GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)
Saturday 2 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 SIXTEEN)
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
Questioning by THE PANEL 1
Further cross-examination by MR TYSON 30
Further re-examination by MR COONAN 40
Housekeeping matters discussed 43
THE CHAIRMAN: Good morning everybody. We are going to carry on with the Panel’s questions this morning. Mrs Lloyd.
Questions by THE PANEL continued
MRS LLOYD: Good morning. Dr Southall, some of your evidence I have difficulty understanding so the questions that I am going to ask you will be for clarification purposes.
A Fine.
Q Can you clarify which social services departments you had an SEF policy with, a special case file policy?
A With the social worker at the Royal Brompton Hospital, she knew that we were keeping our records separately and she represented the hospital, and, I think, Kensington Social Services, and the hospital social worker at the North Staffordshire until – actually, she did not stay for ever, she eventually had to leave but she represented the hospital and Staffordshire Social Services.
Q You have said that most of your referrals, the tertiary referrals, were from all over the country.
A Yes.
Q Did you develop a policy with social services departments in these boroughs?
A About the material, no.
Q That is the difficulty I have in understanding this, because if the majority of your referrals were tertiary referrals and you were therefore dealing with patients from all over the country, the key worker for the patient would be in the boroughs that these patients lived, so the difficulty I have understanding is what was the benefit of a special case file policy. What was the benefit for the key workers who were primarily monitoring and being responsible for the patients when they left your hospital after such a short stay?
A Okay, so if we take as an example Child D, who came from near London to Stoke, that is that case: when the child was discharged the social services department I contacted was Staffordshire, initially – that is local to our hospital in Stoke on Trent. Remember, Martin Banks I contacted him and wrote a report and suggested a strategy planning meeting. Subsequently, after more discussions with Great Ormond Street and Southampton, eventually contact was made with Jonathan Haverson who was looking after the child locally, but not on a child protection level, on a welfare level: it was a child in need rather than a child in need of protection. So all the time I was amassing data, child protection related data in the special case files, in a confidential way, and every time I needed to do something I went straight to the file – I did not have to get the hospital records out to try and look at them, sometimes that being a problem, so we had it immediately in the office and I could look at it whenever I wanted to.
Q That is the other part of your evidence I do not understand and I would like further clarification on.
A Sure.
Q You were amassing data – actually, if you could just run through the key elements of the information you were keeping because what I am trying to understand is, is this information of more benefit to you? I am trying to see how it is going to benefit social workers from the very many different boroughs who were working with these children.
A First of all, what did we collect? What data did we put into the special case file? As I said, we are talking now about the tiny proportion who are child protection related only, yes, the rest of the 4,000, about 4,450 were non-child protection, so in the child protection related ones would go strategy planning minutes, case conference minutes, correspondence with other doctors involved, or social workers. With regard therefore to your question about the social worker’s involvement in the periphery, in the area where the child lives, they would have all these documents already, themselves; they were originating from them. They would not have, necessarily, all the medical to and from correspondence but they would certainly have the social correspondence.
Q Can I just stop you there: the case conference minutes came from the social workers to you, from the boroughs the children lived in?
A That is correct.
Q And the strategy meetings came from the ---
A The same. Well …
Q Did they send this information to you before the child came into hospital for overnight monitoring?
A No, what happened was the child came to us for overnight monitoring, with, say apnoeic attacks or – you have seen the problems?
Q Yes, I know.
A When and if a decision was made by us that everything looked like a child protection problem, not a medical, non-protection problem, once that decision was made any further communication such as highly confidential strategy planning meetings or case conference minutes would be sent from social services to me and put in that special case file as a place for keeping it safe and all together.
Q Would you say that the primary person to benefit from the special case file was you?
A In some ways it was in that it gave me the opportunity to keep together all the information on each of these child protection cases in a way that I could access it quickly and easily and respond appropriately whenever necessary to social services usually, or to other paediatricians if they were involved as well.
Q You said in evidence that you recognised that the social services department is the lead department in child protection work.
A Yes.
Q You said you had meetings with them to discuss your special case file policy in order to establish it.
A No, I do not want to say that we had a special meeting with social services to set up a policy, that was not the case. I do not want to mislead you on that. What happened was they were aware that we were keeping the social services related, child protection related material separately from the hospital medical record.
Q Sorry, who was aware? Was it the local social services department or nationally, any social services department when you got a referral from them?
A No, it was the local ones, either the Brompton social worker department or the Stoke social work department, the in-hospital. There are two parts to the social services.
Q Yes, I know.
A Sorry.
Q I was under the impression from the evidence you gave that you set up a policy but it was not in writing, you said that decisions were recorded in minutes. All I am trying to establish is who you set up that policy with, and you are saying it was with the Royal Brompton and with Stoke?
A Yes, internally, not externally with social services.
Q It was an internal policy?
A Yes.
Q Was the policy ratified by the social services committee? Why I am asking that is because child protection work is very, very important work and the children and families’ division of social services are responsible for the social workers with child protection and when you use the term “policy” I was envisaging that this had some kind of management ratification of what you were doing, or was it an informal thing between you and a few staff?
A It was informal, not ratified; it was between me and my staff, plus the hospital social worker.
Q On Day 10 you were asked a question about problems of material being stored in a special case file (Day 10/17E). You said you did not perceive any problems at that time about material being in the special case file, which was not in the main library file, but you could now see that there were some issues. Could you clarify for the Panel what the issues are that you can now see?
A I think the main problem is the accessibility to parents of the children who wanted to pursue litigation against me and the hospital or the hospital and me, or my department, that was the main problem, accessibility, and some of that could have been aided by some of the suggestions made in the 2006 policy we discussed yesterday, namely the red marker tracer in the hospital records, if that had been there I think there would not have been such an accessibility problem.
MRS LLOYD: Would you turn up C3, tab 7, (d) (i), page 75. I also have the reference of Day 10, page 14G, and what I want to ask you questions about is the letter from Dr Jawad.
MR TYSON: It is D1 page 1.
MRS LLOYD: Dr Southall could you just explain the relationship between Dr Jawad – he is described as a paediatric registrar, and I believe you said that he worked at the research wing of the Royal Brompton Hospital, he was based in the research wing of the Royal Brompton Hospital, is that correct?
