circumstances, I would not encourage you to use them because if these documents were going to be part of the central evidence of Dr Southall, then there is a proper way to have dealt with that and it is for Dr Southall to have relied on them in chief. For the learned legal Assessor, with all due respect, to say you can get round that if Mr Tyson has another bite of the cherry thereafter is not the appropriate way of dealing with this matter. With all due respect to the learned Legal Assessor, he was wrong in the advice that he gave you.
I would of course accept it.
MR COONAN: In my submission the learned Legal Assessor’s advice is correct. True it is, if you look at the 2006 policy, that Mr Tyson did not specifically himself cross-examine on the document, but he opened up an issue of policy and applicable policy by his
cross-examination. There are passages and passages and passages that deal with the question of policy. In the course of the answers Professor Southall highlighted the fact that there was the existence of the 2006 policy, and made the point that the policies that he was being
cross-examined about were not national policies and that the only national policy and the only real change that bore on practice came much later, and he highlighted and identified the 2006 policy. That was the evidence. If the topic is opened up in cross-examination
Mr Tyson must fall back, he cannot now say that that material ceases to be admissible. If there is mention in evidence that is relied on by Professor Southall in his cross-examination, he is entitled now to adduce that material to illustrate the point he is making, otherwise you are being kept in the dark. That is the 2006 policy.
So far as the Department of Health policy is concerned, there does not appear to be any objection and if there is no objection to that it seems difficult to understand why there is an objection in principle to the 2006 policy.
MR TYSON: I cross-examined on one and not the other.
MR COONAN: I hear what my learned friend says sotto voce, but that is to take a very narrow-minded view of the issue. The whole basis of cross-examination is that if you
cross-examine on an issue and material is now adduced, that is therefore a matter which falls properly within the ambit of re-examination – subject to limits of course of relevance. Just because my learned friend did not specifically cross-examine on a document does not stop it being relevant in re-examination. It is a question of the issue that has been cross-examined on. There might be some difference if in fact Dr Southall had not even mentioned the 2006 policy, but he did, and you are entitled in my submission to know what it was that he was referring to. If Dr Southall had said “Mr Tyson, you should look at the 2006 policy”, which in effect is what he was saying, then Dr Southall would have been perfectly within his rights to whip it out of his back pocket and say there it is.
I do say that the advice you have received thus far is correct, I do say that all three of these documents fall within the ambit of relevance, and if you want to make a distinction amongst any of these three documents I am more than happy not to pursue the point about the Royal College, simply because it is referred to in Professor David’s report already, but the other two I do pursue.
THE CHAIRMAN: Mr Tyson, do I take it you do not have any objection to the first document mentioned, the Department of Health document?
MR TYSON: I cross-examined on that one.
THE CHAIRMAN: The only one that remains in contention would be the 2006 North Staffs document.
MR TYSON: Yes. I understand and I appreciate my learned friend’s concession in relation to the Royal College, so we are left with the 2006 North Staffordshire document. Bearing in mind the date of that document and the date of the matters in the charges, you may query its relevance. I do not know what the document says, I have never seen it, but you may wonder what the relevance is. I do maintain my objection to admission of the 2006 document, both on the question of relevance, bearing in mind the date, and the fact that I did not
cross-examine it in. I am less concerned about that, I have to say, than I was about the Royal College guidance now that my learned friend has made a concession.
MR COONAN: I do not want to repeat my observations but I am very dismayed to hear my learned friend has not seen the document, because these documents were served on Field Fisher before this case even began and if my learned friend has not even seen this document then I am very surprised. There is only one person to blame for that. They were served in anticipation that they would be used in this hearing; there was no obligation to serve it on Field Fisher but we thought it useful to do so.
THE CHAIRMAN: I will ask the Legal Assessor if, having heard that exchange, he wishes to add to his advice?
THE LEGAL ASSESSOR: Madam, it seems that you are concerned now only with the 2006 document. In regard to that I have nothing to add to the advice that I gave earlier, save to repeat that it is entirely a matter for you, having heard the submissions and also having heard my advice.
THE CHAIRMAN: Perhaps the Panel had better go into camera to determine whether to receive this document or not.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE PANEL DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
MR TYSON: Madam, I apologise for asking you to come back in before you give your determination. I made a concession about the Department of Health guidance coming in because I said I had cross-examined on it, and I did cross-examine upon the 1999 Department of Health guidance, because that is set out in extenso in Professor David’s report about good clinical record-keeping and the like. What I now understand subsequently from my learned friend is that the Department of Health guidance he wants to bring in is not that guidance, it is some 2002 guidance given by the Department of Health, about which I was hitherto unaware and had not seen, or if I had seen it I had not read it. I just want to make it clear that I have to withdraw my concession in relation to the Department of Health guidance because we were talking about different guidance, and the guidance that I understand my learned friend to want to bring in is the Department of Health Safeguarding Children in Whom Illnesses are Fabricated or Induced the Department of Health 2002. That is not a document I was hitherto aware of and I did not cross-examine the doctor on that. I apologise for that, but I thought
I was talking about one set of guidance but it appears that my learned friend is talking about some completely different guidance.
THE LEGAL ASSESSOR: There has now been a degree of confusion all round about which documents Mr Coonan seeks to refer to. Do I take it now that it is the 2002 Department of Health guidance and the North Staffs policy of 2006; are those the two that are now in issue?
MR COONAN: Absolutely, and as far as we are concerned that is all that is in issue, both having been referred to by Dr Southall in his cross-examination.
THE LEGAL ASSESSOR: What is not in issue is the 1999 Department of Health, nor the Climbié report.
MR COONAN: That is correct.
THE LEGAL ASSESSOR: What about the Royal College, you are not pursuing that.
MR COONAN: I have invited the Panel to receive it, simply because it comes under the rubric of general policy issues raised in cross-examination and, moreover, it is referred to in any event in Professor David’s report.
THE LEGAL ASSESSOR: We had better just see what Mr Tyson has to say about that.
I am just trying to clarify exactly what is in issue at the moment.
MR TYSON: My learned friend conceded, as I understand it, although he appears to have now changed his mind, that he would not be seeking to introduce the Royal College one, and I accepted that concession. The two documents in my submission that are in issue are the 2006 North Staffordshire guidance and the 2002 Department of Health guidance. Those are matters at issue because my learned friend, until a second ago, was not pursuing the Royal College guidance.
THE LEGAL ASSESSOR: We had better establish whether he is or he is not.
THE CHAIRMAN: Are you pursuing that matter, Mr Coonan?
MR COONAN: I think my learned friend misunderstands the position. The invitation was that you should receive all of them, including the Royal College document, not least because it was already referred to in Professor David’s report, but precisely because it is referred to in the report it may be that there is nothing extra for you to receive, but I was seeking to put it before you in its complete state. It is in that sense that I am not particularly vigorous about it because I am not sure that it is going to add very much, because you have got the quotations from the document in Professor David’s report. I am therefore not going to lose any sleep over the fact that it is not before you, but you may care to receive it of course. It is the others that you have not seen but which have been referred to in Dr Southall’s cross-examination that we do invite you to receive. That is the distinction.
THE LEGAL ASSESSOR: That makes the position clear about what Mr Coonan seeks to rely on, and as I understand it, Mr Tyson, you maintain your resistance to the North Staffs 2006 and to the Royal College.
MR TYSON: And to this wholly new document, the Department of Health 2002 guidance.
THE LEGAL ASSESSOR: So those are the three documents that are in issue.
MR TYSON: Yes. My learned friend does not appear to be pressing very hard about the Royal College guidance because the relevant extracts of it are in Professor David’s report, and if we leave it like that I am perfectly content for it to be left like that, but I do maintain my objection to the 2006 guidance, for reasons I have already given, and now to the 2002 Department of Health because I made my concession in relation to the 1999 guidance.
THE LEGAL ASSESSOR: Effectively the submissions of both counsel remain unchanged in regard to the documents that the Panel should consider.
MR TYSON: They are changed as far as I am concerned because my concession was in relation to the 1999 Department of Health guidance and not to the 2002 Department of Health which my learned friend seeks to bring in, which was never cross-examined upon because
I was hitherto unaware of it.
THE LEGAL ASSESSOR: But on the same basis.
MR TYSON: On the same basis.
THE LEGAL ASSESSOR: So there is nothing to add to the arguments.
MR TYSON: No.
THE CHAIRMAN: Before we retire I will just check with the Legal Assessor whether it makes any alteration to the advice he has given to the Panel?
THE LEGAL ASSESSOR: In light of the fact that counsel’s submissions have not altered, although the relevant documents have now been made clear, I have nothing to add to my earlier advice and I would invite you to consider your decisions in the light of the submissions and indeed in the light of the advice which I have given hitherto.
THE CHAIRMAN: We will need to retire again into private session briefly to consider this matter. Thank you.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE PANEL DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
DECISION
THE CHAIRMAN: Mr Coonan: You seek in the course of your re-examination of Dr Southall to introduce the following three documents:
1. Department of Health guidance of 2002;
2. Royal College of Paediatrics and child health document 2002;
3. North Staffordshire Policy document 2006.
Mr Tyson objects to this on the basis that he has not cross-examined Dr Southall on these documents.
The Panel has considered the submissions made by both Counsel and the advice of the Legal Assessor. The Panel has accepted the advice of the Legal Assessor that as a matter of law you are entitled to introduce these documents in the course of re-examination.
In any event the Panel is satisfied that these documents appears to be relevant to the inquiry and can be admitted under rule 50 (1) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct (Procedure) Rules Order of Council 1988.
The Panel will therefore receive these documents.
MR COONAN: Professor Southall, could we do it this way, please: first of all, in introducing the 2002 document, can you just explain to the Panel, when you referred to it on 28 November before the Panel, on Tuesday, what was the relevance of the document for the purposes of your evidence?
A This is the 2002 Department of Health guidelines on factitious and induced illness?
Q Yes, that is right.
A I am trying to remember, so much has happened, but I think it was to do with the record keeping policy issue.
Q Can you just produce it formally, please. (Document handed)
THE CHAIRMAN: This will be D19.
MR COONAN: Could I ask you to go to page 39, please, and there is a section there dealing with the topic of “The Paediatrician and the Trust”.
A I have it.
Q Before looking at any of the body of this, can I please ask you this by way of introduction: did you become aware of this document at some stage?
A I knew it was being produced by the Department of Health, and I am pretty sure
I wrote in to them as well at some stage with my comments.
Q So far as you as a consultant paediatrician is concerned, what was the general status of this document?
A When?
Q When it was published. Assuming you received it in or about 2002, what status would be accorded to it by you?
A It is an important document with regard to the continued work in child protection with regard to factitious or induced illness, but from my point of view, of course, I was not doing that work at that time.
Q Just look at paragraphs 4.24 to 4.29. There is a reference to general matters in 4.24. In 4.25 there is reference to a previous report in 2001 by the College.
A Yes.
Q Then can I take you down, please, to 4.28:
“In any case of suspected fabricated or induced illness it is essential to carefully review the child’s medical history” – and there is a reference to sharing information – “This should include reviewing all available medical notes and liaising with the child and family members’ GP and health visitor(s). If there are separate child health records these should be accessed and consideration given to making enquiries of other local hospitals (it is not unknown, particularly in a metropolitan area, for a child to be being seen in more than one paediatric department at the same time). Likewise, if the family has recently moved, contact should be made with the paediatric services in the previous area. The named doctor for the Trust from which notes are being sought can often facilitate this process.”
I just pause for a minute. This is guidance from the Department of Health in 2002. We already know that some guidance was published in 1999 as referred to in Professor David’s report.
A Yes.
Q My first question is this: prior to 1999 and prior to this document was there any guidance at national level concerning the issues of record keeping with particular reference to the topic before this Panel, namely special cases files?
A Not that I am aware of.
Q Looking at paragraph 4.28, can you help on two topics; the reference in 4.28 on the fourth line to separate child health records, what do you understand that to refer to?
A The fact that the child will have more than one set of medical records.
Q Kept where?
A In a variety of places, including family doctor, health visitor, going right through to the hospital where there may be more than one set of records.
Q Then just four lines from the bottom of 4.28 there is a reference to “the named doctor for the Trust”.
A Yes.
Q What is a named doctor?
A It is a paediatrician who has accepted and been nominated to be responsible for child protection matters in the Trust.
Q In the period up to 1999, was there a named doctor at Stoke?
A I do not know whether it was termed “named doctor”, but there was a consultant who was taking the lead on it.
Q Who was that?
A At various times it changed, but I think Dr – I cannot remember his name, it has just gone from my mind; I had the name – he has now retired.
Q Was it you?
A No.
Q Then if you go, please, to page 59, paragraph 6.36, this is under the general heading on the previous page of “Record Keeping”.
A Yes.
Q 6.36: “Good record keeping is an important part of the accountability of professionals”, do you see that?
A Yes, I do.
Q Looking at the body of that, I do not think I need to read it out, but just read it silently to yourself and make any comment on it that you wish.
A I like the last sentence – obviously I would – “These policies should ensure that records are stored securely and can be retrieved promptly and efficiently.”
Q Apart from that sentence, is there anything else in paragraph 6.36 that you disagree with?
A I do not disagree with any of it.
Q 6.37, do you agree or disagree with those sentiments?
A I agree with them.
Q 6.38 I shall read:
“All records should be kept securely to prevent unauthorised access and ensure they cannot be interfered with. In certain circumstances, where the child’s safety is at risk, it may be necessary for a supplementary record to be created and held separately from the main records. This should not extend to keeping full duplicate records except in the exceptional circumstances.”
Then there is a reference to the Data Protection Act Principles.
“A decision to keep a supplementary record should be made at the strategy discussion.”
There is a reference back to that in the body of the publication. This is in 2002.
A Yes.
Q What observation do you wish to make about those sentiments in 6.38?
A Well, our practice in the 90s, late 80s, had been being fed in by us through publications and social services and the police through their contacts at national level about issues to do with how best to deal with factitious and induced illness problems with regard particularly to confidentiality and safety of the child. The issue is always what is best for the child. So these points that are being made here, some of these we would have been pushing for in the past.
Q Did those sentiments, which are captured in 6.38, did those principles apply to your practice in the 80s and 90s in those precise terms?
A Not in the precise terms, because “A decision to keep a supplementary record should be made at the strategy discussion” is a good one, because it is at the strategy discussion meetings that the first group of experts are looking at the possibility of factitious and induced illness, and the parents at this stage are not involved at strategy discussion level. So obviously if it was dangerous to reveal to the parents the concerns at that stage, one result would be, “Well, let us keep the records in a separate file because it is dangerous if they are released”. It might not just be dangerous, it might be harmful in other ways.
Q Just in a word, Dr Southall, this was published in 2002; to what extend did the sentiments in 6.38 apply to your practice and approach in the 80s and 90s?
A They apply.
Q In particular, when it says “it may be necessary for a supplementary record to be created and held separately”, where the child’s safety is at risk, is that the same principle you were applying to them in the 90s, or slightly different, or grossly different? You tell us.
A Well, that is what I was trying to say, that the most important issue is the child’s safety and the child. They are child records, they are not parent records or family records predominantly, they are child records, and from my point of view as the paediatrician my responsibility is the child. There are other people whose responsibility are the parents and the family. So it is absolutely in line with our policy, those first few sentences.
Q Can you just put that to one side, please. That is all I am going to take you to in that document. Can you receive the second document, 2006. (Document handed)
THE CHAIRMAN: This will be D20.
MR COONAN: Do you have a copy there, Dr Southall?
A Yes, I do.
Q The first question is the date. On the first facing page it is said that the date of issue is July 2006.
A Yes.
Q If you turn in to the contents page, you will see the computer print off as January 2005.
A Yes.
Q Insofar as there may be anything turning on that, can you help about the provenance of it?
A I cannot.
Q Were you at this stage, whether it be 2005 or 2006, as you have already said, a locum consultant at Stoke at that time?
A Yes, from January 2005.
Q Did you personally have a hand in drafting this document?
A Not as a primary drafter of the document. I was asked to comment on it. The people at the end are the primary drafters, page 7.
Q Let us take a look at that.
A Dr Reynolds, Negrycz, Samuels and Mrs Johnson, they are the prime people. I was asked to comment on various drafts, starting in about 2003.
Q Now, before we look at any of this material I want to ask you a few questions arising out of its reference in your evidence, again on 28 November, when you were asked questions about policy.
A Yes.
Q You drew attention to the existence of this document during the course of your evidence.
A Yes.
Q Now, can you explain to the Panel, please, what you say is the relevance of this document, what is to be derived from this document, in terms of the fact, first of all, that it was published in 2006?
A Yes. Basically, our department, as you know, has been involved in child protection at a very special level for a long time, and in 1999 there were allegations made and then there was an investigation. During that investigation---
Q I do not want to go into the investigation, I just want to deal with the relevance of the fact that it is in 2006.
A Okay. Well, it has been distilled and evolved over the years as a way of optimising the keeping of records of children where child protection issues apply.
Q We will look at it in a moment, but were the elements of guidance in this document actually applying in the mid to latter part of the 90s?
A No. They were evolving from that at the time.
Q I take you then, please, to page 3.
MR TYSON: I am sorry to interrupt, but if this witness is saying that the elements in this document did not apply in the 90s, I query the relevance to the issues that you have to deal with in the heads of charge. I respect of course your determination, but in view of the specific answer you have had I query the relevance.
MR COONAN: Madam, with respect, I would have thought the evidence is indeed
self-evident. The issue before you is evolution and the extent to which policies have developed, because the thrust of my learned friend’s cross-examination on 28 November was, to a significant degree, a proposition that various elements, certainly the 1999 Department of Health report, and indeed in the Climbié Inquiry Report, represented the approach that should have been adopted in the 80s and 90s, and what I am doing is examining the evolutionary process so that you can see it and make a judgement about it. That is the relevance of it, so that you can decide the extent to which the doctor may or may not have been in breach of guidance or policies at the relevant time. The Panel first of all has to decide what the policies were and whether or not there was evolution and that is an issue which in a way still exists and that is the reason why I am inviting you to look at that.
THE CHAIRMAN: You have heard that response, Mr Tyson, do you still maintain your objection?
MR TYSON: Yes, it is completely bizarre, in my respectful submission. The heads of charge relating to the situation in the latest one being Appendix One is, I think from memory, 1998. There are a couple of letters in 1998 in Appendix One relating to Child D and I am looking at 2(k), which is November 1998. What your focus has to be is what was the prevailing situation up until 1998, not how it has evolved since.
Yes, as the doctor accepted when I put to him aspects of the Climbié report of the Department of Health 199 relevance that those were of universal application at whatever time rather than how the matter thereafter evolved rather than being of universal application. The question of evolution post-1998 is irrelevant. The questioning of whether subsequent guidance was of universal application before is relevant and that is a matter upon which I cross-examined. It does not assist on evolution in the matter you have to determine.
MR COONAN: Madam, that raises the temperature. The fact is the Panel has made a determination that it wishes to receive this document and the Panel already knew what the flavour of the document was going to be as a result of evidence that Dr Southall gave on 28 November, which I have just rehearsed, and we say it is entirely relevant because, as happens in many cases that come before the Panel, you make a judgement and you look at, as a Panel, the available guidance or practice or policy at the particular time and you look at how it has shifted in order to make a judgement about culpability, about the extent to which the doctor was or should have been guided at the time, all these are relevant, and they are relevant to making a proper judgement in respect to the heads of charge, whether at this stage or at a later stage. You would be hampered in your duty in making due inquiry if you did not, but in any event you have already determined that this material should be admitted.
At the end of the day, whether you think it is of direct relevance is a matter for you when you receive the evidence.
THE CHAIRMAN: Legal Assessor, do you have any comment to make on that?
THE LEGAL ASSESSOR: Madam, you have admitted the document. The question of evolution is a plank of the doctor’s case, one of the issues before you. In those circumstances the document itself, having been admitted, is something which you have decided you should have before you. As has been said before, the weight you attach to it and the direct relevance of it is a different matter and that is something for you to consider of course, but you may well think that it is perfectly appropriate for you to look at the document which you ruled should be admitted.
THE CHAIRMAN: Mr Tyson, you have heard the advice. Do you …
MR TYSON: I maintain my objection but I just look at the answer given by the witness that were the elements of guidance given in the 2006 document in your mind in the latter 1990s? Answer: No. That is the beginning and the end of it.
MR COONAN: The only observation I make is that the question about the elements, “Were they in your mind?” the next step is for you to look at what the elements were.
THE CHAIRMAN: I have to say my own view is that the issue of evolution is not only a matter of where things were evolving to but where they evolved from and therefore this is a continuous process and the Panel may well find it helpful, as you have I think expressed, to see what the totality of the evolution process is in the guidance and when the Panel have heard how you develop that can decide what weight to place upon it. I look to the Panel to see if anybody wishes to discuss this or whether they accept that, and the Legal Assessor’s advice. I see the Panel concurs with my view that we should accept the Legal Assessor’s advice and we would find it helpful to have this aspect developed.
MR COONAN: Thank you. Dr Southall, therefore the umbrella under which we are concerns, if you like, evolution.
A Yes.
Q The drafters of this document, at least the four principal people whose names you have drawn attention to, therefore had a hand in drafting in particular 1.2 on page 3, but I had better start at 1.1:
“As with all medical and nursing practice, child protection work requires clear, accurate record keeping by health professionals involved with the child.”
Do you agree with that?
A Yes, and I think we tried to do that with our reports.
Q
“With most children where there is concern about possible abuse or neglect, the doctor will share concerns with the parents and inform them that a referral is being made to Social Services or Police for further investigation. The information shared with parents would be documented within the medical records. This practice is in line with the Department of Health guidance in Working Together and the Framework for the Assessment of Children in Need, as well as local Area Child Protection Committee Guidance and Procedures. In this situation, it is unlikely that the child’s safety would be compromised by the parents having access to records either by accidentally or deliberately viewing records on the ward or in clinic, or by formally accessing their child’s records through agreed procedures.
1.2 The situation however is different when there are concerns that the parent or carer may be fabricating or inducing illness in the child. Illness fabrication and induction is a form of child abuse in which a parent or carer fabricates symptoms or signs of illness, or induces illness in a variety of ways, including poisoning or suffocation. In such cases, parents or carers who become aware of the concerns of professionals may evade assessment by agencies or induce further illness, thus placing the child at greater risk. It is of utmost importance that health professionals accurately record observations and that there is a careful evaluation of symptoms, signs and the results of investigations to help ensure appropriate diagnosis.”
Pausing there, do you agree or disagree with that part of that paragraph?
A I completely agree with it.
Q Did you adopt that approach in the period under direct scrutiny by this Panel?
A We did. It evolved though. It developed to this point during our work.
Q Then it goes on:
“However there may be significant risk of harm to the child should the parents or carers know of the concerns about fabricated or induced illness, particularly before medical assessment has reached a stage where there is adequate information available so that the statutory agencies can ensure protection of the child.” – then in bold print – “Where health professionals conclude that a discussion of the concerns with the parents/carers will place the child at an increased risk of significant harm, the parents/carers should not be informed of concerns about illness fabrication or induction before inter-agency decisions are agreed as to what information should be shared with them, when, how and by whom. In these circumstances, it would be preferred practice to maintain a separate medical record detailing these concerns, which should be kept in a secure place away from the immediate clinical area of the child or parents. It is important however that these records are accessible to key staff involved with the family as necessary, and so there needs to be an agreed procedure.”
Pausing there, looking at the latter part of the paragraph I have just read out: first of all, to what extent did those sentiments apply, principally by you, in the period under direct scrutiny?
A That is what we did.
Q I want to deal now with the departmental guidance summary and in 2.1 there is a reference to “published guidance on record keeping” and that is a reference to the Department of Health paper 2002 that we have looked at, yes?
A Yes.
Q There is then a distillation from the publications on page 4 in bullet form, and I am going to take you to the fifth bullet point beginning “All records”, do you see that?
A Yes, I have got it.
Q I do not invite that the rest of them should not be looked at but for present purposes I just highlight this:
“all records should be kept in a secure place so that unauthorised persons cannot access them and to ensure that the records cannot be tampered with or test results altered.”
Then I jump one:
“It may be necessary for a supplementary record to be created and held separately from main records.
The supplementary record should not extend to keeping full duplicate records except in the most unusual circumstances.”
Then in 2.2:
“The DoH guidance states that a decision to keep a supplementary record should be made at the strategy discussion (paragraph 6.38).”
We have looked at that.
A Yes.
Q
“This is usually convened by social services, and involves the agencies who share decision making regarding case management.”
The last sentence of that page:
“From the perspective of the hospital, agreement of the need to keep supplementary documentation should be reached initially by discussion between the consultant caring for the patient, the named doctor and named nurse for child protection, and the ward manager or deputy.”
Pausing there: I asked you earlier about the concept of a named doctor; what about the concept of a named nurse for child protection?
A A similar kind of appointment.
Q Was there a named nurse for child protection in the period under direct scrutiny by the Panel in Stoke and Brompton?
A I am pretty sure there was, yes.
Q Under 3, “Roles and responsibilities” at 3.1:
“For all patients, information should generally be recorded in the main medical record in an accurate, legible and contemporaneous manner. However in cases where there are concerns about fabricated or induced illness, and it is felt that there would be a risk of significant harm to the child if the parents became aware of the professionals concerns, action should be taken to discuss with social services the setting up of the supplementary record as in 2.2.”
We have looked at that.
A Yes.
Q Then it deals with the in-patient situation:
“As this situation predominantly arises in in-patients, the supplementary record will be kept in the ward manager’s office. This is accessible only to the ward managers, or their deputies, e.g. senior staff nurses in charge of the ward. The consultant should liaise with the ward manager to ensure that relevant senior medical/nursing staff and the ward clerk (e.g. those who attend the patient) will be informed of the presence of the supplementary record.”
A Yes.
Q 3.3:
“In order to identify within the child’s main medical record that additional information is available, the ward manager or their deputy will place a red acetate divider within the medical record folder appropriately secured by a mediclip.”
Let us look at 3.1, 3.2 and 3.3 in the round, Dr Southall: to what extent do those sentiments represent evolutionary change?
A 3.1 and 3.2 applied except that it was not the ward manager’s office in the cases of suspected FII, but our academic department’s secure room, so this is a change to that which has resulted from evolution or discussion. The acetate divider did not exist and it is something that has been suggested since, and it is an excellent idea, I think, and I agree with it fully, but it did not occur when we were involved, and looking back I think it would have been great if it did. I think it would have been much better and it would have helped some of these problems that we have been discussing. Equally, that divider, I do not know exactly what it is like because I have not seen one but hopefully it would not indicate anything more than just a red divider which people would be alerted to. In other words, it is not going to say on it “There are child protection records on this child somewhere else” because that would defeat the object of what we are trying to achieve here, so I think it is probably just a red marker that everybody knew existed. In our time, if you like, the time under consideration, everybody knew that there was no marker, and I think that is the difference and I accept that is a major advance.
Q Would you look at 3.6:
“At the conclusion of the in-patient stay, or when child protection concerns are substantiated and the child is adequately protected, it would be appropriate for this supplementary record to be joined to the main medical record between the red acetate dividers. If child protection concerns are not substantiated and the child is readmitted, a further strategy discussion should be held as in 2.2” – which we have looked at – “which may result in the supplementary contents being removed and held separately again. This will be the responsibility of the consultant in charge of the child’s care, in conjunction with the ward manager.”
A Yes.
Q To what extent do those represent evolutionary change?
A They are evolutionary change, and they are again, I think, a good way forward.
Q 3.8:
“All records relating to cases where enquiries do not result in the substantiation of child protection concerns should be retained in accordance with the Trust record retention policy. Such retention should ensure secure storage, but allow prompt and efficient retrieval.”
I draw your attention to this:
“Supplementary records will be kept between red acetate dividers within the medical records folder. If the child’s medical records are the subject of a request for access by the child’s parents or carer, access to all or part of the notes can be denied where disclosing the information would in the view of an appropriate health professional be likely to cause serious harm to the physical or mental health or condition of the child or any other person.”
There is then reference to the Data Protection Act.
Pausing there, is there any observation, Dr Southall, about that in the context of evolutionary change?
A Well, I think – it is difficult this one – I think it is fair that there could be harm to the child if some information was made available to the carers or parent under certain circumstances. There could also be harm to them. So this is a sensible way forward; trying to protect them, that is all.
Q Leaving aside your opinion of it, to what extent does it represent evolutionary thinking within the Trust?
A I think it related to some of the issues that have been coming up with our cases, that the Trust and the legal department of the Trust have been struggling with how to deal with these problems that they were made aware of.
Q Just drop your eye down to the bold print in that paragraph, it reads:
“Where there is any doubt about retention or disclosure of information and where a decision to deny disclosure becomes subject to legal challenge, legal advice should be sought from the Trust’s legal department before disclosure takes place.”
Do you have any comment about that?
A That is what I thought we were trying to follow before, that is always to hand it over to the legal department to make the decisions.
MR COONAN: That is all I am going to ask you about that.
THE CHAIRMAN: Mr Coonan, as the Panel did not take a formal break when we were dealing with matters in camera, and I realise that we have lost some time for questioning, it would be appropriate to take a short formal break now.
THE WITNESS: Could I ask a question, Madam? I have been asked to do this task by
Mr Coonan and I started to do it looking at the references to chart whether they are clinical audit or research. I am not sure I can do it properly without seeing the original papers.
I started doing it and I realise that it is an important task. I can do it superficially but really
I need to look at some of the papers to remind myself what is in them. I just want to raise that. I am happy to do it but I want to do it properly.
MR COONAN: In the light of that, could I just ponder the way forward during the next 15 minutes?
THE CHAIRMAN: Yes. It is entirely appropriate that you raise that.
(The Panel adjourned for a short time)
MR COONAN: Dr Southall, we will come back to the question of your task at the end, if
I may. Can we move on, please? I am going to deal with a number of short topics one after the other. They may not be connected. Do you follow?
A Fine.
Q Can you take Appendix 1 in the Notice of Hearing? These questions are directed to Child A and Child H and those are the two Brompton children. The special case files you have told us were transferred from the Brompton to Stoke in 1992.
A Yes.
Q Looking at Child A and the reference in Appendix One to the MRI report, when you took the SC file from the Brompton to Stoke, did you know that there was or may have been the original MRI report in the special case file?
A No, I did not look in the files before we moved them.
Q Turning to Child H, did you know when the material, the SC file, was transferred to Stoke that the manuscript clinical entry signature Dr Samuels was or may have been in the special case file at that stage?