A I cannot remember exactly what he did, but looking at that headed notepaper it says “National Heart and Lung Institute” at the top of the letter, which suggests that he was working both on the wards, clinically, and in the research part of the hospital, with me probably, because – unless he was doing cardiology, and he may have been, I cannot remember: so he was both, he was in clinical and research.
Q Could you just explain the relationship in terms of his need for the use of special case files?
A I think he was writing to the management at the Brompton. That is the clinical part.
Q He is actually just writing to the ward clerk, is he not? He has copied it to the ward clerk.
A The coding office, the management of the records, I would suggest is what he is writing to.
Q I accept that.
A I think so. I think the coding office was some form of medical records department within the Brompton Hospital.
Q My main question really is: what is his need for using special case files, his involvement?
A I think this was acting a bit on my part on behalf of me because, if you read the first sentence, he is saying that after discussion with me. He is trying, I think, to help the doctors on the ward, the registrars and house officers who admit patients, to manage what were quite a lot of patients coming in on a regular basis for overnight monitoring, most of which were not obviously child protection but were medical problems. What he is suggesting, I think, is that in order to make it easier for the doctors on the ward, they would not have to write a full discharge summary every time a patient of mine came in if my summary sheet, the recording result sheet if you like, was put into the medical records, the main medical records, by the ward clerk. That is my understanding of what this is about; it is to try and help them.
Q Can we move on? You have been asked this question several times by both counsel in fact and the panellists have asked you. I wanted to ask you again because of a different kind of scenario which I do not think has been mentioned. You explained why you did not think having a special case file for a Royal Brompton patient at Stoke posed any risk to a child, which included your saying, “They would not return to Royal Brompton Hospital at any time if there were child protection issues”. What if the child protection issues were removed, as we know in some of these cases they were after a relatively short time because child protection issues can last for years, and the family moved permanently to the Royal Brompton Hospital area and the records were at Stoke?
A That is an important question which I do not think has been quite answered, which is namely that the Royal Brompton is not a district general hospital for Kensington, which is where it is based; in other words, it does not admit local children under any circumstances. That is, there is no accident and emergency department there. There is no local outpatient department for local patients. It admits children with complicated cardiac and respiratory medical problems for surgery and/or medical care. So no such child, even if they moved to central London afterwards, would go there unless, as I mentioned, they had a heart problem, a congenital problem with their heart, born with a major heart defect.
Q In terms of access to special case files and records, you said that the GP is the most important clinical person when you were discussing the letter from Professor Warner to Dr Smart.
A Yes.
Q You also said that the GP has all the records?
A Yes.
Q How can GPs have all the records if not all your correspondence on their patients is copied to them? For example, in C7, page 52, a letter dated 4/6/1990 to Dr Weaver, which is quite an important letter, has not been copied to the GP.
A May I look at that? That is C7, page 52. I agree. You are right. That was not copied to the GP and it is important. The only people who would have it would be Dr Dinwiddie and Dr Weaver, but remember they are both still actively clinically involved with the child, whereas I am not, so they would have it, but I accept totally your point that in this case this letter was not copied to the GP, so he or she would not have it in her records.
Q What concerned me about this particular letter and what you said is the fact that if you go about half-way down: We see that [Child X’s] life is at risk from his parents’ manoeuvres….. I would have thought that it was crucial for a GP to have that letter on the child’s file.
A I completely accept that point. That letter should have gone to the GP as well. I do not know why it did not.
Q Were GPs of patients aware that you kept special case files?
A GPs?
Q Yes. Were they aware that you had special case files on their patients?
A I do not think so, no.
Q On the letter in C2, that is the one that you sent to the unnamed paediatrician in Gwent, you gave an explanation that you may not have sent it because it was not signed by you. Do you remember saying that?
A Yes, it is one of the possibilities. It is a possibility.
Q Was it your normal practice to sign outgoing letters?
A Oh, yes.
Q There are just a couple of examples. In C7 at page 57 there is a letter to Dr Bailey. That does not appear to have your signature on it.
A Well, the copies may not in the special case file, but the ones that went out ---- Supposing I was writing to Dr Bailey as the primary person, that would be hand signed by me. What I thought usually happened was that I also signed the one to Dr Weaver “cc Dr Weaver” at the bottom. I would probably sign that one as well, but the copy that goes in the special case file or the medical records would not have to be signed by me.
Q Surely, if you are sending a letter and you are copying it to somebody and you sign that letter, who you copy it to would be on the top copy because the recipient would need to see who you copied it to? What I am trying to understand is that you were trying to explain whether you had sent this letter.
A That is right.
Q And one of the explanations you gave was that it was not signed, therefore the copy we have in our exhibit was not signed and therefore you were not sure whether you had sent it because it was not signed. I just needed to understand what your practice was in terms of retaining copies that appear not to have your signature.
A Can I just finish that because I would like to just stay with this page as well, if I could for a second, to illustrate that and also to come back to the previous answer to my question. When a letter went out to Dr Bailey in this case, the letter that went to him would be signed in my signature. The copies to Dr Weaver or Dr Dinwiddie may or may not have been signed. Now I sign all the copies but the copy that goes in the records may or may not have been signed. I cannot remember whether I did or not in those days, but the fact that it is not is just a bit more evidence to me, but nothing strong, and maybe I did not send it like that. I do not feel strongly about it. I just do not know what happened.
Q I need further clarification on that. You are sending a letter to a named person and you sign and you are going to copy that letter to somebody else who has an interest in the case.
A Yes.
Q So the letter that goes to the person it is copied to surely would also be signed. Are you suggesting that you send out unsigned letters to people you have copied them to?
A Sometimes. It was not consistent. Nowadays, I sign all the copies, whether it is to the prime person or to the copied person, but sometimes in those days, and I do not think it was consistent, I sent it sometimes signed and sometimes unsigned, and it was not consistent. Now it is more consistent.
Q How does a person receiving a copy of the letter know that you have sent it if it is not signed? Anybody could type a letter with your designation written on the bottom.