A No, I did not look at them.
Q So far as the letters are concerned, and there are five of them in relation to Child H, you have told the Panel that you accept that they were put in the special cases file either by you directly or under your direction or on your behalf.
A Under my direction or on my behalf but not by me.
Q For my purposes, I am broadening it out. So, in respect of those letters that were in the special cases file, when they were transferred to Stoke, as they were, did you think that there would in fact be any future risk to that child by such transfer?
A No.
Q Can you help the committee, please, as short as you may, why you did not think there may be a risk?
A Because, having left the Brompton, there was no further involvement of that hospital at all in that case. There was nobody there who would be contacted or would have anything to say or comment or contribute to the care of that child left.
Q Why?
A Because we had all moved.
Q What about somebody else taking over?
A Because there was no clinical involvement in that child after we left, the only reason for that would be as Mr Tyson suggested that possibly the child might come back with a complex congenital heart problem, which of course is extremely unlikely but, if it happened, then that is an issue. Of course, the medical record would reveal my involvement, so somebody would contact me. Everybody knew where I was in the Brompton. They all knew I was at Stoke, so they could always ring me up at any time.
Q Just a simple yes or no to this: was there in fact any significant risk to Child H by virtue of the fact that these letters were taken to Stoke?
A No.
Q Can I turn to another topic? You told the Panel during the course of your evidence that there should have been a discharge summary print-off in the special cases file which, in effect, should have acted as a tracer card. You remember the suggesting being put to you about the use of a tracer card?
A You mean in the hospital file, not the special case file. Yes.
Q In the hospital file?
A Yes, there should have been; that was the policy.
Q This is not a blaming exercise, do you understand. I just want for you to explain to the Panel what the mechanics were for executing that policy. Who in effect should therefore have printed off or constructed or placed a discharge summary in the main hospital file?
A Basically, it would have been my secretary. So obviously it was my responsibility.
I do not want to get away from that, but she would have been responsible for making sure, in liaison with the ward clerk, the lady on the ward who filed materials in the main medical records, and linked with her and provided her with these documents.
Q Again, this is a general question. In the absence of such tracer card or the equivalent, what therefore was the identification route or mechanism that was available to practitioners to make the link between the main file and the special cases file?
A All the practitioners, nurses in particular, on the ward knew the two systems existed. So if a child came in (supposing that one of your patients, say not a child protection case but a different kind of problem came back into the hospital at the Brompton) they would know that we had our special case file system as well.
Q Linked with that is the question of placing in the main hospital file documents which, in accordance with the policy that you have described, should in fact have been in the special case file only?
A I understand.
Q Mr Tyson took you to that. I am not going to go back and look at the document’s but you accepted that in a number of respects there was a breach of that policy?
A It was inconsistent in a very small proportion but nevertheless there were some, yes.
Q I used the words ‘breach of the policy’ but do you quibble with that?
A No.
Q In respect of that mal-placing, in particular you mention the role of the social worker, the hospital social worker?
A Yes.
Q I want to ask you, please, to describe for the Panel: at that time in particular – I am not concerned with now – how did the responsibilities of the hospital social work department interface with your clinical team’s responsibilities and indeed your own personal responsibilities? How did it operate?
A Because of the kind of work we were doing with covert video surveillance in particular, our department, in particular myself and the hospital social worker, were working very closely together for a long period of time. We had regular meetings with the social services department, internal meetings, to discuss the development of the covert video surveillance guidelines, which would be an example. So we worked together closely, very closely.
Q In so far as there was a mal-filing of a document, it has been suggested during your evidence, in answer to questions by Mr Tyson, that it might have been by the hospital social worker.
A Yes.
Q To what extent, as it were, does your writ run to control of the actions of the hospital social worker?
A You see, I would not call that mal-filing on the part of the hospital social worker. The mal-filing was mine. In other words, if I had a policy and I by mistake wrote that this document should go into, say, both, as Mr Tyson quite rightly pointed out, that is my mistake and my mal-filing.
Q I understand.
A As far as social services is concerned, they could do what they thought was right. They did not adhere to our policy on special case files being the place to put their records. In fact, it is even possible that they had their own records. I do not know whether they did or not, but I have a suspicion they might have done.
Q Again, one is conscious of changes in structure and so on. I am not concerned with that. At this relevant time, and we are looking principally here at Stoke from 1992 ---
A Stoke now? I was not talking about Stoke.
Q Sorry, 1992 to 1999, at that time, was the hospital social worker employed by the Trust or by another body?
A With the Brompton, the lady was employed I am sure by Kensington Social Services. At the Trust I think she was employed by the hospital but working closely obviously with the social services department. I am not sure about that but I think that was the case. For some reasons, I think it is the case.
Q I want to go now to one particular case. It is back to Child A. I want to ask you about the question of withholding files generally. Have you ever, that is you personally, withheld or sought to withhold a special cases file from either Mr Chapman, either Trust or the solicitors for either Trust?
A No, I have not.
Q If we look at C2 ---
A I just want to get this clear. You mean deliberately?
Q Yes?
A No is the answer.
Q Will you look at C2, tab 3 (a)? You were taken to this the other day. What we have here is a request by the parents of Child A to the Brompton itself in August 1987 in the context of wardship proceedings. Did you see that in the first paragraph?
A Yes.
Q Although there is a specific reference towards the end of the second paragraph to the MRI report, described there as the MMR but it is the same thing, the specific reference, that was in 1987. If we move on to tab (b), page 1, we know from this letter dated 15 December 1994 that at least the main medical notes and records, save for a number of outstanding ones we have seen listed, were disclosed to Tomson Snell & Passmore’s clients, the parents, early in 1993.
A Yes.
Q This is; the question. Between 1987 and 1993, Dr Southall, were you personally aware of any direct request for the MRI report?
A I cannot remember but I cannot see any evidence that I was. I cannot remember.
Q If you were aware of a specific request for the MRI at any stage between 1987 and 1993, would you have disclosed that?
A Of course. It is absolutely the right of the parents to have that resolved and there are no child protection concerns. It is actually the other way round; it supported that there was nothing wrong with their child’s brain.
Q Linked to that, can you say either yes or no or that you do not know, it is for you to choose, whether the MRI report was filed on the hospital computer at the Brompton prior to 1994?
A I do not know
Q If we move on, please, to look at the Crawley letter, C17, the clip of correspondence with the fax header “Front sheet” as the first document and it is stapled together.
A Yes.
Q That obviously is a photocopy provided for the Panel, and as we have seen already in the original SC file produced this is replicated exactly.
A They were stapled.
Q Stapled together.
A Yes.
Q As Mr Tyson said, the Panel now have an exact replication of that which is in the special cases file.
A Yes.
Q There are a number of questions arising out of this. Can you recall now in what form any of this correspondence came into your hands?
A No.
Q I use the expression “came into your hands” because some of it at least must have done because of your writing on the front sheet of C17.
A Yes.
Q You agreed that the writing on the fax front sheet which is yours must have related to the next letter, 24 November 1992, because it has the same fax sending date on the top.
A Yes.
Q If you were saying – if you were – that the letter of 24 November 1992 which was faxed on 3 September should go into the hospital notes on ward 112 ASAP, would there have been any reason for your direction to be any different in respect of the other documentation?
A No.
Q In that context can you turn up, please, C2, tab (v) at letter (e)? This letter is dated 14 October 1993, nearly six weeks after the correspondence that you and I have just been looking at.
A Yes.
Q I take you to the fifth line of the first paragraph:
“H [child B] was admitted under my care without a referral letter. In fact a referral letter did not arrive until some time after admission as a fax. It did not find its way into the notes until much later.”
A Yes.
Q Does that sentence in a letter written by you on 14 October 1993 help you in any way to assist the Panel now in 2006 as to what did or should have happened to what I am calling the Crawley letter?
A It is not an absolute issue, but in the line before the one you started reading it says:
“In discussions with her it was clear that there were so many different consultant paediatricians involved in [Child B]’s case that she arranged to invite Dr Issler because hers was the only letter that we had available in our hospital records.”
That could mean either, I have to say, but it is more likely to mean the main medical file. Then you have the next two sentences that you read. Because of the comment I wrote on this one we have just talked about ---
Q That is “Hospital notes on ward 112, ASAP”.
A Yes. I think taken into consideration between that and this it looks extremely likely but not certain that I was referring, in this letter to Dr Lewis, to the hospital notes. I cannot go any further than that because I cannot remember the specifics at the time.
Q My last question about the Crawley letter is this: although on the one hand you have told the Panel as to what your intention would have been or should have been in relation to this letter, can you say as a fact whether or not this Crawley correspondence has always been in the SC file?
A I cannot.
Q Can I leave that, please, and move onto the next topic, and can you turn up in C2, tab (vi), the Hempsons’ letter, letter ©, and look at the last page? My question is directed to the manuscript clinical entry, which is the last box in the column, do you see?
A I have it, yes.
Q Dr Southall, the original SC file is available in the chamber and if you need to look at the manuscript clinical entry again you can do so, but you see what you said through your solicitor on page 19, referring to this document.
“This document looks like an original. It is a note made by Dr Samuels. I think it is the note made by Dr Samuels on 16 March 1990 …”
My question is simply this: when that was written on 24 January 2006, the Hempsons letter, had you by that stage seen the original manuscript note, front and back?
A No.
Q When did you first see the manuscript note front and back?
A Two weeks ago, when we were here.
Q Thank you. Just a few questions, please, about computers. Just to set the scene,
I want to ask you something general about computers and then I want to ask you a question about Child H and a question about Child B. When you were asked to look at C10, which
I think you should have there – it is the print-offs and screen shots from the computer – you pointed out two things. One was that there was a computer reference in type to the case number – and it is useful just to look at page 1 as an example.
A Yes.
Q There is the special case number and the hospital number.
A Yes.
Q The case number was invariably completed, but the hospital number was blank.
A Yes.
Q Again, can you help the Panel, please. What were the mechanics by which this data came to be inputted?
A I think it changed over time but if we talk about Stoke, usually it would be the clinical nurse specialist’s job to update the patient data form on the computer from the referral letter and the hospital medical records, whatever she needed to fill in parts of this.
Q Again, this is not asked in any way to blame, I just want to understand the system. Should the hospital number have been typed in?
A Yes.
Q Can we turn, please, to look at Child H. If you look at C5 on C10 you will see a reference under the pro forma “Reference to diagnosis” and you explained what that was all about yesterday, but there is one particular element there, “Developmental delay”.
A Yes.
Q And there were some exchanges between you and Mr Tyson about that. I am simply asking this because I do not think you in the course of your evidence highlighted the specific reference for the Panel, and I am just going to use you now to do that. The question was whether or not there is a reference in the medical notes to developmental delay.
A Yes.
MR TYSON: On revision.
MR COONAN: Let us just pause a minute, to developmental delay. Your evidence was, after some searching, that there was.
A Yes.
Q Can we just look, please, at two references, C1, tab 2, letter (b).
A I have it, yes.
Q I just want to establish the reference. C1/2/(b) is the clerking-in note for Child H in September 1989.
A Yes.
Q If you look eight lines up from the bottom, there is just one reference I would like to ask you, please. “Thereafter his development regressed.” I do not want to yank it out of context, but as you read that note what does that refer to, the development regressed?
A Developmental delay is one way of looking at it. It is not the same, but you could interpret it as developmental delay.
Q Then if you turn, please, to tab (d), the first page, and you look under the SHO’s writing under “problems” about three lines down, do you see that?
A Yes.
Q Number 4.
A “Developmental delay”.
Q There may be some quibbles about other aspects of this, but what is your view, please, about the task which the operator is carrying out here, recording their reference to developmental delay on the computer itself?
A For each patient the nurse would aim to encapsulate the main problems that the patient had that were relevant to our work with that patient.
Q That is all I ask about Child H. Can we move now to Child B and the starting point is page 12 of C10. If you could have page 12 of C10 open and you will also need to go back, please, to C17, which is the Crawley correspondence that you had loosely a minute or two ago.
A Yes.
Q The question for consideration, arising out of your cross-examination, is this. On page 12 of C10, under the typed pro forma “Diagnosis”, do you see?
A I do.
Q There are the words “Recurrent apnoea – Crawley” and then “Bradycardia”.
A Yes.
Q The point raised by Mr Tyson was that he could not find a reference to bradycardia.
A That is right, I remember.
Q Can you now look at C17, which is your Crawley clip, and look at the sixth page. This document has as its heading August 1993, but on the photocopy somebody has stuck a “No” on a sticker over it so we do not have the exact date.
A I have it.
Q It is a letter to Dr Hyatt.
“This 11 month old well-known little girl was transferred from St George’s Hospital on 2 August for the assessment of recurrent bradycardias …”
A “Recurrent bradycardias and apnoeic episodes.”
Q Yes. The computer operator quite clearly inputted the reference to bradycardia.
A Yes.
Q It may be an obvious point, but can you just make a comment, if you feel able, how does it happen that this information may have got into the computer?
A Given the fact that we all looked fairly superficially before and could not see it, it suggests the nurse was looking through and picked it up from this letter that that was the main problem.
Q Does it help you one way or the other to discern whether or not this letter, which refers to the current bradycardia, was at that stage, when it was inputted into the computer, in the main hospital file or in the special cases file?
A No, it does not help me.
Q It is neutral either way, is it?
A I think it could be neutral. I mean, probably she went to the ward, because she was back and forward to the ward all the time with the patients, so you could argue perhaps it is more likely than not that it was with the hospital file, but I am not going to go any further than that.
Q At any rate, the computer operator accessed the material and put it in?
A Yes.
Q Thank you. I just deal finally with the computer, since it is central to one of the allegations here, and I just want you to deal with it again in the light of the questions which were put to you: was this information stored in the computer memory for any of these patients secret in any way?
A No.
Q Again, you have given the evidence already, but can you just gather it together, who had access to the computer?
A All of our department, including the linkage person with the wards, administrators and computer department, and then of course the recording results were sent to the referring doctor and the referring GP, or the patient’s GP.
Q When you were away from the hospital pursuant to the suspension, was access gained to that computer?
A Well, not by me.
Q No, not by you, but by others?
A I do not know. I think so, because it was taken away, but I do not know any more than that.
Q That is all I am going to ask you about records and computers. Can I now just turn, please, to questions about the individual cases, and first of all Child H and Mrs H. Can you have, please, the letter that you sent to Dr Dinwiddie dated 22 March 1990, which is C2. The first question is this: as far as your position was concerned in March 1990, in particular 22 March 1990, and assuming for a minute that the letter was copied in exactly the same form to a paediatrician in Gwent, assume that, were you in fact by this letter inviting that paediatrician to take over the overall care of this child?
A No.
Q Is the answer the same whether or not there was a covering letter to said Gwent paediatrician?
A Yes. I could not do that. That would have to be Dr Dinwiddie.
Q Therefore, and assume that it was sent in that form, assume even that there was no covering letter, what was your intention in sending the letter to the Gwent paediatrician?
A The most important was to alert the paediatrician to the possibility that a child with a tracheostomy, who was having life threatening events, might end up in their Accident and Emergency Department, being brought in by ambulance, and he or she should know that this child lived in their patch. That was the most important one. The secondary issue was to raise the possibility that there was a child protection problem here, and again he or she might need to be aware of it, depending on what happened.
Q Was this therefore a referral letter, and I am using that phrase deliberately?
A No.