A Well, it has got the headed notepaper; it has got my name. But you are absolutely right, without my signature, as you say, anybody perhaps could have done it. So I think that is why practice has improved, and why now I would not send a letter to a copied person without signing it. My secretary would confirm that if you want. Can I just come back to this letter, though? I am sorry to be a pain. Earlier you were saying that I had not sent the GP details or I had not copied the GP in to that important letter that I sent to Dr Weaver. Do you remember a few minutes ago you were saying to me why did I not send it to the GP?
Q No. What I have picked up from the evidence presented is that on the letter it did not say it was copied to the GP.
A Exactly. Now, this letter on page 57 is a letter to the GP by me in which I say, “Dr Weaver has recently written to me about [Child H]”, and then it goes down a bit, “I enclose copies of my previous correspondence with Dr Weaver and with Dr Dinwiddie”. So what happened was that although I did not copy it on the letter you have identified, later I did copy it and I sent copies of it to Dr Bailey. It says so here in this letter on page 57. What I am trying to say is that there are belt and braces in my system. I cannot say it always works perfectly but here is an example of where it did. That is, I did not copy it the first time and I should have done, but then when I realised I had not, I later copied it to him directly.
Q You have been asked about the integrity of medical records. You have said that they were sacrosanct and you did your best to ensure the data was kept safely and security was accessed by those who needed to see it only. That was Day 11. On Day 10, in answer to the question about who had access to special case files, you said, “If anybody wanted access from the hospital side that is either nursing staff, doctors, other consultants or administrators, they were there for them and they knew where they were”. You have not actually mentioned social workers whom you set out this prime policy with.
A No.
Q What I want to ask you, Dr Southall, is: how do you reconcile the differences in the two answers you have about who had access to special case files? On one you are more specific and on the other one you are more general.
A It is a good point. To answer that, the reason is that of course if a nurse on a ward or a social worker said, “I want to look at Child X’s notes”, they would have to have a good reason, otherwise I would not let them. In other words, supposing a junior nurse was interested in doing some research on something and they said, “We have heard about this patient that you have had in with covert video. Can I look at the notes?” I would say, “No, these are too confidential for you to look at them”. On the other hand, if the hospital social worker said, “We cannot find our copy of the case conference. Can we come and see yours?” of course there is no question that such a person would have access. I think both answers are reasonable but need explanation, as I have tried to just do.
Q With the benefit of hindsight, Dr Southall, what would you do differently with regard to setting up a special case file system?
A If I did it now, I would firstly make sure that the whole management system in the hospital was 100 per cent on board in writing. Secondly, I would have that tracer card that is mentioned in the two notes so that you knew where it was. I think the system in 2006, which I have been helping to set up, is the gold standard that I would support if I did it now. What else? I think it is really to do with having written protocols rather than policies. I do not think the word protocol means it has to be written. I looked that up in the dictionary afterwards because I was a bit worried about it. I think protocols can be written or verbal, but I think it is better, in hindsight, to have written protocols where there is going to be no question then of any future problems, if you see what I mean. I think that is the way the Health Service has gone; more and more protocols, more and more written down, and mostly it is good. Sometimes I think there are problems, but mostly that has been good.
Q Dr Southall, could you clarify by way of example from your usual practice how you would treat mothers of paediatric patients in a polite and considerate way who were consulting you after, for example, overnight monitoring where the recordings are normal?
A Right. I can only tell you how I would do it.
Q That is what I want to hear.
A I hope that in the defence later there will be people describing how I have done it but for now I will tell you how I think I have done it personally. If the recording result was normal, I would explain it to the mother and father, hopefully both if they ware there together.
Q Can we just start at the beginning of the consultation? Just tell me how you do it. Two people are outside your office. Could you take us through your normal approach?
A It would normally be on the ward. It would normally be next to the bed. I would be doing the ward round with a senior nurse usually, the nurse looking after the bay or wherever the child is, plus a junior doctor, maybe nowadays a couple of medical students, but usually in those days, perhaps leave it to those days, just the three of us probably. So a junior doctor, a nurse and myself would be moving around the ward and we would get to the patient you are talking about. I would say hello obviously, perhaps talk to the child a bit, if the child was old enough. If it is a baby, I usually stroke the baby. That is just the way I do it. But then I would say to the mother, “We have now finished the recordings that we undertook on your child and the recordings do not show any medical cause for these events and therefore we were looking for serious life-threatening causes and I am really pleased to tell you they are not present. So I think you can be reassured that your baby, your child, is not at risk of some serious problem and because of that”, just trying to continue, “we do not think, say, a monitor is necessary for you to use. You can relax and try and enjoy your child and not worry about it”. It would be something like that, that kind of statement. I would examine the baby. I always examine children or usually examine them – not always. Usually I examine the child just to check them over and listen to their heart and so on. Then I would say, “Have you any questions? Is there anything you want to ask before we move on?” If they said, “What happened last night because the alarm went off and the doctor came to see my child and there was some concern expressed? What happened?” I would say, “We have now had a chance to look at the recording and at the activity chart at the time. We can confirm that although the alarm went off, it did not signify anything harmful or anything to worry about with your child”, something like that. That would be what I would normally do.
Q Is that the end of the answer?
A Yes. Then I would move on to the next patient.
Q In C5, your report, you have written on this child, and I just wanted to take you to the last paragraph on page 118 ---
A I have it.
Q The third sentence in the last paragraph:
“They are probably a normal variant of infantile sleep behaviour. Mr and Mrs ….. must now accept that their child is healthy and not seek further investigations or abnormal care”.
Now, you have used the term “probably”. Could you explain what you mean by the term “probably”?
A Well, in medicine you can never be one hundred per cent sure of anything. Now, everything we had done, and other hospitals had done, suggested to me that what was happening with Child A was that he was going to sleep in a certain way, perhaps more deeply than other children, and there was sometimes pupil changes and movements, which some children have, which had been initially thought might be epileptic or problem with the brain. There has to come a time when you make a decision. What is it likely to be? What is most probably wrong, if there is anything wrong at all? So that is why I used that phrase. I could not be a hundred per cent certain, but it was pretty likely.
Q Thank you. Now, in response to that, if you were using that terminology to a mother, an anxious mother or parent, could they consider that there is still an element of doubt by the use of this terminology, therefore their anxieties about their child’s health may still not be relived?
A Yes, especially if they have already heard from half a dozen other doctors that there is a possible problem, especially if they have been treated with a drug, say, which I think Child A had received some anticonvulsant drug at some point. So, yes, you are absolutely right, and therefore although this is one sentence in a report, sometimes the discussions can take ages. In other words, when I gave you the illustration a minute ago, it could be that such a discussion would go on for fifteen/twenty minutes if there was anxiety, which there frequently is.
Q In response to one of the questions asked by another Panellist yesterday about Mrs M and the interview, you said you would not have just launched into questions, but you have previously stated that Francine Salem’s record of the interview was accurate. Can you clarify that statement that you made yesterday with the evidence you gave earlier?
A Well, her account of the interview is in the file. However, there is another account of what happened in her affidavit, which is not yet before the Panel because it is something that is coming. She was going to give evidence about my behaviour and what happened during that encounter, and that has not been heard yet. Now, she will remember things that I have forgotten and I am sure I remember things that maybe she has forgotten. We can both look at our handwritten notes and try and work out what was actually said. All I can say is I pretty well remember that she knew the mother and I did not, so she would have probably, almost certainly, introduced me, rather than the other way round, but I cannot be sure. If she gave her evidence – when and if – then she would no doubt be able to help, but I cannot be sure one way or the other how that interview started, and how we, as you say, launched into the discussions on the bullying, because I think that was the first item on the list.
Q Finally, again when you were asked a question yesterday by a fellow Panellist you mentioned the Children Act 1989.
A Yes.
Q That was a major piece of legislation, and I just wondered whether you were familiar with the Children Act and whether you were familiar with any reference to record keeping requirements in that legislation.
A The context in which I mentioned the Children Act was in response to Mr Simanowitz’s question, I think, about the interview process which was in the Family Court arena, that is in the best interests of the child, nothing to do with criminal proceedings or anything else. I think it was for that reason. That was encompassed in great detail by the Children Act, the fact that social services and their agents like me would and could do those kind of interviews as part of child protection procedures, accepting that this is not criminal proceedings, and anything that we elicit may or may not be usable. With regard to record keeping, I would have to look at it. The Children Act document, if I remember, is quite big, and I cannot remember now if there is anything in it. It is an interesting question to look at and I think it is worth looking at, but I have not done so and I do not know the answer.
MRS LLOYD: Thank you very much, Dr Southall.
THE CHAIRMAN: We now move on to Mr McFarlane.
MR McFARLANE: Good morning. You described at the beginning, when you set up the special cases files, essentially you did that by yourself. Did you seek advice from other colleagues working in a similar field, either within the hospital that you were working with or perhaps in the wider community of paediatricians?
A I cannot remember. I do not want to mislead you. I did know that others were keeping files like that, but I do not think I did, but I cannot be sure one way or the other.
Q I would like to take everybody to the following reference, please, C1 1(v) page 97. It is the contact sheet from the social work department.
A I have it.
Q If you look down at the very bottom, on the note dated 29 January 1998, and I will just read it out for everybody:
“During the course of events it transpired that a friend/neighbour of the [M family] heard the Police Message on a C.B. radio and warned [Mrs M] what was going to happen. The Police went to the family home but [M2] was not there and Mrs [M] refused to tell them where he was.”
Now, I am not a lawyer, I am not an expert in criminal law, but I understand that the Wireless Telegraphy Act has a number of principles that if you listen to a radio broadcast to which you should not, it is a criminal act to then pass that information on to another person. Similarly, it is a criminal act for that other person to take that information, and then this other person who has taken the information then obstructs the police in their duty being a separate criminal act. The question about all of this is is it usual for other persons to warn parents of emergency protection orders by listening to police radio broadcasts to warn families?
A I have not heard of that one before. I know of cases where, under covert video surveillance, somebody found out it was happening in our hospital and telephoned the mother, through the hospital telephone system, and warned her that she was being videoed, which of course led to an immediate cessation of the system; it could not be carried on. Now, with regard to this event, I completely understand the mother, I do not think one can take that too far. The only other example is the one that I have told you that I know of. I certainly do not know of any use of CB radios to pick it up, but I suppose it does happen.
Q Did it surprise you when you heard about it?
A Well, it is a bit of a funny story, yes, but I took it at face value, and I thought, you know, you can understand the mother being upset and so on, but it is a funny story, yes.
Q Moving on to notes generally, we have seen the various policies regarding child protection which postdate the periods in question, and one of the things that is stressed is the fact that notes should be contemporaneous and also dated. You were head of a unit. What sort of things did you instruct your junior staff regarding the dating of documents and clinical entries, could you advise us, please?
A Well, I was continually talking to them about it, because things do not get filled in. You know, you can ask till you are blue in the face to fill in the number, and to sign it or to put the date. It is the real world, and that is what we are dealing with. Doctors can be very busy sometimes. I mean, supposing there are ten admissions all at once, and the priority is resuscitating somebody sick, or giving drug is needed now, and you have got notes to write, I mean obviously they do their best but sometimes it does not happen anywhere.
Q Now, Dr Samuels appears to have been something of your right hand man, or that is how it appears to me. Did he always date his clinical record entries?
A He is one of the most excellent record keeping persons I know. If you look at his modern notes in the North Staffs, because I look at them a lot because I am going round the wards, he is always writing in the notes. He is a great note writer, and he always dates and signs it.
Q So if we come back to this famous manuscript that was put on the back of a piece of paper that was undated, but we believe may have been written by him on or about 16 March 1990, is it surprising that he did not date it?
A Well, if he expected it to be a medical record in the notes, he would have put it in the notes and dated and signed it, because he is like that. He is very outstanding in that respect compared with most doctors.
Q So to take the converse, the fact that (a) it was not dated, and (b) it was not put in what I think Professor David called the main library file, therefore would that tend to suggest that in fact it was not a clinical record, but perhaps was an aide memoire for a report?
A Well, the person who really can answer that is him, but to me it does suggest that, but I cannot be sure. Hopefully, he will eventually give evidence, but I do not know.