Q On the assumption that you are right, that this was a letter that was sent with the intention that you have just described to the Panel, do you accept that it would have been better to have sent a covering letter?
A Not necessarily a covering letter, but it would have been better to have had prior communication so that they were expecting it.
Q Well, you anticipated my next question – covering letter or telephone call?
A Yes, it would have been.
Q Assuming that it was sent in this form to the consultant paediatrician, if it was not sent with a covering letter and a telephone call, what would you say about that fact?
A It is not ideal or even appropriate really.
Q If that was the case, would you criticise yourself for not doing it?
A Yes.
Q Let us take Dr Weaver. Let us assume that there was no covering letter sent to her.
A Yes.
Q Or no telephone call made to her. What was the purpose of sending this letter in that form to her?
A The same as to the paediatrician in Gwent.
Q Was she involved, to your knowledge, with the care of this child at that time?
A I probably knew, because I have seen the records now, that she had been in the past but was not at the time, but she was a local paediatrician and therefore the reasons I gave a minute ago apply.
Q Go back, please, to the assumption that this letter in this form was sent to Gwent and Weaver for the purpose that you have described.
A Yes.
Q Coupled with the less than satisfactory circumstances of no telephone call. Assume that.
A Yes.
Q Do you think that the content of the letter, coupled with that purpose that you have described, amounted to a breach of confidentiality of the mother?
A No. It is a breach of confidentiality, but it is not something that I felt, when one is weighing up what is in the best interests of the child versus the mother, and remembering that my patient is the child, then I do not regard that as a breach of the confidentiality issues that relate to me personally.
Q Others may look at it as a breach, a possible breach, and then the question of whether it is justified---
A That is different.
Q Do you follow?
A I do. That is what I am trying to say.
Q There is that. Then the next issue is do you think, in sending this letter in the form in which it was done, assuming it was sent in that form, would that amount to a breach of confidentiality in relation to the child?
A No.
Q Are your answers in that regard the same as regards the Gwent paediatrician as to the position vis a vis Dr Weaver?
A The same answers.
Q Let us just stand back for a minute to the question of it being sent at all. We know that it is sent in that form to Dr Dinwiddie. Let us leave aside Dr Dinwiddie, Dr Bailey and Dr Weaver, because we know that they received it.
A Yes.
Q Can you say now whether or not the letter in that form was in fact sent to the Royal Gwent?
A I do not know.
Q What makes you say that you do not know on the one hand, yet we do know that the letter was sent to the other three?
A I have heard that there is no record of it there. That is one thing.
Q Where?
A Gwent.
Q Right.
A But that is not absolute. I am just trying to think back to my secretary, what would she have done? She would have produced, say, four or five copies of the same letter, would she not, on my desk? I am thinking about how I would be dealing with correspondence. The top copy would be to Dr Dinwiddie, so I would sign that. The copied letters, I think now
I would sign all of them as well, hand sign them all, but I would have got to this one and thought, “Hang on, this is not right. We do not know where this is going to end up”, so what I would then have done, I think, I am just trying to reconstruct this, if I thought it was necessary I would have telephoned the doctor at Gwent, or found out who it was, but if I had done that, I would have changed the letter that went to him or her by perhaps a handwritten comment on it, in which case my secretary I think would have kept a copy with the name on and changed it. So all in all, whilst I do not know the answer to your question, I am trying to reconstruct it after this long time, and I am just going round and round, as you can tell.
Q Well, I am asking you a question based on events sixteen years ago.
A Yes, that is the trouble.
Q The second aspect of this letter I would like your help about, please, is the second page, page 24 at the bottom, and it concerns contact with the parents during the March admission.
A Yes.
Q There are a number of factors at the bottom of the previous page, the last paragraph which is carried over into the top paragraph on page 24, and the last sentence reads:
“We also feel that it is vital that [H] has his overall care managed by a local paediatrician.”
Then this, “We put this regime to the parents last week…” - I will pause there. During the course of your evidence you explained to Mr Tyson and to the Panel that you were using the royal “we”, or I think Mr Tyson said a team “we”. All right?
A Yes.
Q You go on in the letter, this is your letter, “…and they initially said that they would like to accept it.”
A Yes.
Q The word “regime” appears at the beginning of the sentence.
A Yes.
Q Now, Dr Southall, that phrase “they initially said that they would like to accept it” appears, as we can see, in the letter on 22 March. Where would you have got that intelligence from?
A Well, from the parents.
Q Would you have got that directly from the parents or via any other route?
A I cannot be sure.
Q Well, what are the possibilities?
A One, that the sentence is absolutely literal, that perhaps one or two of us (well, it had to be more than me) were with the parents and face to face we put it to them. That is one. Secondly, that some other members of the team put it to the parents face to face and they had both accepted it.
Q Then once the other members of the team had had the conversation?
A They would have had to have told me that they had had that conversation.
Q Who might “other members of the team” be as possibilities?
A Dr Samuels, with or without this clinical nurse specialist Ms Noyes.
Q Can you now, in 2006, actually recall the route which led you to write, and I quote again, “they initially said that they would like to accept it”?
A I cannot.
Q Is what you said in this letter truthful?
A I hope so.
Q Now, Dr Southall, I just want you to think carefully for a minute when answering this question: the Panel is concerned with events of sixteen years ago.
A Yes.
Q What effect, if any, does the fact that I am asking you questions and Mr Tyson is asking you questions sixteen years down the line have on your ability to deal with these matters?
A A very severe effect.
Q Can you explain that?
A Well, since then, since 1990, I must have seen thousands and thousands of children and families in my clinical work. That is it. I mean, it is impossible for me to remember every single patient and every communication and encounter with every one of them. It is just not practical.
Q When did you first get to know that this particular complaint was being made?
A I cannot remember now, my mind has … I would have been able to tell you two weeks ago but I cannot remember now and I do not want to give you the wrong answer. It must have been when I first wrote the first letter from Hempsons in 2002. I think it was around that time, but I do not want to be held to this because I cannot remember now.
Q If that is wrong we will be told it is wrong, but let us assume it was about 2002 – and
I am not asking for an exact date – first notified twelve years after these events?
A Yes.
Q My last question about this letter is about the fifth line of the last paragraph where you say:
“I have left it with the parents that should they change their mind we are here and willing to implement the approach outlined above.”
Two things: you agreed with Mr Tyson the use of the word “we”, you are a team really, in the earlier part of the letter, and here you are saying “I left it with the parents”.
A Yes.
Q What do you think that refers to?
A Me on my own, perhaps. It is only perhaps, I cannot be sure.
Q You know the evidence that there was a telephone call.
A Okay, yes.
Q In the second paragraph you say: “in communication with them today.”
A Yes.
Q When do you think that you “left it” with the parents, etc., etc?
A Probably in that communication of that day.
Q Can I turn now to Child D and Mrs D? You were asked a series of questions about the evidence that Mrs D gave about the encounter at or about a ward-round time.
A Yes.
Q Towards the end of the questions by Mr Tyson you said:
“I cannot really challenge her account, it is difficult for me.”
You referred to the timing, and this was of course in 1994.
A Yes.
Q Why, Dr Southall, is it difficult for you to deal with?
A Because, again, it is the same answer: thousands of patients have gone by in the meantime, and thousands of ward-rounds.
Q When did you first get to know of this particular complaint?
A The same answer really, I would have to check to give you the precise date.
MR TYSON: You can lead on that.
MR COONAN: I think we have had some evidence.
A I have forgotten. I am sorry, I am not thinking ---
MR TYSON: I am perfectly happy that my learned friend could lead on when the doctor first became aware either in relation to this patient or the previous patient.
MR COONAN: I am grateful. It is obviously a matter of record. I do not want this to be a memory game: you heard Mr Tyson.
A Yes, that is fine.
Q We have had evidence that the witness statement containing these allegations was served on Hempsons in July 2005.
A Yes.
MR COONAN: So, again ---
MR TYSON: Not really.
MR COONAN: Whatever the precise month or even the precise year I am not particularly concerned with for my purposes, but in broad terms, from your standpoint, was it a short time or a long time after the admission of this little child in December 1994 that you became aware of these allegations?
A A long time.
Q Although you, as one can understand, will have seen hundreds, if not thousands, of patients, tell us, how does that translate into you having difficulty in dealing with these matters?
A Well I cannot remember them.
Q Leaving aside the memory for the moment: is there anything that you might have been able to do if you had had earlier notice of these matters?
A If I had known immediately, say with Mrs D, if she had complained to the ward or to the trust there and then, or shortly afterwards, as you might have expected if there was something serious happening like that then I would have been able to deal with it because
I would have been able to have talked to the people who had been on the ward, I would have been able to talk to the nurses who had been on the ward-round, I would remember who it was, I could talk to them and say to them, “Is this what happened?” or somebody could do the same thing but now it is impossible.
MR TYSON: When I said my learned friend could lead on this, I anticipated that he would lead on the fact that complaint was made by this patient to the GMC in December 1997, again in July 1999 and again by way of statutory declaration in July 2002, not 2005.
MR COONAN: I am sorry but the evidence – and that is why I was particularly careful, and
I do feel exercised about this – the evidence of Mrs D is that there were complaints to the GMC in 1997, 1999 and there was a statutory declaration in 2002 and not a word in those documents about the current complaint, that is the point.
MR TYSON: There is, paragraph 97.
MR COONAN: Paragraph 97 uses the phrase “very abrupt”: that is all it says.
I cross-examined Mrs D about that. The question to the doctor is about the nature of this complaint and by that I refer to the totality of her evidence and the content of Appendix Three in your Notice of Hearing. That was the basis of the question. Now my learned friend will understand why the evidence was led, by agreement, that the witness statement was served in July 2005.
(To the witness) Forgive the spat.
A I am glad I did not answer it in the beginning.
MR TYSON: We will cover it in closing.
MR COONAN: (To the witness) Dr Southall, apologies: can I just ask you this: whenever it was precisely, how do you feel that you are equipped to deal with this allegation?
A I am not equipped.
MR COONAN: Can I turn finally therefore to Mrs M?
THE CHAIRMAN: Mr Coonan, I think it probably would be advantageous if we do manage to finish your re-examination before lunch. Do we have a reasonable prospect?
MR COONAN: Yes, I think we do. It will not take terribly long but please forgive me if
I run over by, say, ten minutes.
THE CHAIRMAN: Thank you.
MR COONAN: (To the witness) I will not take you to any documents in relation to Mrs B. You will remember in the records that social services came to visit you on 28 January.
A Yes.
Q We know in our records that you had a conversation with Dr Bentovim.
A Yes.
Q If you need to look at the social services log by all means call for it but let us try and do it without that because you have seen the logs.
A Yes.
Q Were you assisted in your approach at that stage by Dr Bentovim’s input?
A I was, considerably.
Q What was the input?
A He was very concerned to hear what I was telling him about this child’s death and the fact that the living child was making similar kinds of noises about committing suicide. He and I had communicated over many previous cases of fabricated or induced illness, and I had been involved in a number of cases with him, and he had a particular knowledge of the parents’ side of the problem, if you see what I mean, and I remember him saying to me words to the – not words, but the feeling I got from him was that this does need to be taken really seriously, the third scenario issue that is.
Q That was in late January?
A Yes.
Q The judgment of the County Court was made on 10 March.
A Yes.
Q You had a letter of instruction dated 17 March?
A Yes.
Q Did you yourself actually receive a copy of His Honour Judge Tonking’s judgment?
A I do not think I had it before I saw Mrs M, no.
Q Mr Tyson placed the judgment in front of you and took you through a number of passages.
A Sure, yes.
Q Did you come to see the judgment at a subsequent hearing?
A I think so, yes. I would have to check my report because I list everything I had seen. I think I do list this.
Q When you received the letter of instruction, what did you understand to be the fundamental core of your remit?
A To undertake a forensic medical discussion with Mrs M to try and address which of the three scenarios was likely to be the most likely problem, and whether or not the third scenario was or was not likely still to be active and therefore create a big risk to the younger child.
Q It was put to you that, first of all, social services interest in what I am going to call, and you may not like the shorthand but I am going to call Munchausen’s, and I appreciate your sensitivities about that but it is to use a rather broad brush here.
A Yes.
Q Things had moved on and that therefore the inference of the questioning was that you should not have been engaged in this exercise at all is ---
A That is one ---
Q --- inference that can be drawn from those questions.
A It was, yes. It was a clear inference.
Q Do you think that is right or wrong?
A Wrong.
Q Can you look please now at the judgment at C4? I will take you through a number of passages but I will not ask for your comments until I get to the end. The story is picked up in the learned judge’s judgment, as Mr Tyson pointed out, for present purposes at the bottom of page 4 at G and the judge correctly records that the last two points were not pursued in evidence, with particular relevance to point nine, yes?
A Yes, that is right.
Q Over the page, at 5F:
“Notable for its absence in those lists of grounds on which it is said that the threshold is crossed is the suggestion, which was a significant part of the local authority’s case when the Emergency Protection Order was obtained, that it was suspected that mother suffers from Munchausen’s Syndrome or the Syndrome by Proxy. There cannot be any doubt realistically that this was at the forefront of the local authority’s mind when the Emergency Protection order was sought, in particular because they sought to consult, and did consult, Professor Southall, although he does not make specific reference in his report to Munchausen’s.”
Pausing there, that is correct, is it not?
A Yes, it is.
Q
“It must be for this reason that the application for the Emergency Protection Order was made in terms that there was a fear that [M2] would suffer at the hands of his mother, and Mrs Inwood’s report [the Guardian] dated 27 February but written earlier, gave prominence to this aspect of the case …
It is right to say that neither the local authority nor the guardian say that they have now ruled Munchausen’s out but it is accepted that this cannot now be advanced as a ground for the necessary belief by which the threshold is crossed since there is no evidence at this stage to support it.”
A Yes.
Q Then the judge talks about “this shift of ground” at D and I drop down to F:
“As to this point, it should be borne in mind that it does not follow that, because the local authority have at this stage abandoned that particular argument that there are reasonable grounds for believing that [M2] is at significant risk because of Munchausen’s on the part of mother, all other grounds which they have advanced have to be treated as unfounded, far from it.”
And then at C to F there is a reference to your written report, and as the judge correctly notes, expressed by you to be “very preliminary”, do you see that?
A Yes.
Q At F the judge says: “Things have moved on since it was written”, that is your report.
A Yes.
Q
“What is more important is that Professor Southall is out of the country and so has not had the chance to hear any of the evidence adduced in this case, he has not given evidence himself and has not been cross-examined.”
Then at page 9C:
“It is the plain fact that it is accepted on all sides that this is a case which does require further investigation, regardless of the outcome of this application. This is significant because the inevitable inference to be drawn from that is that there are matters of concern which cannot be ignored. They are matters of real concern and they are matters which it is felt, rightly, by all parties to the case must be investigated in the interests of [M2] to ensure that he is not at risk, either because, in the light of the result of the investigation at one end of the spectrum, the concerns are allayed and there can be no grounds for anxiety that he is at risk with his parents, or, at the end of the spectrum the concerns are substantiated to the point at which the risk can only be avoided by his placement elsewhere.
In one sense, the fact that it is not in issue that the there are real concerns which must be investigated goes some way in itself toward establishing that there are reasonable grounds for believing that [M2] has been or is likely to be at risk of significant harm.”
The judge then deals with the matters directly relevant to the issue before him. Then I move on, Dr Southall, to page 25, bearing in mind this was an interim care order?