Q I want to move on to the recording equipment that you did for these overnight observations, and, from what I understand, the process of the investigation was held on two physical media: one was the patient activity records written down on pieces of paper, which I shall come to in a moment, and the other was on recording tape. This was described as multi-channel recordings. How many channels did you record?
A It varied. It started off with being four, which was electrocardiogram, breathing movements, oxygen saturation and the pulse wave form, like a blood pressure wave form, that goes with the oxygen saturation. So those four were the sort of early ones. Then, as we got better at it, we might add in three channels of EEG, brainwave activity. Then we did add in transcutaneous carbon dioxide, that is measured through the skin (the carbon dioxide). Then we added in airflow, going up and down the nose, even with a heater, so that when you breathe out it is hot air and when you breathe in it is cold air, or carbon dioxide measurement, expired carbon dioxide level, which gave you a signal. So sometimes there could be ten or twelve signals on to a tape.
Q The physical aspects of this tape, was it quarter inch recording tape or was it wider?
A To start with it was the small quarter inch reel-to-reel, and then we progressed to the VHS video tape, which was sort of like that – (Indicated) – you know, standard, and with twelve signals, I think, up to twelve channels.
Q So these were very specialist tapes which perhaps could be played on domestic equipment but, if they did so, would produce pure gobbledygook?
A Well, it would produce complete gobbledygook if you put them into a video recorder. We worked with a number of computer engineers to develop this equipment in such a way that we could record these signals and also play them back either on to paper, like chart paper, or on to a computer screen. We then finally moved to putting, in addition to the signals, video, so you could have a little corner of the screen where the video of the child, continuous video, was played. So you would have the signals on the screen, and in the corner you could see the child moving and breathing, coughing, whatever.
Q So effectively the information that was being kept on the written patient activity sheets was now being held as a web cam image, as it were?
A It is like that, yes.
Q Within the actual sort of electronic recording?
A Yes.
Q So this equipment that you developed, it sounds to me that it is pretty unique. I mean, there is nothing else in the world to be able to play it back on.
A At that time it was pretty unique. In America now they are doing a lot of that.
Q So at the time, if for instance you gave the tape to a parent, without this one particular machine in the world to play it back on it would have been completely totally useless?
A Yes.
Q It would have been completely totally useless to any other clinician?
A Yes.
Q By the same token, if we are looking at the infant activity records, would the information on these documents have been of any clinical use to any other clinician at any point in the future? Say, for instance, your unit on a plane had crashed, no survivors, so they could not come back to you – I am not wishing that on anybody – and the child comes into a hospital, the SC file has been merged with the main library file, and a clinician comes in to see the child who is sick, and he is presented with these bits of paper, would they be of any clinical use to him?
A No.
Q None at all?
A No.
Q To put the question sort of backwards, if they had consisted of several sheets of blank paper apart from the hospital number, would they have been of any less use to any other clinicians?
A No.
Q A theoretical question about that: you advised that when Child A was found to be a child protection issue, he would not have been seen at the Royal Brompton Hospital again.
A Yes.
Q If, say, the A family had then moved up to Stoke-on-Trent, and then had been seen at the North Staffordshire Hospital (this is a theoretical arrangement), if this had happened, would the presence of his own SC file, now in your office, have been of any clinical benefit to him if this scenario had occurred?
A It could be.
Q If I could now direct people to C2 4(i) page 266, and if you keep your thumb in that page and also go forward in the reference to C2 4(g) at page 606, please. If we look at the first reference there, second line up from the bottom at the right hand side, I have highlighted “that this had produced faecal vomiting”.
A Yes.
Q It appears to have been taken from the clinical notes written by the senior house officer on this second reference at page 606, and you can see it written down, again on the right hand side in the middle of the page between the photocopy of the punch holes, it says “given SMA ….. vomiting + faecal vomit”.
A Yes.
Q Now, I think as I have explained to the mother, the presence of faecal vomiting is quite a significant physical sign with considerable significance, and you appear to have taken this from the SHO’s clerking in notes and reproduced it verbatim in your report. Do you feel that this was an exaggeration by the mother, or just a mistake to describe it as such, because, to my surgical eye, it seems to be quite a surprising thing to read?
A Well, if you are a nurse, especially if you worked at Great Ormond Street, which she had, and you were used to looking after babies, which she would have been, faecal vomiting means something really serious. It means that the large bowel is obstructed, and that faeces are coming all the way back through all the small bowel, you know, into the stomach and them being vomited. It is an indicator of something very serious.
Q So do you think that this mother might have been exaggerating?
A Yes, that is what I thought all along.
Q Right. On that line if I take us now to C6 at page 244. You have found the page?
A I have it, yes.
Q There is a sheet here that says, sort of opposite the lower part of the filing ring, “Prepared by Dr Karen Whiting 17 December 1996”, and then there is an arrow, and it says there “’Lied’ re being a nurse at [Great Ormond Street]”. Whose writing is this here?
A This is my writing. This is something that has actually been investigated already, because there was an allegation that I had accused her of not being a nurse. In fact, what happened was, if you read all that, it was a discussion I had with the GP, who was also very concerned about what was going on here, and he gave me a chronology of the mother’s medical history, and then he said that he was far from sure that she had even been a nurse at Great Ormond Street. So, I wrote down what he said and he gave me her date of birth, and so from there we checked, and she was a nurse, and it was therefore not incorrect that she was a nurse.
Q So you were satisfied that she was a nurse and that she had trained and worked at Great Ormond Street?
A Absolutely, and one of the things about our work is that checking things like this is extremely important. As I was saying to Mr Simanowitz yesterday, what I wanted in the case Child M was for these things to be checked. I did not necessarily disbelieve them. I just felt that by checking them you can work out what the truth of the matter is because that is what affects the child, the truth. That is how I worked anyway.
Q That is most useful. If we can go further back in the report to page 232: you have told us before that you had underlined this report and, for instance, put in a couple of marginal notes like “not true” that appears on this page.
A That is me, yes.
Q Why did you underline in line three the third and fourth word in “spinal fracture”?
A Well that is a pretty serious event, having a spinal fracture, and I just thought it would be worth checking.
Q Did you check it?
A I cannot remember.
Q So you do not know whether it was true or not?
A No, I do not.
Q If we look at the computer records, and if you would look at C10. This is the sheet kindly provided by Mr Tyson, essentially containing printouts of the computer documents. You were telling us something of the chronology about how these records were developed, etc., and I understand that the first computer you had was a thing called an Apple Mac, and it was provided for and paid for by the hospital, is that right?
A No. What happened was, most of my work at the Royal Brompton Hospital was funded by money I raised through various writing grant applications, writing begging letters and so on, so that we could provide within the NHS, as distinct from privately, a system that would be available to everybody who was referred, and so most of the home monitors and recording equipment, for example, was purchased with non-NHS money, it was purchased with donations that we managed to obtain from various charities, and the same applied to this computer.
Q So it was paid for out of charitable donations but kept in your offices which were run by the NHS?
A Everything became the property of the hospital as soon as it was donated, either the hospital or the National Heart and Lung Institute, it certainly was not mine personally, it was owned – I mean, these donations were made to the hospital, just like if it was an oxygen monitor in the baby unit, it would be the same.
Q So the money was given to the hospital and then the hospital purchased the computer.
A For me: I said what it was for: “I would like to buy this.”
Q Was technical support and technical maintenance provided by the hospital computer department?
A Yes.
Q Again, I do not claim to be a lawyer but I understand at that time there was a Data Protection Act in force, that was the Data Protection Act of 1984, and that required that all records held on computer – and we are looking at computer held records only rather than those held on paper, which came under the second Data Protection Act which was after all this went on. There was supposed to be an officer in the hospital called the Data Protection Officer and he was to submit a proforma return to the Data Protection Registrar, and in that he would have to detail what sort of records you would hold on computer, where you got them from and to whom you would disclose them. This was then held on the publicly available document, a document that was made public. Within your department did you have your own Data Protection Officer?
A No.
Q Did the Data Protection Officer come to you to say, “What are you doing with this computer that the hospital have been given money for and we have bought for you?” Did anybody approach you?
A I cannot remember that. I think I would probably remember if that happened. I do not remember it.
Q Of course, the fact that this information had been recorded it would then be in the public domain because if the Data Protection Officer at the hospital had not let the authorities know then nobody would know about it, would they?
A Well nobody from the Data Protection Department, no, or from the government. But I do not know whether they did or not. I just do not know the answer.
Q You said the files on the computer were password protected.
A Yes.
Q Was the actual act of getting into the computer and turning it on and running a program protected by a password or was the actual file itself protected by a password. If you do not understand what I mean ---
A I do understand you.
Q Right, so was it the file that was protected or the computer or both?
A At the moment I cannot remember what it was at the Brompton but at the moment at Stoke you can switch on the computer and it fires up. In order to get into the two databases you have to give a password for each, a different word, but to get into the computer itself you do not.
Q If we go back to how things were before your period of suspension, how did this process occur at this particular stage?
A The same.
Q It was the same process?
A I think so but I cannot be sure, I cannot be sure.
Q You said that when you came back after your suspension you were given a completely new computer – I presume one you had never seen before – and your files had been copied on to it.
A Well I am not sure about this. I am not 100 per cent – I did not recognise the computer itself, so by the word “new” I do not mean brand new, I mean ---
Q Different?
A It looked different to me and when I tried to get into the filing system – well, into the two databases I could not get in, so I contacted the IMT department and asked them to help and eventually they were able to get in by producing two passwords which were different to the passwords we had had originally.
Q I find this quite interesting because to password protect a file you have got to know what the password is ---
A To get in in the first place.
Q To get in in the first place.
A Yes.
Q I mean, had you given out the password to any of the computer team?
A I think they must have had it. They must have had it because otherwise how would they have done it? Certainly after suspension I was not asked to give the passwords, I would have remembered that. In other words when – I do not know whether Dr Samuels was, that is the only other possibility, and, of course, our clinical nurse specialist might have been asked, that is another possibility, I was not, that is all I can say.
Q Would you turn to page 5 of C10? This is regarding Patient H. If you look down in the bottom right-hand corner where it says there had been two admissions to the Brompton for overnight recording and overnight recording and monitoring, and you have got “date of admission: date of discharge” and then a figure “3”, which I suspect is three days, and then you have got “waiting time” which is 204, which I presume is the number of days that the child was on a waiting list, or maybe not?
A No, I do not think so. We never kept patients waiting, or hardly ever. I think that is just – I do not know what it means.
Q Were you instrumental in setting up this particular database?
A I was partly involved, yes.
Q Partly?
A Yes. I am not an expert on databases.
Q But did you have an input as to what you wanted to see?
A Yes, that is absolutely right, yes.
Q If you had an input there it seems to me as if you wanted this data to be collected or to be calculated?
A Yes, I suppose, unless it was the managers who wanted that because that is not something I would be particularly bothered about. Most of our admissions were emergencies, people ringing up the hospital and saying, “We have got a baby who’s having these attacks”. We are not going to wait 200 days to admit them, but on the other hand I suppose there are others that are less serious, airway obstruction perhaps, so maybe this was set up by the managers, that piece.
Q If you look at that the figure to show that the child has been on the database for 204 days or something and then turn to page 1 you have got another thing there with a very large negative figure, which, if that represented a date number, I have calculated it to be somewhere in the order of 23 July 171 BC, so it is suggestive that there might have been some corruption in the databases. So if we are talking about the integrity of the files, with this corruption of the computer database it is difficult to see that the integrity has been maintained.
A I accept that.
Q As you said, this tampering, as it were, may have been done by somebody else about whom you have no ---
A Well I certainly would not have done that. I mean, there is no reason why I would have fiddled about with the waiting list time.
MR McFARLANE: Thank you very much indeed, I have no further questions.
THE CHAIRMAN: I suggest we have a short comfort break before we continue with the Panel’s questions. We will take about 15 minutes.
(Short adjournment)
THE CHAIRMAN: Dr Southall, it is my turn to ask the questions now. First of all I have a question on the computer records. The patient database: were these all derived in a secondary way from other notes always?
A As far as I can remember, yes.
Q Was there ever a situation where, say, a patient or a patient’s parents were interviewed and that data was entered directly into that database?