A That is right.
Q At 25G:
“I am troubled by the fact that the investigation still has a very long way to go…”
Then the judge comments on the timing of that. I turn now to a discussion after the judgment between counsel and particularly counsel for the local authority at 27E. Mr Anthony was counsel for the local authority.
“MR ANTHONY: What the local authority would seek to do, clearly, is to have a further report from Professor David Southall….”
There were then observations about the detail of how that was to be achieved. Then at page 35 there are comments by Mr Hillman appearing on behalf of the father, the parents being separately represented.
A That is right.
Q At 35D:
“MR HILLMAN: But we are already in any event, in view of the prospective involvement, if need be, of Dr Blueglass clicking into play if triggered by a positive Munchausen’s diagnosis by one of the other experts, because that is the only context in which Dr Blueglass would then come into play, if there is a positive Munchausen’s diagnosis.”
A Yes.
Q Then please go to 40G. The judge says this:
“And I think that what Mr Anthony [counsel for the local authority] is saying so far as the local authority are concerned is that they really cannot simply go to Dr Southall, who is really looking primarily at the adult element of the case, and not go to
Dr Bentovim.”
Then there is a further exchange by Mr Khan, who appeared for the mother:
“I think Dr Southall is obviously a consultant --- he is a paediatrician.”
Then the judge says:
“Yes, but when I say the adult side, he is looking at…. ---- ….query Munchausen’s.”
Mr Khan on behalf of the mother:
“Indeed, your Honour, yes.”
Then at 42B, this is Mr Anthony, preceded by a comment by the judge about the terms of reference:
“MR ANTHONY: Broadly similar, yes, because my understanding is from reading Dr Southall’s report that he is talking in terms of him principally looking at it as an expert of a child where there has been life-threatening – he puts it life-threatening – child abuse. That is perhaps not the best way to put it but, as I understand it, that is what Dr Black will also be looking at.”
I adopt that approach, Dr Southall, because Mr Tyson adopted the same approach with you. Looking at those exchanges, and I hope they have been extracted fairly, in the round, does that help you in any way, at least post-facto, in coming to a view as to whether or not your instructions were as you say they were?
A Yes, I had no doubt, and I continued in the wake of Mr Tyson yesterday to continue to put forward the view that I understood my role was to sort out whether or not that third scenario was a real danger to the second child. That was my main task. I saw it as that and
I think this judgment, looked at in the way you have looked at it now, does actually support that very well. I believe it now and that is exactly what I was aiming to do.
Q Now the last couple of questions: you have told the Panel that you carried out that remit as you understood it and you asked Mrs M a series of questions and that you covered or canvassed with her the three options?
A Yes.
Q One of the subjects within the options was a possibility that the child had been murdered?
A Yes.
Q Canvassing and discussing and raising options may be one thing, Dr Southall. Did you directly accuse this mother of murdering her child?
A No.
Q Did you accuse her of drugging the child?
A No.
Q Of hanging him from a curtain rail?
A No.
Q So far as that allegation is concerned I think I just ask you for the record: you remember now when you first had notice of that allegation? If you cannot remember, say so.
A I think it was to do with the complaint made by Mrs M to the hospital, to my Trust, during the period of my suspension, probably around 2001, but it had also been in the newspaper article. There had been a newspaper article that had been written about the mother’s allegations, these allegations, with a graphic description.
Q I am not concerned with the consent. I just want to know the date when you were first alerted to the allegation?
A I think that article in the newspaper was before the Trust, but I cannot be one hundred per cent sure without looking at it.
MR COONAN: Dr Southall, those are all the questions I ask in re-examination. I am conscious that there is the outstanding task and, Madam, with your leave, I might just ponder that point during the lunch adjournment, if I may. I do not want to waste time.
THE CHAIRMAN: Thank you, Mr Coonan. Mr Tyson?
MR TYSON: I have no objection to my learned friend discussing the nature and complexity of that task with his client, despite the fact that there are still some further questions to come. I am very happy that he should discuss that with his client.
MR COONAN: I am very grateful. Madam, if you are happy, and it is essentially on a logistical problem, nothing else, and yes, it may well be beneficial to you.
THE CHAIRMAN: I am sure the Panel would agree, if Mr Tyson has no objection.
In fact, we have now reached the point where it is the Panel’s turn to ask questions. As I made you aware earlier, I know the Panel wants some time to bring its questions together.
I have canvassed members of the Panel about how much time they think they need. Obviously it differs. I think am going to suggest that we will call you back when we are ready, if that is all right. I can give you some indication. I imagine it will not be before two-thirty. If Panel members need a little more time after that, we will advise you. Is that acceptable? We will be using this room obviously for reading.
MR TYSON: May I alert you, Madam, that at some convenient point I am going to make an application to ask further question of this doctor arising out of the new representation that was put to him in re-examination.
THE CHAIRMAN: Perhaps I can take advice now as to whether you would wish to do that or whether the legal advice would be that you should do that before or after the Panel’s questions. What is your own application?
MR TYSON: My own inclination is that it will inform the Panel’s questions if that application was heard and determined before the Panel’s questions.
THE LEGAL ASSESSOR: It might be helpful to know, Madam, whether Mr Coonan has any objection to such a course.
MR COONAN: I am never one to object to shut out matters which are relevant. If the Panel thinks that this is going to assist them, I am not going to stand in the way.
I am just a little concerned about the ambit of it and, bearing in mind the decision that you would be helped by having this material in front of you, and it is now there, I do not want to re-rehearse the history of it. Mr Tyson was served with the documents before the hearing began. Again, I do not want to shut it out, but equally there has to be some limit. One does not want to have the cross-examination on the question of records and polices being, as it were, gone over all again. There must be a limit.
THE CHAIRMAN: It occurs to me that if you wish to make such an application, then perhaps, if it is short, now would be the time to do it because then the Panel can consider that. Effectively, we can retire into camera to consider both your application and the questions. The majority of questions will be based on other matters.
MR TYSON: Yes, Madam. Two documents in particular were put to you and put to the witness in re-examination which neither the witness nor in particular Professor David, who was my witness on protocols, were asked questions about. It is right that I should be able to ask questions in relation to D19 and D20, the 2006 guidance. I would wish to ask questions on those documents which are new.
Can I say to my learned friend and to the Legal Assessor that, in order to put it into context,
I would have to refer to two other documents to deal with the evolution point, which again arose solely and only in re-examination.
THE CHAIRMAN: May I clarify this? When you say ‘two other documents’, are those documents that are before the Panel?
MR TYSON: They are. I am quite happy to have my learned friend jumping up like a
jack-in-the-box and warning shots from the Legal Assessor saying, “You are going outside the ambit”, but that does not deal with the principle, in my view. As a matter of principle,
I am entitled to ask questions. It is a matter of practice whether any particular question has gone too far.
MR COONAN: I think it is, from my standpoint, not particularly productive for me to argue from points of principle. My standpoint is that if the Panel think that this will be helpful, provided it is kept in proper bounds and limited to material arising from this document, then in principle I do not have any objection. It is a matter for you.
THE CHAIRMAN: That is perhaps helpful. Nevertheless, I think it probably is a matter that the Panel should discuss in private and we will do so.
MR COONAN: Could I just add one further point? By that, I am not conceding any point because my learned friend and I are going to have differences of view about this, as you can tell from the early part of the discussion. It probably is not possible to go back to that. It occurs to me that the Panel themselves may have questions arising out of those documents, and of course it is entirely a matter for you and would be to cover matters then when you ask those questions.
THE CHAIRMAN: Are there any further remarks regarding this?
MR TYSON: No. I maintain my application to deal with these matters in principle. I think my learned friend has agreed that I can indeed in principle deal with it, and so I do not think you necessarily need any specific legal advice on the matter. I think it is generally agreed that I can ask questions. If I go outwith the bounds, doubtless I will be shot down from at least two different areas.
THE CHAIRMAN: Is there anything you would like to add, Legal Assessor?
THE LEGAL ASSESSOR: No, madam. There seems to be almost, I should say, a united front in regard to the ‘principle’ approach and of course if anything emerges in the course of questioning which Mr Coonan feels is outside the ambit of what is appropriate, then he will doubtless raise it. The same will indeed apply to any Panel questions. My advice to him is that, in the light of that, he should allow Mr Tyson to further examine the witness in regard to these documents, which are now before you.
THE CHAIRMAN: Notwithstanding what I said a few moments ago, I would now put a different question to the Panel and that is: if any member of the Panel wishes to discuss this in private rather than simply accepting the Legal Assessor’s advice, would they like to indicate to me.
I have a clear indication from the Panel that we are happy to accept the Legal Assessor’s advice. Therefore, your application would be granted.
I think, nevertheless, it might still be a good idea if we combine lunch and Panel preparation time together. That might be the most efficient way of dealing with things. Then, if the Panel have any additional questions arising from your questions, I am sure they can cope with that.
MR TYSON: What time will we return?
THE CHAIRMAN: Having spent time on that, we are probably saying that it is not going to be before about 2.45. It is now 1.30. We will come back at 2.45, or as soon after that as we are ready.
MR TYSON: Thank you for that indication.
(The Panel rose for the luncheon adjournment and to confer)
THE CHAIRMAN: Good afternoon. Following the Panel’s decision on Mr Tyson’s application before lunch, the first thing will be for you to ask the questions that you wish to ask of Dr Southall before the Panel puts its questions.
Further cross-examined by MR TYSON
Q Dr Southall, dealing with the issue of evolution, if I can put it this way, of practice,
I am going to take you through a number of the protocols and essentially, just so you know,
I am going to ask you in relation to each is there any reference to separate or parallel files being held, do you understand?
A Yes.
Q Can you take C3 and turn to tab 7 section (d)(iv). This is a document which you helped us with earlier because you found the date.
A Yes.
Q And we know that we are in February 1993 territory here.
A Yes.
Q You also told the Panel that you had a role in drafting this.
A A role, yes, absolutely. In relation to the fact that there is no mention of separate files, can I take you, please, to page 3. Just to put it into context perhaps you should go to the previous page and see what the heading is, “Procedures and guidelines for all health authority staff.”
A I have it.
Q Over the page, the third paragraph down:
“A full medical assessment including growth status, neurodevelopment and emotional status, in addition to the full documentation of injuries is essential in all cases.”
A Yes.
Q Two paragraphs down:
“It is important to keep accurate factual notes on any injuries observed, who was present at the interview, what was said, what explanations were given, how the child was handled and any other relevant events. These are necessary to help in management but also to anticipate legal problems.”
Then at page 5, just to put it into context, we see a heading under 3.5 “Routine procedure”, do you see that?
A I have it, yes.
Q Then over the page in relation to nursing records, the third paragraph:
“Ensure that nursing notes are accurate and recorded contemporaneously.”
Then the last bit before “Follow-up procedure …”:
“When the decision of the case conference members is to place the child on the Central Child Abuse Register, full records must be made.”
A Yes.
Q Then “Follow-up procedure for children on the child protection register”, the last sentence of the first paragraph:
“Two copies of all written reports are required, one for the manager and one to be retained in the child’s records.”
A Yes, there is also, a bit further down, the appropriate health visitor or school nurse records as well.
Q Yes, that is where the case conference minutes should be held. Then on page 8, “General guidelines for doctors”, do you see that?
A Yes.
Q “It is important to keep factual notes of any injuries observed, who was there,
what was said, what explanations of the injuries … how the child is handled …” et cetera.
A Yes.
Q “The first priority is to protect … the child and the second is to initiate
a proper investigation.”
Over the page:
“A full medical assessment, including growth status, neurodevelopment and [the like] is essential in all cases.”
A Yes.
Q Nothing so far about any separate record or separate set of notes.
A I think I commented on this before when you asked me, namely that this is more to do with general child protection than factitious or induced illness problems.
Q Would you accept under “Paediatricians” that in relation to the roles of paediatricians there, there is nothing in that section about keeping any separate records?
A No.
Q That is February 1993 and then we come to January 1994. Can I take you to (d)(vii), still in C3. This is the North Staffordshire Hospital Trust, Staffordshire Social Services and Staffordshire Police “Guidelines for the multi-agency management of patients suspected or at risk of suffering from life-threatening abuse resulting in cyanotic-apnoeic episodes”.
A Yes.
Q Did you have a hand in drafting this?
A I mentioned this morning that I led it, from the hospital end.
Q Here we are dealing with extremely sensitive material, are we not?
A Yes.
Q Again, can I take you to paragraph 5.10 on internal page 10?
A I have it.
Q This deals with CVS, which is covert video surveillance.
A Yes, that is right.
Q It indicates in the fourth line down, if we can pick it up:
“All tapes must be labelled and kept in a safe place, and are the responsibility of the NSH.”
Is that the North Staffordshire Hospital?
A Yes, it is.
Q “At the conclusion of recording, video tapes and logs will be stored by the
Staffordshire Police, and available to social services, in accordance with the recommended practice regarding the video recording of children. When the proceedings have ended, the video recordings will be returned to the Academic Department of Paediatrics, NSH. If no proceedings are being considered, then the tapes and log sheets will form part of the medical record and retained by the NSH.”
Do you see that?
A Yes.
Q Can I take you, please, to page 11 at 6.7 under “Management of surveillance staff”?
“Accurate notes must be made of the above during the full duration of surveillance. These must be written legibly on continuation sheets, consecutively numbered and provided by the hospital. Cross reference to the tape numbers must be made in the log. The surveillance nurses may be asked to explain the behaviour of the suspected abuser to the police. Each page should contain the child’s name, hospital number, page number, date and time. In addition, all entries must be signed using the full signature of the nurse.”
Again, there is no reference here to special case number or a separate file, is there?
A No.
Q Indeed, throughout this document again there is no mention of keeping the medical records in a separate place.
A They were though, they were kept in a separate place.
Q There is no mention of that.
A I accept that, there is no mention of it.
Q Then you told us earlier that there was an inquiry in about 1999.
A Yes.
Q And you have told us that as a result of that inquiry the advice was distilled – I think was the word you used in evidence – into other recommendations.
A The inquiry by the Trust.
Q Yes.
A Yes.
Q Can I ask you, did that inquiry by the Trust look into your personal recordkeeping?
A Yes, it did.
Q Did it look into the question of special cases files?
A I think only as part of it, I do not think it specifically focused in detail on that. It looked at the whole recordkeeping in relation to child protection matters.
Q Have the results of that inquiry been published?
A No, it was an internal hospital inquiry, but the result of it was that what we saw this morning if you like on recordkeeping was the 2006 one that was produced by the four authors, including Martin Samuels, who was also investigated with me during the suspension. He was given the task of leading that development after the suspension ended.
Q I do not want to go into matters that are not within the purview of this Panel but is it right that as a result of lessons learned in that inquiry the 2006 guidelines came into existence?
A Yes, partly, certainly.
Q So we have reached 1999. I apologise, I have missed out one, 1997, which is in (d) again in the same file at (vi). It is page 20, this is the North Staffordshire Hospital NHS Trust Child Protection Policy & Procedures.
A It is the upgraded one, yes.
Q Upgraded from the February 1993 one with which I started.
A That is right, yes.
Q So January 1997, page 20.
A I have it.
Q I took you through this so I will deal with this quickly. It is right, is it not, that it is recorded that if there were problems whilst the child was on the ward, as it were, we see at the top right hand side of page 20 that the concerns should be on a separate sheet of paper but stored with the medical notes.