A No, I do not think so at all. I cannot recall that ever happening.
Q You have described on several occasions that somebody in your team would look through notes and transfer it to create this database.
A Yes.
Q Would they have looked through only the hospital main library file to do it?
A Not necessarily. Remember, there was sometimes, like the upper airway obstruction had a separate form that we filled in to help us with our interpretation, and some of the babies had a file as well – a questionnaire which was from the parents, so that some of the information on that patient data form in the computer may have come from that as well.
Q Would that have been in the SC file then?
A Yes.
Q So although it is secondary information you could not guarantee that it was all in the main hospital file as opposed to the SC file ---
A I could not guarantee it.
Q --- although we have looked at these particular documents here to cross-check.
A I cannot be 100 per cent sure that every single item would. The aim would be that it was but I cannot be 100 per cent certain.
Q In your view, was there any of the data in the patient database of significant clinical value or of great clinical significance?
A Only in so far as it reflected what was in the hospital notes. There was nothing in that that was not in the main medical file of any significance.
Q So it was supplementary to everything else?
A That is right.
Q It repeated information that was elsewhere?
A Yes.
Q Whereas the other database, as I understand it, did not necessary do that?
A Exactly, and that is why I wanted it copied in the main medical file and sent off to the consultant, and so on.
Q So the instruction there was that a summary had to be produced from it because that was where you were putting your recording results?
A Yes, particularly in the non-child protection cases. That would be all there was in the way of a discharge summary in the hospital main medical file, to avoid the junior doctors having to write those discharge summaries on every patient we admitted.
Q Was that because, basically, you tried to computerise how you handled the information you were getting from this specialised ---
A Partly computerising and partly to make it more efficient, so that the doctors on the ward would not have to spend a lot of time writing a discharge summary, we could do it on the computer, print it off, put it in the file and save them a lot of work.
Q Thank you, that has cleared up my questions on that. My next question relates to what has become known as Dinwiddie letter. I do not think I need to take you through it again: you have not admitted head of charge 8(b), that you copied the letter to an unnamed consultant paediatrician at the Royal Gwent Hospital even though no-one there was involved in Child H's care. I wanted to ask you whether that is because you maintain that there is no evidence that the letter went? I am not clear on what basis you say that. You said in your evidence that there is a possibility that the letter never went, and I know it is a long time ago but can you clarify, looking back on it, what your view is now on whether the letter was sent?
A I am going both ways. I have looked through it so many times, and I still cannot know whether it went or not. If I admit it then it means I admit that it went; that is what I would have to admit, so I cannot be sure whether it went or not, so that is why I did not admit it. I am perfectly prepared to accept that it might well have gone, in which case if I knew then I would admit it but I just do not know whether it actually went or not, and the fact that it has not been found there does not help either because there are other reasons why it might not be there so …
Q I think I know the answer to this but I wanted to ask you: was there ever a reply or a communication from Gwent?
A No.
Q Did you ever have any other dealings with the paediatrician at Gwent?
A No. Subsequent dealings were all with Dr Weaver, and I suppose I felt, well, now we do have somebody really involved in the local community, and probably I just felt that was enough, but that is just looking back in retrospect so … I cannot be sure.
Q If the letter had gone, would you have expected a response, putting yourself in the position of the paediatrician on the receiving end? Would you have expected a response?
A Yes. It is a very good point. Just like Dr Weaver wrote back, did she not, and said, “Thank you for sending me your worries” and so on, “I have similar worries” and so on: it then progressed. No such event happened with Gwent, which is in favour of the fact that I never sent it.
Q In your own practice as a paediatrician, if you had received a letter like that out of the blue how would you have reacted to it, or a similar sort of thing?
A I would have been very worried. I think I would have done something. I mean, I would not have held back. I would have wanted to know much more about this child living on my patch. If this was Stoke and I received this letter from London from somebody in a tertiary hospital, and I knew now that there was a child with a tracheostomy being resuscitated up to 40 times a night (which is what we were being told) I would want to know what this was about and I would have explored it so it is actually a very good point, the fact that nothing was done from Gwent. Maybe it did not go. Maybe I decided that Dr Weaver was enough. But again, you know, this is all in my head. There is no data to help finalise it.
Q Thank you for clarifying why that remains unadmitted. My other questions concern Child M and Mrs M. Something that has puzzled me throughout quite a bit of the evidence is exactly how you arrived at the conclusion which you stated in evidence, the question about, not to put too fine a point on it, whether M1 was murdered, which was the underlying basis for all this, words that you used at one point.
A Yes.
Q I am puzzled about the train of reasoning that led to this having looked at the documents and listened to the evidence. I can take you to the series of documents in C1/tab 1. There was the use of words such as “circumstances of [M1]’s death” but that the cause of concern when you were involved was because of the behaviour or observed apparent behaviour of M2. I must say that to my un-medical eye looking at these letters suggested that the concern was more about whether M2 was being pushed in the direction of suicide, if I can summarise it in that brief way. That was where the concerns were arising, the premise was that the verdict had been open but the strong suspicion was that nothing remained of a suspicion of foul play ---
A No, not at the ---
Q --- therefore the people who were raising the concern appeared to be concerned that M2 was sinking into a state of apparent depression or withdrawal or what have you and that the overlying tone of the concern was that he might take his own life.
A Yes.
Q Looking through the correspondence I fail to get past this rather euphemistic expression about concerns about the circumstances of the death, to make the leap that that circumstance was that the harm was of a different nature, that is that it was a direct harm from the mother. To me, it does not fit with what was presenting, which was M2 reportedly threatening suicide and apparently being withdrawn. I can take you through the documents.
A You do not need to.