A Yes, that is correct.
Q Not be kept by the bedside.
A No.
Q Then at 3.1L
“Where parents have been informed of concerns regarding Child Protection, staff should record all information in the nursing or medical notes – as appropriate.”
A Yes.
Q Again, no reference to holding a separate file in here.
A No, as I mentioned yesterday, this is standard child protection, not factitious and induced tertiary referral material.
Q Even whilst on the ward, on the file, it should be separated by a separate bit of paper. That is 19976. 1999 was the inquiry and then we get to the 2002 guidance at D19 which
I need not take you to because the relevant bits are incorporated in D20, which you produced in re-examination. Would you accept that the first mention of the possibility of keeping separate files in any of these protocols was in the 2002 Department of Health guidance?
A Where is that?
Q Just before we get there – you were taken to it this morning by Mr Coonan. The first mention of the possibility of keeping separate files in all this documentation was in 2002.
A Possibly the Royal College one, I would have to check it, and that was just before, was it not? I cannot be sure, but it is around that time.
Q Around 2002. Then we get to 2006, which is the date of D20, although within it says January 2005.
A Yes, that is right.
Q The situation here is the normal situation we have at 1.1, is it not? Five lines down:
“The information shared with parents would be documented within the medical records.”
A Yes.
Q Then 1.2 deals with the special situation where there are concerns of a potential fabrication or inducement.
A Yes.
Q And the concern there in relation to that, if we pick it up from the fourth line down,
“In such cases, parents or careers who become aware of the concerns of professionals may evade assessment by agencies or induce further illness, thus placing the child at greater risk.”
A Can I just explain the “evade assessment” because I do not think we explained that this morning. For example, supposing a baby is having apnoeic attacks and they found out that we are thinking these might be fabricated or induced, the events would stop because they would know immediately somebody was aware. That would still leave the pathology, if you like, of the parent/child undealt with and undealable with because from then on if there were no further events it would be very difficult to do anything to help unravel the situation. That is what it means, to evade it if you like.
Q Going a few lines further down you pick up the words, “However, there may be …”:
“However, there may be significant risk to the child should the parents or carers know of the concerns about fabricated or induced illness, particularly before medical assessment has reached a stage where there is adequate information available so that the statutory agencies can ensure protection of the child.”
A That is exactly what I meant, yes.
Q This is at in-patient time, is it not? We are talking here of the child in the hospital.
A I am not sure of that actually.
Q Can I assist you by looking at the last four lines?
“In these circumstances, it would be preferred practice to maintain a separate medical record detailing these concerns, which should be kept in a secure place away from the immediate clinical area of the child or parents.”
A Yes, that makes it clear.
Q “It is important, however, that these records are accessible to key staff
involved with the family as necessary, and so there needs to be an agreed procedure.”
All this, paragraph 1.2, I suggest, deals with the time when the child is an in-patient and the parents have potential access to the medical records.
A Could I just say there that quite often these patients come in and out frequently. They might come in with apnoeic episodes, they resolve, they go home – they keep coming backwards and forwards. That is why I queried it a minute ago; they may not be all the time in the hospital, they may be coming in and out.
Q That slightly contradicts what you said in your defence earlier when you said that the important thing about this is you are never going to see these children again. That does not quite square, does it, Dr Southall?
A I am talking about here, for this purpose here, this situation here.
Q In this situation here we are dealing with when the child is an in-patient.
A I understand. What I am talking about here though is this is local policy for the North Staffordshire Hospital. For instance, if a child is coming in and out with apnoeic episodes locally, not referred as a tertiary referral, then until they reach the point where somebody cottons on that this is fabricated or possibly induced, there might be in and out situations. It is different to the tertiary referral.
Q Just look at the title of this document, Dr Southall, “Departmental procedure and guidance for the recording of child protection information where fabricated or induced illness is suspected”.
A All these things start off not as fabricated or induced illness, but as potentially natural illnesses, and it is only later, after they have been coming in and out, that people start to realise it may be fabricated or induced, and that is when they may be referred to a centre like ours in the past, or, here, locally it would be dealt with on this occasion.
Q This also covers the situation where the child has been referred from outside North Staffordshire to your hospital, does it not?
A Well, that is not really happening at the moment because of the situation.
Q I suggest that it was to deal with that just as much as it was to deal with ones which North Staffordshire was the local hospital. If you go to 1.3, please:
“Where the parents/carers are not to be informed of the concerns, the supplementary record should include the reasoning behind the decision not to inform them, the prevailing circumstances and should identify those involved in making that decision.”
Now, that has never been the case with SC files, has it?
A No. This is a new recommendation, probably from the inquiry. It is a good one, and I agree with it, it is very good.
Q “The decision should be kept under review so that it remains in operation only for the strictly necessary period or periods of time.”
I suggest to you that that is only whilst the child is an in-patient.
A Well, I would say probably until the child is sorted out and secure and no longer at risk. I would put it that way.
Q We can even possibly accept that, but thereafter the matter should go back into the main medical records.
A Well, I think there is an element that that is the latest thinking, and I do not object at all to it.
Q You were taken by Mr Coonan to the “Departmental Guidance” at heading 2, and taken to the various bullet points there, and in particular you were taken to the fifth bullet point from the bottom, in about the middle of the page, do you see that, “all records should be kept in a secure place”?
A Yes, I have got it.
Q Again I would suggest to you that that advice –
“all records should be kept in a secure place so that unauthorised persons cannot access them and to ensure that the records cannot be tampered with or test results altered”
- that is again dealing with the situation where the child is an in-patient and there is a risk that the parents can thereby get hold of the records?
A I agree with that.
Q Then at 2.2, again it is said that the decision to have a supplementary record should be made at a strategy discussion.
A Yes.
Q Again, that has never been the case with SC files, has it?
A No.
Q Would you accept that one of the advantages of having a strategy discussion was that everybody would then know of the existence of the SC files, or the supplementary files?
A Well, it certainly makes sure they do, even if they do not already know, they should; it will help with that.
Q Then it indicates later on in 2.2 how a number of hospital personnel, just dealing at the bottom of 2.2 on page 4:
“From the perspective of the hospital, agreement of the need to keep supplementary documentation should be reached initially by discussion between the consultant caring for the patient, the named doctor and named nurse ….. and the ward manager”.
Again, would you accept that at no time during the cases we are dealing with was there such involvement of those people in the creation of the SC files?
A No, I would not accept that, that is to say that we knew, the named doctor and the named nurse knew, and the ward manager knew, the hospital child directorate managers knew that we had special case files.
Q In the Brompton?
A Yes, I am sure they did, exactly the same principle.
Q Well, I suggest you are wrong about that. You see that these people – the paediatrician, the named doctor, the named nurse and the ward manager – all four have got to agree at the hospital that there should be a supplementary file for this particular child.
A That is what it says here.
Q I am suggesting to you that that is not the situation in relation to any of the SC files that this Panel is dealing with?
A There was no formal agreement, as there is now, stipulated – there should be – but, as I said before, the key nurse, the doctors involved and the managers did know that we had special case files, and they knew that we had the child protection material in them.
Q Again, dealing with paragraph 3 under “Roles and Responsibilities”, it indicated the general rule was that information should generally be recorded in the main hospital record, that is at 3.1.
A Yes.
Q It sets out that which we have read, that if the parents become aware there could be a problem, therefore leading to the supplementary record. That is the end of 3.1. 3.2, as I think you accept, where the situation predominantly arises is in in-patients.
A Well, that is the “predominantly” word, yes.
Q Therefore should be kept in the ward manager’s office. There is a difference between the ward manager’s office, is there not, and a locked store on a different site in the Academic Department?
A Yes. It is not a separate site as such, it is just next to the children’s unit, but still it is on, you could say, a separate site.
Q You agree, when taken to 3.3, that there was a system to identify in the child’s medical record that there was additional information, made clear by a red acetate divider?
A Yes, we have been through that, I agree with that.
Q Then at 3.6:
“At the completion of the in-patient stay, or when child protection concerns are substantiated and the child is adequately protected, it would be appropriate for the supplementary records to [join in] the ….. medical record”.
Do you see that?
A Oh yes, we went through that this morning.
Q Again, you have made no attempt whatsoever, have you, to put in matters which you kept for whatever reason in the SC file back into the medical record after the in-patient stay?
A No, we did not.
Q You recall Professor David saying, and he was not challenged about this, that completely different considerations apply when you are actually dealing with the problem as it is emerging as an in-patient and thereafter, and you recall his evidence was as this, that one would put matters back into the main medical record as soon as the immediate concerns were over?
A That is what this says, that is what he said.
Q That is what I have suggested has been the practice throughout. It is not a question of evolving. This is the practice throughout time.
A It should be?
Q Yes. Do you agree with that?
A As I said to you before, you can look back and say “This would have been better”. I accept it is a good approach. It is a matter of opinion. I think there are still some issues to be dealt with, but this is a very nice way forward, because, as you saw, if they are readmitted you take it out, so it is a very nice solution to the problem.
Q What I am suggesting to you, and is the basis of Professor David’s evidence, was that the practice of possibly keeping a separate record whilst the child is an in-patient is well recognised and has been recognised for a very long time.
A Yes.
Q Do you accept that?
A Oh yes.
Q But immediately after the child is an in-patient you then restore any of those records back to the main hospital file, I suggest, because the risk of the parents getting hold of the record is then minimal.
A Well, as I said, that is not universal. This is a guideline that is for the North Staffs.
I am aware of hospitals where they do not put them back in. We did not. There are arguments for and against it, I accept it completely.
Q So the broad proposition I put to you, Dr Southall, is this, that in none of the guidance that I have taken you to, up until 2002, was there any specific reference to holding separate files for children, and thereafter, when there did become guidance, it made it clear that that was really for the in-patient, as it were, acute stage where investigations were under investigation, and it was potentially dangerous for the parents to know what you were thinking, and it was in that sole area where the entitlement of separate records was clear.
A Can I just respond to that point?
Q Yes.
A I accept that argument. Remember though that we were one of very few units in the world really that were dealing with considerable numbers of children with factitious or induced illness on a regular basis, and so we were finding our own way forward with no guidance at all in that area, because we were one of the few centres dealing with it, and doing our best as time went on to decide on how to deal with the issues. As you can see, this issue of keeping confidential was the main point, is followed through in 2006. There is an agreement that you do have to be very careful about the confidentiality of the records kept in factitious or induced illness cases. So I still think this is an evolution of which we played a part, a significant part, in shaping future policy, and then to be criticised because we did not do it perfectly in the beginning, I do not think is quite fair myself. That is my opinion.
Q Well, you are entitled to it, and the complainants, with the support of Professor David, are entitled to theirs.
A Yes.
MR TYSON: I have got no further questions.
THE CHAIRMAN: Dr Southall, this is now the Panel’s opportunity to ask questions.
I think everybody has got questions. We will start with Mr Simanowitz.
Questioned by THE PANEL
MR SIMANOWITZ: Good afternoon. I am afraid that I have not organised my questions in the sections following through the case as it took place. Perhaps I could start with a couple of questions on this most recent exchange.
A Yes.
Q 1.2 in the last document, the 2006 document, it was put to you that this was referring to in-patients, and you suggested that patients were going in and out. Were they going in and out once they were suspected of abuse, or child protection matters arose?
A No, no, not usually. What happened was, it depends on the hospital you are talking about, but if it is a relatively naïve hospital, let me put it like that, who did not know a lot about factitious illness, and perhaps we are talking in the past now more than recent, they might come in lots and lots of times before somebody would raise the question mark over the possibility of this. At that point it depended: they would either refer to somewhere like us, or, if they had expertise on site, they might try and address it themselves. At that point there would be a tendency to keep the child in hospital for safety reasons.
Q From the point of view of this document it would be clear that this was referring only to in-patients in that situation?
A In that sense, I agree that predominantly this was an in-patient issue, and I think the word “predominantly” appears somewhere in the document.
Q It has probably been dealt with a number of times, but I am still not clear in my mind as to why you did not, once the cases were over – thinking about it now, you say it is a good idea that the documents should go back from the SC files – why did you not put them back in the---
A Okay. These were cases coming from other hospitals around the country. In other words, supposing that, we have got an example, coming from somewhere near London, coming to Stoke, we are involved, we look after the patient in our unit for a while, and then we make a diagnosis of child protection problem, the child then leaves, goes back to the original referring hospital or whatever. At that point we are not going to have any further involvement in the clinical care, but we need to keep an eye with what is happening with regard to the child protection, because we will be asked lots and lots of questions and it might go on for years. You saw it did in Child D. It went on for four years, I think, before
I completely finished with the case. At that point we are not going to have any further involvement in the clinical care but we need to keep an eye on what is happening with regard to the child protection. We ask lots and lots of questions and it might go on for years. You saw it did in Child D, it went on for four years I think before I completely finished with the case. At that four year point the argument that we could have put the material into the North Staffs Hospital medical record is a fair comment. I still have some reservations though because it is such highly confidential material that we had gathered, at case conferences and so on, going into medical record that is not going to be used again but which is not as confidential as our unit’s policy. But I still accept that we could have done that. There is not a great argument against it.
Q When you say you had reservations, you therefore disagree with the recommendations?
A No not really, I still think there are some issues about this, to do with privacy and confidentiality but I do not feel strongly about it at all. I am not involved now so it is difficult for me but I can see both sides of this discussion point and I still think it is evolving, but I do not have a problem with returning the material to the medical records when it is absolutely and completely over. Keeping them in one place so that you can refer to them regularly I think is useful.
Q Now I will go back to the beginning, as it were.
A I am not sure I answered your question. I hope I did. I am happy to carry on if I did not.
Q When you were first talking about Child A you were asked, “Do you remember Child A?” and your answer was, “Yes, I do.”
A I do remember him.
Q Others you do not remember as well. Was there a particular reason why you remembered Child A?
A I remember all of the cases. I remember them as children and as families but what
I cannot remember is individual parts of them, like I cannot remember, necessarily, the
ward-round in Child D’s case, but I remember the overall, and, of course, it has been kept in my mind constantly by virtue of what has been happening with those cases since because Child A has been almost continuously – communication of some sort with me, indirectly or through the media or whatever, about the case so I am continually reminded of the situation.
Q I asked the question in relation to Child A but had it been asked in relation to all the children, in each case you would have given the same answer?
A I would, yes.
Q You referred to the fact that there was no risk in taking the SC files away from Brompton.
A Yes.
Q The question of having an accident outside of the hospital arose, but what if the child simply got ill? There are clinical matters, I think you accepted that …
A Yes.
Q As a lay-person it seemed to me there were matters which affected the health of the child. Would there not be some risk of knowing that the child was “treated” at Brompton that people, doctors, not necessarily paediatricians, would go back to the Brompton and the files would be incomplete, the integrity of the files would be interrupted?
A We went through this in the sense that the child has gone back to their referring hospital, and let us assume that is just one hospital that is looking after them thereafter, that hospital would be knowledgeable about what had happened in the Brompton because they would have been communicating with us until we had finished with the case, and they would be sending me copies of correspondence, and the GP was getting copies of correspondence. You saw all that. Between the GP and the local hospital, I still cannot see how the material that is in, say, Appendix One, which is the material in question, would have (a) not necessarily been available in one of those two sites, safety. The only material that would not have been there would have been the child protection, case conference material, social services material, that kind of material, and mixed material, yes mixtures of those.
Q And those would contain matters about the child’s health which were not child protection?
A But the medical side of that, the big mixture, there is the mixture of partly clinical and partly child protection, the clinical material is still in the hospital where the child is being cared for and in the GP records, the clinical material, because I was copied in or I copied to the relevant people whenever I replied or when they sent me material it was copied, so a letter to me from, say, Professor Warner, was copied to the GP and to Professor Strobel at Great Ormond Street, so they would have copies as well, and they were still looking after the patient. I was not looking after the clinical side of the patient so they were just keeping me informed for, well, politeness in some ways, just to keep me informed. It was not because
I was involved. The child protection matters were in the hands of social services and there were records that this child had been cared for by social services, that was on the GP record and the local hospital record, so if they wanted more information on that they would contact social services being the main agency for child protection, not doctors.
Q I understand that. Forgive me, I am still not absolutely clear: if you have a scenario where the child moves, goes to another GP, has an incident, a respiratory incident, and the GP might go where the respiratory issue originally came up, which would be the Brompton.
A Firstly, the GP records would be transferred in total to the next GP, that is standard practice. In there would be details of where the child is currently being cared for, which hospital the child is currently being cared for at, which would not be ours, but it would be---
Q But the child might be cared for for some other reason, if there had been a fair gap before there was a respiratory problem, I am not choosing one---
A Oh, you mean the whole thing is finished?
Q Yes.
A Everything is over, say 10 years down the line?
Q Maybe, yes.
A 10 years down the line, the child is no longer attending the local hospital.
Q Yes.
A He is with the GP obviously, he must have a GP still. The GP records would be transferred so the GP would have all the correspondence from all the hospitals involved with that child, not just ours. It would have, in the case of Child D, Southampton’s records and Great Ormond Street’s and the GP could look and see, well, yes, the child was in the Brompton – no, in North Staffs. There was a closure on North Staffs. The child then continued to be cared for at Great Ormond Street and Southampton and the local one in Berkshire.
Q Sorry to interrupt but confine yourself to a particular issue, and I have used a respiratory problem. The GP looks up and sees the last time this child had a respiratory problem was at the Brompton. What was the nature of that problem? How was it treated? What was the prognosis? Was there a chance of recurrence? The GP refers the child to the Brompton, and on opening the hospital notes there is no reference to that because it was in the SC files, is that correct?
A That is still not fair in a way because there would be a summary. Remember in all of the cases that you are looking at I dictated and wrote a high-quality summary of what happened, either in the form of a discharge letter or a summary, which was in the Brompton Hospital, or the North Staffs Hospital.
Q In the medical records?
A In the medical records there. What is not in, and that is the subject of Appendix One, is follow-up correspondence which did involve other doctors and consultants, so the main reason for us being involved has been covered by the discharge summary and/or the discharge letter. We went through the letters and the summaries I think earlier on.
Q If I could turn to Child D now. I could give you a transcript reference but I am not sure that is necessary, but you gave evidence that you thought that mum was exaggerating the symptoms.
A Yes.
Q And you thought that the first step was to hold a strategy meeting. To me as a lay-person that sounds a bit extreme. Mum is exaggerating the symptoms and you immediately move to a strategy meeting: can you explain that?
A Sure. There was a summary was there not, a detailed summary of my concerns on that case written on the discharge that explains a lot of issues about my concerns. The big issue in that child was that the mother was using, frequently, the drug adrenalin to treat anaphylactic shock, episodes of shock. Now, adrenalin is an incredibly powerful drug and if you give it inappropriately you can die, if it is given into a vein, for instance, by mistake, or given too frequently it is dangerous. The child also had Cushing’s Syndrome – there is a note about this in the reports – that is to say there was evidence of a large amount of steroid drugs being given and absorbed by the child and he had the side effect of excessive steroids, which are not trivial side effects, they suppress immunity and all kinds of other things, and if these were not necessary, that is if the steroids were not necessary, the adrenalin was not necessary because of exaggeration then I was quite concerned. That has not come out up till now. This is the rationale behind why I was so worried about the exaggeration in that case.
Q Perhaps I misunderstood because I thought you said that this was the least serious end ---
A Yes.
Q --- this was exaggeration given to fabrication, what you talk about now I would have thought amounts to fabrication rather than exaggeration.
A No, not necessarily. It is a spectrum. At one end of the spectrum you have parents killing children by suffocation or poisoning, and then halfway down you have them fabricating illnesses and the doctors are the ones who are doing a lot of the harm, and then you have the exaggeration end to the spectrum where the side effects of the treatment that is being given inappropriately and excessively can be harmful. So it is at the lower end of the spectrum. There was no evidence of induction of illness or anything in this case but it could still be harmful and/or dangerous and so that was why I wanted it looked at properly. The child was also on a very restricted diet involving not being able to eat hardly any foods without potential allergy, he was in a wheelchair when he should be running around, being treated normally, and this kind of issue, so there was a lot of worries about it and strategy meetings are not just - I mean, a strategy meeting might have decided that the way forward is to persuade the mother just to try and not be so worried and to move in a … It does not have to be a heavy-handed strategy meeting.
Q I come to the corridor incident. This is an incident about which you have virtually no recall.
A That is the problem, yes.
Q That is the problem. The mother, on the other hand, has it imprinted on her memory.
A I understand that she gave evidence to that effect.
Q The scenario, I understand, is that you were walking down the corridor with other doctors and nurses and she accosts you basically.
A That is what she said, yes.
Q I have a little knowledge of doctors and the medical profession. I just wonder whether an eminent doctor in discussion with other doctors and his team being accosted by a patient who is known already or is suspected of quite serious matters would not be, at the very least, irritated?
A First of all, looking at my records to try and understand this, there is a record of a ward round on that day. That record is taken by Dr Suchek, the SHO, and it is in the medical records. If that was the meeting time, and it seemed that there was only that one meeting she remembered, that would have been on the ward. I am trying to retrace what had happened. The concept of walking along with lots of other doctors and being interrupted does not fit that particular part of the record. But anyway, coming back to your point, I can only say that I do not think I would have been irritated.
Q Even assuming that her evidence is absolutely right, you think you would not have been irritated and certainly not angry?
A I do not think I am like that. I cannot make out to you what I am like. I think the only way that you will ever know what I am like is if other people talk about me. It is very difficult for me to put it across, but I do not think I would have been irritated by her, for the reasons Mr Tyson went into. He made it clear that it was not for good reasons, and I think you are the same. I really do not know how to answer it. I cannot take it any further than that.
Q I come to Child M, and the interview you had. You have given us details, and you have repeated them a number of times, that you knew that you were focusing on scenario three?
A Yes.
Q Scenario three would amount to a serious criminal offence?
A Yes, it would, if it had been correct.
Q If it had been correct?
A Yes.
Q So there was a real possibility that the answers that Mrs M gave you would implicate her in a very serous criminal offence?
A If there were incriminating answers, yes.
Q But there was a possibility because you were trying to either eliminate or establish that scenario three was right?
A Absolutely.
Q And, had you established it, you would be talking about a very serious criminal offence?
A Yes.
Q You probably know that when the police interview someone and there is a possibility that there is a serious, or even any offence, they go to great pains to protect the person who is being interviewed?
A Yes.
Q And the sort of thing they do is that they will time the interview; they will say when it starts and when it stops?
A Yes.
Q They will tell the person involved what the interview is going to cover, what the purpose of the interview is, what they are at risk for?
A Yes.
Q They will introduce the people there or themselves. They are obliged to offer the person to have someone with them. They have the right to call their solicitor?
A Yes.
Q Usually nobody else is present but they might be, and they would explain that. You did not do any of that?
A And they would tape it as well.
Q And they would tape it as well. Thank you.
A They would tape it. These are criminal proceedings.
Q That is not criminal proceedings. It is the possibility of a criminal offence.
A Yes.
Q You are saying that you have had a lot of experience. Did you not realise that Mrs M was exposed to something like that and rather leave it to the police to do that questioning?
A Well, the police knew of my involvement and they knew what was happening. The Child Protection Division of the police were implicitly involved from the beginning in this case and they had decided, I think, that there were no criminal proceedings to go ahead or to be investigated any further. I then pushed it a bit over the pole, as you know, and the toxicology, and they did look into that again and, as you know, later still they decided again that there would be no further investigation by the police. So this is not a police matter any longer. This was a child protection matter.
Q Did you raise with the police the specific issues that you were going to ask Mrs M about?
A No, I did not. I only raised it with the social services.
Q Would it not have made sense to say, “Look, you have not covered this? You have not covered the pole? You have not covered the belt? You have not covered the toxicology. Do you not think you should deal with those?”
A I did not do that. The social services department, as a result of my comments in that direction, had passed that on to the police
Q Before the interview?
A Yes. They knew that I had reservations about this before the interview. I did not speak to them myself but if social services felt in any way that I was going to be possibly interfering with a criminal investigation that might follow, they would not have allowed me to pursue this, clearly. They were along the lines that this was an appropriate way forward in order to help with the child protection issues. Sometimes child protection comes first and then later there are criminal proceedings. Sometimes it is the other way round. In this case, the criminal side had been rejected, so it was only matters of child protection that I was involved in. These questions they were wanting me to deal with, so I did. I can tell you, I do not like having to do it. It was not easy for her, I am sure, or for me, or for Ms Salem. If
I had thought that we were interfering with the police in any way, I would not have done it. That is a very important point.
Q I am not suggesting that you were interfering with the police because, as you say, they had decided not to take further action, but you were pursuing questions which might have led, had you got the answers that you thought you might get. What action would you have taken? Would you have referred it back to the police?
A Having the social worker there was the key because they are the lead agency for child protection. They liaise with medical people and with the police in parallel, all of them, with them as the lead.
Q Is that the purpose of having a social worker there?
A It was not the only purpose but it was important because I did not actually personally think anything was going to come out of this interview that would incriminate her, but I felt it was important that we went through the whole exercise because the court, as you heard this morning, wanted this issue resolved, this issue of Munchausen’s, as Mr Coonan put it in a broad sense. I was an expert on that condition and I have expertise in it, and they wanted me to do it. If the police had wanted to do their investigation, they could have done it, and yet I was the one doing it. I know what you are saying and it is a grey area, definitely.
MR SIMANOWITZ: Thank you, Dr Southall. I may have some other questions but I should give someone else a chance.
DR SARKAR: My questions are going to be of a general nature. I hope I have kept to the heads of charge. It might not be blindingly obvious from the beginning. If it is not, I am quite happy to be interrupted and I will try to explain where I am going. I am interested to know what your feeling about the role of an expert in a child protection case is. Who would you say is your master if you have been retained as a child protection expert?
A The Family Court.
Q The court?
A The Family Court.
Q So the court is your master, irrespective of who hired you?
A Yes, definitely.
Q How is that role different from the role you would ordinarily have as a paediatrician?
A As a paediatrician, your main aim is to act for the best interests of the child you are looking after individually, that one child in front of you. That is your main allegiance, if you like.
Q I am not putting words into your mouth but it is conveyable that in your expert role when you are responding to your master, the court, you could end up doing something that may actually not be in the child’s medical interests. Is that possible or is that stretching it too far?
A One can get into discussion about what is in the best interests of children ---
Q Restrict it to the best medical interests of the child.
A Medical interests? I cannot see that there is likely to be, and I may be wrong, but I cannot think of any way in which if you are giving an expert opinion on a medical or child protection or other related event, by giving the best of your opinions, regardless of who is there, who has engaged you, that it could possibly be harmful to the child if it is the truth and the best you can do with your knowledge.
Q I will give you an example. If the court orders through you or arranges through you to have the child assessed at a far away place because that is the only place available for the child to be assessed and it is 100,000 miles away from the parents, and it is obvious every time, despite what goes on, that the majority of children want to stay with their parents, that separation might not be in their interests but it has to be done?
A You could find a way round it. I have often been to visit children in their home rather than have them come to North Staffordshire. There was a case where I went to Portsmouth, for instance, to see a child with the guardian in their own home, in their own environment, or I think in one case in their foster home, I remember, and also at their school. So I do not think that you should move the child if it is not in their interests to move them. You should move yourself in that example.
Q Following on from that, you are still to my mind acting as an agent of the court, reporting directly to the court.
A Yes.
Q Do you see yourself as someone who has to get to the bottom of the truth if you think it is important for the court or it will assist the court?
A Although I am an agent of the court, the primary objective is what is in the bests interests of the child.
Q We are assuming that the court is only interested in the child and the court does not have any other business. It is a Family Court and they do not have any other business. They are only interested in the interests of the child. In that situation, do you feel that because the court has instructed you or the court has accepted your opinion, your job is to get to the bottom of the truth?
A Yes.
Q In that search for the truth, if you come across differing views, and I know all of this is before the Woolf reforms, to compare the contrasting opinions there are and present them and explain why you chose the one ---
A Why I only checked one and stick with another, that is absolutely right.
Q That was your practice and has always been your practice?
A Yes. That is why, when I write the reports, I try and give everybody’s view. You saw my final report. It listed everybody’s comments, as best I could remember. It is quite an exercise but I think it is important, yes.
Q I am going to be slightly more specific now. It is about Child M2 or Case M. You said that you are an expert in life-threatening emergencies?
A Emergencies?
Q Life-threatening abuse and FII?
A Yes, that is correct.
Q We all know that you are. That is why you were hired by the social services in the M case?
A Yes, it is.
Q Did you get the feeling that they were asking you to examine if Child M2, the surviving child, could be susceptible to LTE? Is that what you understood they were asking you to do?
A I think what I understood they were asking me to do was to find out what risk there was to Child M2, particularly was there a life-threatening risk to that child, not from himself, but from somebody else.
Q That is why you were asked to comment.
A I think so, yes.
Q As a paediatrician what is your threshold, if I may ask – I am not a paediatrician – of opening child protection matters? How much harm do you have to suspect as a paediatrician before you act? Is there any guidance in statute or in your professional practice?
A There is guidance in the Children Act and its subsequent modifications. In these protocols that we have here we saw advice on how to identify potential abuse, because most often you will have, say, an injury or an illness which is going to be natural, not unnatural or abusive – most often. Most of the time you are not looking for abuse, you are just treating illnesses or injuries as they come in, but there are certain factors which point to abuse which you need to know about if you are a paediatrician – any paediatrician, not just an expert paediatrician – and it is important that you know that. If you come across one of those indicators, you might start the process, that is, you might report. For instance, a bruise on the face of a baby, you would not accept that without some investigation, and there is a clear process of what you would go through with the social services as the lead.
Q What I was thinking of – this is for my own understanding of the process – a physician for the elderly might see an injury differently to a paediatrician and put a `different threshold to it.
A Yes.
Q If I was seeing a child with a bruise on the face I would not automatically assume that there was something going on, but paediatricians are trained to suspect abuse at all levels, are they?
A Yes. For instance, if you look at all children who are running around, they have bruises all over their legs, that is standard, normal bruises, but a baby who is not moving around, say of six months or nine months or whatever, with a big bruise on their face, then you would become worried as a paediatrician, whereas maybe a non-paediatrician would not have had the training to recognise that that is a warning sign and that they need to think about it.
Q Staying with case M, from Ms Salem’s written record “It seems you need me on board” you allegedly said. Why would you say that she needed you on board, or did you not say it?
A I cannot remember, but I am assuming I did because she wrote it down. I am not sure exactly of the context the phrase came into, but I think what she was saying was that they were suspecting, before they contacted me, that there was a possibility of induced illness in M1, or the possibility that he had been killed. That was their concern, that is what she was saying to me and I might have said “If I am on board I can investigate that for you if you want me to.” I had already been contacted, as you know, by Anne Grey, and I cannot respond to her. I said to her that she should go to social services and I believe that was the right thing to do because she was raising all these issues, and the proper person to raise them was not me, it was social services, which she did, and then it came back to me after they had investigated because they were worried.
Q And of course because you are nationally well-known for this kind of expertise.
A Yes.
Q I cannot get my head around hypothesis 3. The instruction letter from the Shropshire County Council came a lot later.
A Yes.
Q But before that, when Ms Salem was talking to you, and in subsequent scenarios when you interviewed Mrs M and in your report you talked about the three hypotheses. I do not know whether you will be able to answer this but did you interview Mrs M to rule in or rule out hypothesis 3? What was the focus, or were you not bothered whatever comes out?
A It is the last, it is neither to rule in nor rule out, it is to investigate it. As you said,
I had done a lot of work in this area and there are not many people who have spent hours and hours talking to parents who have done terrible things to their children, such as suffocate them recurrently or whatever. I had an expertise in that area – if you like, it is forensic paediatrics, whatever you want to call it. They wanted me to make sure, if I could, to give them some indicators of how likely or not it was, and my report – the one we have seen, not the preliminary one but the subsequent one – made it clear that I just did not know, that
I could not answer, either rule in or rule out completely what had happened. I just did not know.
Q You raised a few further questions.
A I raised further questions for them to investigate, or the police to investigate if they wanted, as we said a minute ago. There were things that needed investigating that I could not investigate because I am not a police officer, so I could not go to the ambulance and say, you know, what happened when they rang up, I could not do the tests on the curtain pole, I could not ring the pathologist and say did you or did you not do the forensic toxicology. All I could do was say these are questions that I think would be helpful for you to know the answers to.
Q I like the term forensic paediatrics. Staying with that, forensic paediatrics, you interviewed Mrs M and you had somebody with you, a professional who was involved in that case.
A Yes.
Q Did you introduce Ms Salem?
A I am sure I did, or else it was the other way round possibly, she might have introduced me because she knew me and I had met her before, so if anything it was the other way round, that she would introduce me to Mrs M because she knew her already. I am pretty sure she did, I really am. From my memory of Ms Salem – and I have only met her twice – she is very professional and therefore she would have introduced me, I am sure.
Q Did you tell Mrs M what Ms Salem was doing, because it is unusual. As she said,
“I was shocked to see him.”
A It is not unusual in my experience, I have done a lot of interviews with social workers.
Q Without introducing or explaining why they are there.
A Without going into detail. If I had known the mother before the social worker was there then I would say “Hello, this is Mrs So-and-So, she is a social worker”, but it was usually the other way round, it would usually be the social worker saying “This is Dr Southall, he is an expert on this and he is going to talk to you and I am going to listen.”
Q Would you have ordinarily, and especially in this case, have explained why you are doing the interview to the interviewee?
A I would have assumed that she had been told why she was coming to me.
Q But you would not, as a matter of general principle, explain, “I am seeing you for the court or for social services and I have been asked to do this”?
A It probably would be a one-sentence thing like that, some kind of introduction.
I would not just launch into let us talk about this. I would have said something like that, but
I cannot remember saying it so I cannot inform you that I definitely did. I usually would,
I would usually say, “I am here on behalf of the family court, as you know they want to know the answers to some questions.”
Q Would you give the confidentiality warning, like what you say here is going to be used in the court, people are going to read about it, it is going to be copied widely?
A I do not think I did that. It is a good point, but I do not think I did it.
Q Moving on to a slightly more general point, this relates to the creation and holding of special case files. Do you use the term departmental notes and special case notes interchangeably? I saw the term “departmental note” written somewhere in one of the documents.
A Possibly, yes, it could be. I think we usually called them special case notes.
Q I am just curious, why did you call them special?
A Special investigations.
Q You said it was created for audit.
A Yes, one of the reasons.
Q The main reason you relied on that was to research into things. In the 80s, audit was not as well formed as it is today.
A No, correct.
Q Very few people, I dare say, even knew what audit meant in the 1980s.
A Yes.
Q Clinical audit, I mean. Financial audits people knew all about.
A Yes.
Q At that time, as you understood it, how did you differentiate between audit and research? I am not asking you to tell us about the 2006 thinking, we know all about it now, but in the late 1980s or early 1990s when you were doing this work, what was your understanding of the difference between audit and research?
A Audit was the gathering together of information on a group of patients where each patient had been treated as a patient individually and you collected information about their health – in specific terms, obviously. Each time you were doing that you were benefiting or trying to help that individual child, but then at the end of the day you might have 20 cases of a condition which you had been treating in those 20 children and that would form the basis of a report which would help others to treat them in the future.
Q That would be the audit.
A I would call that audit. Research has no benefit whatsoever for the individual children in the research project; what you are trying to do there is to identify the answer to hypotheses or questions such as what is the normal oxygen level in the blood as measured through the skin of 100 children aged one to five. That would be a research project. You would have to have informed consent from the parents, and the child if old enough, and then you would do your recording, you would analyse the results and collate them and then you would say the range of normal oxygen levels in the blood in these 100 children aged one to five who are healthy is X to Y. That is the difference, if that helps.
Q That does help, thank you. I have just realised that you had explained it before, but
I just wanted to be sure.
A That is fine.
Q Going back to publications and research, I am going to give you a hypothetical situation – and this is not a very scientific or even learned observation. Suppose you had treated, say, 50 cases of back pain by prescribing a gold necklace, or something equally ridiculous. You persuaded the editor of a professional journal to publish what you were saying, that gold necklaces are good for the back.
A Yes.
Q They publish it and everybody knows it. Would that be considered research or audit or something else?
A I think that would be audit.
Q And in that case you would not need the individual consent of all the guys who were wearing the gold necklaces.
A No, because they would be anonymous, you would not be reporting each individual person and writing a report on each one, you would just be looking at, say, indicators of back pain before and after the necklace. You could design it as a research project if you did it from the beginning. You could say, right, I am going to find out whether these gold necklaces help back pain or not. In that sense what you would do is a randomised controlled trial and you would say half of them had the necklace and half do not, or half of them have a gold necklace and half have something that looks like a gold necklace – something like that. That would be research and you would need consent before you started that.
Q The methods will be more rigorous than just stating---
A Oh yes. Often research starts by first having a small number of cases where somebody has tried a new technique on individual patients. That is how it starts. So then you might have, say, five or ten patients where you have tried something new out on them, and you would have consent, you would tell them then, “Well, we are going to try this new technique. Are you willing, are you happy to try it? We do not know whether it is going to help or not”, and you would have to tell them all the side effects and possible problems. If that worked and looked good, then you would proceed to a proper trial, proper research. There is a grey area there, you see, between audit and research, which is why I brought that in, because ideas have been developing on that.
Q Now, Child H, I have got some references here.
MRS LLOYD: I am sorry to interrupt your questions, Dr Sarkar. Madam Chairman,
I require a comfort break.
THE CHAIRMAN: Fair enough. We would in any case have raised it in the next few minutes. I think we should have a break because Dr Southall has been giving evidence again now for an hour and a half. If you could bear with me, I think when we come back we should consider where we are in terms of timing. I think we should take ten to fifteen minutes now in any case, and then perhaps we can consider where we are.
(The Panel adjourned for a short while)
THE CHAIRMAN: The first thing I would like to do, having returned, is to say that it has become apparent to the Panel that we are not going to be able to complete Dr Southall’s evidence in a reasonable time today, and that it would not be right to continue for the length of time we anticipate that we need for a variety of reasons, including the fact that everyone has had a long day, and we anticipate that the time needed could not reasonably be done in any extension over our normal sitting time that would be fair and just to everybody concerned. We canvassed earlier that we should continue tomorrow morning if this situation arose, and it seems apparent to us now that it is inevitable, so we are proposing that we will sit hopefully from nine o'clock tomorrow morning, if that is acceptable. We would not anticipate that it would take more than half a day, if that. I trust that is acceptable. I know it is inconvenient for many people, but it seemed to be the least of the evils open to us,
MR TYSON: Madam, the Complainants will be represented by me.
MR COONAN: Perfectly acceptable.
THE CHAIRMAN: Thank you. So given that we are going to sit tomorrow, we are proposing now simply to finish Dr Sarkar’s questions, although I understand that there may be other matters that will need to be raised; if those are now appropriate to be left until tomorrow, perhaps you could advise?
MR TYSON: They are not only appropriate to be left until tomorrow, but can only be dealt with tomorrow, because they can only be dealt with after my learned friend has had a proper opportunity to take certain instructions from his client.
THE CHAIRMAN: The matter of future dates, is that something that you feel that we should also deal with tomorrow?
MR TYSON: Correct, because of the same reason.
THE CHAIRMAN: So we will now---
MR COONAN: Could I just make an observation about that. Dr Southall does not know the extent of the canvassing that has been taking place about dates, for the reasons that have just fallen from Mr Tyson, and while it is quite right that I am not permitted to discuss the full underlying basis which might determine length in defence witness evidence, I would not propose to go into it, I just wondered actually whether it might be useful even to mention the fact of the extent of the canvassing which has taken place and let Dr Southall know this evening, so that he does come tomorrow at least, having slept on the matter overnight, at least aware of the Panel’s current thinking. I am not asking for a decision from you, but I think in fairness to him, he ought at the end of the sixth day to know really what the Panel may be thinking.
THE CHAIRMAN: It seems to me that pragmatically that is possibly the only way forward.
MR TYSON: Madam, I have been encouraging my learned friend throughout to speak to his client about the timing, and I am perfectly content that he can do it at any time.
MR COONAN: I think everybody is aware of my scrupulous approach to this, but I think the time has come when I should take a different course.
THE CHAIRMAN: So if we have dealt with all those matters, I think we will just let
Dr Sarkar complete his questions and then we will rise for today.
DR SARKAR: Good afternoon again. Dr Southall, I want to talk about Child H now.
I wanted to ask you about the dangers of ventilation if they are unsupervised, but I think what I will do now, in the interests of time, is I will take you to C16, and very briefly on tab 5 refer you to a couple of documents. Page 83, the last sentence of paragraph 2; page 84, the fourth paragraph from the top.
A Yes.
Q Page 116, the third paragraph from the beginning; page 118, the middle paragraph starting with “It was subsequently discovered”; and finally page 120, almost all of the third paragraph and the last sentence of the final paragraph on page 120.
A Those are excellent summaries of the dangers of a ventilator, but actually it is more than that. There are two things: one is the tracheostomy and one is the ventilator. My concern was not just the use of a ventilator at home, which this addresses completely, but the presence of a tracheostomy bypassing the airway, because it is prone to obstruct, and, if there is mucus in it and it blocks, it is very dangerous indeed because there is no airway at all. That was more dangerous than the ventilation complications that are outlined in those paragraphs that you have raised.
Q But the pursuit of ventilation against medical advice in your head also contributed to the overall harm that could happen?
A Well, the only thing was, and I think Mr Tyson did point to this very clearly, that the mum was begin given almost contradictory advice; that is to say she was being led by
Dr Dinwiddie to, you know, what she saw as going along with the ventilator, if you like, and there is clear evidence of some of that in the documentation. I was saying he does not need ventilating and he does not need the tracheostomy. So I do not think it is fair on the mother to criticise her for pursuing the ventilator, given that she had some correspondence and communication with Dr Dinwiddie in support of that.
Q No, I was not suggesting criticism, I was just merely saying that it is another area where you could possibly foresee harm as a---
A Definitely harmful, yes, definitely.
Q Now, assuming for the moment that that threshold of harm, where a paediatrician, consultant paediatrician, triggers child protection matters, would you say that when that trigger has been activated it is appropriate to let other people know who may be able to help in the situation, and that might include paediatricians elsewhere?
A Yes.
Q When you were writing with that concern in mind, what would be on the top of your list of priorities, what would be on the top of your mind? Would it be parental consent, would it be future litigation, would it be complaints, or would it be the benefit of the child?
A Well, it is the last. That is the overriding one for a paediatrician.
Q Even if it violates that parent’s right to know?
A Yes. That is the law.
Q Yes. I just wanted to---
A Sure. That is what the Children Act says. That is what we follow as paediatricians all the time. Now we know though that of course this can upset parents, and so you do your best to avoid it if you can (upsetting parents I mean), but equally if it comes to a choice between notification with regard to risk and harm versus upset to the parent, you have to, as a paediatrician, go for the child’s best interests.
Q Thank you for clarifying that. Now coming to the case in question, the H case, if the trigger has been activated in your head, would you say that sending a letter to an appropriate area, not necessarily the area, but general area, is better than sending no letter at all, or what would you say, looking back?
A Oh no, it was better to send one than not send one. It was in fact my duty to send one on two grounds: one was the tracheostomy. I have been through that. That was the main ground. The other ground was to trigger, if you like, to use your word, that there was concern in our unit of a possibility of child abuse. We had to do it. It was the overriding duty.
Q The document we have been given this morning, after much deliberation, D19, on page 39, paragraph 4.29, I will just read it for the record:
“It may be helpful to invite a colleague, not involved in the clinical care of the child, to review the notes or to give an opinion as to whether any organic condition may have been overlooked. Likewise a general or community paediatrician may wish to discuss the case with a tertiary paediatrician who has knowledge of rare disorders.”
Now, admittedly this is very new, 2002, but does that summarise the way paediatricians work in child protection?
A Yes. If they suspect factitious or induced illness, this is the right approach, this is the approach they would take. They would make sure they are not missing a rare medical condition, by talking, or referring even, to a specialist in that rare condition, but if they were really concerned about it, they would pursue it.
Q In other words, you would cast the net as wide as you have to to capture the benefit of the child?
A So for instance Dr Dinwiddie, who is a specialist in paediatric respiratory medicine at Great Ormond Street, was worried, so he contacted me with a letter, as you saw, and the handwritten note, because he was worried about that. He also knew though that we specialised in Ondine’s. I think we have got about twelve or thirteen cases, which is a very rare condition. So we specialised in that as well. So there were two reasons: one, the child protection one – but it is, as you say, spreading your net, talking to other people.
Q Now, I promise this is the final question on this, unless through your answer there is another one. The manuscript, which I think has been referred variously to as crib sheet by me, I like that term, and it is on Appendix One, Child H, number 2, undated – it is the white Appendix One.
A Oh, the manuscript note?
Q Yes, Dr Samuels’s handwritten note.
A The manuscript note, yes, I do, I recall this, yes.
Q Can you remember, albeit it is a number of years ago, was it your practice to ask a junior to prepare a summary of the case so that you could rely on that and dictate letters?
A I cannot remember. I cannot remember is the answer, I just do not know. It is possible. Certainly that is what it appears to be in this case but I cannot remember if it was my usual practice, I just cannot.
DR SARKAR: That is all I have, thank you very much.
THE CHAIRMAN: I propose that we rise for today and that we reconvene at 9 o’clock tomorrow or as soon thereafter as those travelling can make it. Dr Southall, I need to give you the warning about not to discuss the case overnight other than on the matters for which you have dispensation.
THE WITNESS: Thank you.
(The hearing adjourned until 9.00 a.m. on Saturday, 2 December 2006)