Q Do you understand the difficulty I have had in seeing the point at which you … In fact it seems to me, if I have got this right, the first place I could see where you overtly raise the suspicion of it not being suicide was in your report (C1/tab/page 181) that you could interpret all the previous words of concern about him being pushed towards suicide. If I have got this wrong, I would like you to explain where was the point at which you switched over to ---
A Right. I understand this completely. This is very, very complicated this case, it is difficult for anybody. The issue of suicide, the risk to the living child of further suicide became more and more the focus of attention, but when I was contacted at the beginning what had been raised was the spectre of the third scenario, that he might have been killed. That was raised by the head of nursing at the hospital at which the mother worked, and it was raised because of concerns with the amount of time she was taking off work, the allegations which she subsequently denied that she had made to Mrs Stewart, the head of theatre, that the child was threatening to kill himself, and the number of accidents. They dug out these records to show frequent attendance at the Accident & Emergency Unit, so it was those things that had triggered that step – this was before my involvement. She then rings me and I am worried and I say, “Contact social services.” Social services are worried, very worried then about what is going on. They had done a Part 8 review and could not find any bullying – they said that in their report. They were also aware of the very high level of domestic violence in that family, and so they were already worried about that child. When it came in that there could be a possibility of the third scenario, speaking to me as an expert in that problem – which I am, or was – was for them I think a major jump. Initially the police were even wanting an EPO before the strategy meeting but social services decided to have a strategy meeting, and then they talked more to me. Because it had been raised and because I was concerned about it – and I was concerned about it and I was passing on my concerns. I think everybody else was getting more concerned about it, and the EPO was granted.
Q Are you able to point me to the first time anybody actually used the words? The way the documents came over to me was that there really could have been a misunderstanding about people using the same words to mean different things about the concerns about M2, because it would have been so difficult to put into words the actual thing that you were thinking; were you just assuming that that is what somebody was thinking or did they use those words to you? Can you comment on that?
A No, what happened was, something that is not in the notes, and that is the details of the first contact that I had with this child, which was not from social services at all but from the hospital where the mother worked, and that is what started it off, not social services contacting me. It was this nurse or not the nurse but the Director of Nursing, Mrs Grey. She started the process and she was the one who got worried about what she was hearing from her staff about the mother, so she is the one that started the ball rolling and ran with it. That is not in the records for some reason. Presumably it is with social services because the next step was that I said to her, “Please ring social services”, and I think that is in there, that she contacted social services. What she was doing was contacting social services and saying, “I am really worried about the possible risk to this living child and I am worried because there are some major problems with the mother that we do not understand, problems relating to her sickness record, her allegations of suicide or risk, her contact because she is a nurse with the operating theatre and so on, and we are very worried about the number of accidents that these children appear to have had”. It was that which raised this Munchausen perspective. It was that that started it off.
Q So you are saying that it was that very first contact that overtly suggested to you that Mrs M could have done very drastic harm to her first child?
A Yes. I did not come at this from outside without any prompting. This came from the lady, Mrs Grey, who is Head of Nursing, who had known all about our work at the North Staffs because she had been married to the Chief Executive during all of the covert video work at North Staffs. So she obviously knew a lot about our work and what we were doing and how difficult the work was, how parents can appear to be so perfect or caring on the one hand and then you do the video surveillance and, as soon as the door is shut and they do not think anybody is watching, they switch from being perfect parents to abusers.
Q So you would say that where an expression such as concerns about the circumstances of the death is used that is using careful language in written documents?
A Yes, careful language. Everybody wants to try to be careful on this one. I remember this came from a judgment too that the more serious the allegations that are being made about a parent’s actions, the more convincing the evidence has got to be. People know that getting the evidence for such serious issues as life-threatening child abuse are not easy. That is why the social services and the guardian and me were feeling that we needed some answers to some questions that had not been adequately already answered. This is completely separate from any form of criminal proceedings. It is not for that reason; it is to protect that child. Therefore, it is totally within the Children Act that you go ahead and do those investigations, even accepting how delicate and difficult they are for everybody, especially for the mother. I completely sympathise with her position in that interview, but it is something that had to be done for the protection of the child.
Q I would like now to go on to the actual interview that you had with Mrs M. In your evidence you have clearly maintained that you did not directly accuse her. I understand you have given that evidence. In order to try and understand more about how this could have arisen, and you have explained how difficult this kind of interview is, could you elaborate on what your technique is in such difficult interviews and what kind of response you were trying to elicit from Mrs M?
A Yes. It is like a medical history. Supposing somebody presents with symptoms, a child presents with a set of symptoms, you go into the history in great detail with the parent to try and understand how this could have arisen. You are not making the diagnosis there and then, but supposing the child has got a serious fever, if you do not ask the question, “Have you been abroad recently?” for instance, you would never know that there could be a risk, for example, of malaria. That is just an example.
In the child protection field, just taking that model into the child protection field, I was talking to her in a way that I was exploring with her the scenarios, and in particular trying to understand in detail what had actually happened on that terrible day when her son was dead. From the moment she called the ambulance, she talked about that, and I made notes about what she said because, from my experience, if there is foul play, whatever you want to call it, if there has been abuse, what happens is that inconsistencies in the history, serious ones, come to light. This is not to try and trap the mother into admitting something that is going to end up with her in criminal proceedings; it is trying to understand whether that next child is at risk or not. That is all it is for. That is what I was doing. The police had already decided that they were not going to pursue this, which is fine. A decision had been made that there would never be enough evidence for criminal proceedings, no matter what. They had made that decision, so there was no way I was going to be damaging anything like that by my interview. It was a scenario-based interview; it was a history taking technique.
As I said earlier, I am really upset actually that you are not going to hear from the lady who was with me for a long time about this because she will tell you how it was; it is very difficult for me to tell you because obviously I am on the defensive. I am trying not to be but inevitably I am in front of a panel that is looking at my registration, so it could be argued that every answer I give is trying to defend myself. I am trying to tell the truth but the way forward will come from her probably more than me. Unfortunately, that is not going to happen now for a long, long time, which worries me a lot. But, in the meantime, I laid out scenarios. I completely understand why, at the end of it, she may have felt as if I was accusing her. I think that expression that was written down somewhere, I think it was either in Dr Solomon’s or Mrs Parry’s notes, I completely understand. What I am saying is that I did not accuse her of anything. That is the difference.
Q So you maintain that, in order to do this very difficult job which you understood you had to do, you had got to broach that territory?
A Yes. I understood that that was the main reason why I was still involved because there was no point in me being involved from the point of view of the other scenarios, because the child psychiatrists are the people who deal with that. Their role in, if you like, helping to prevent that child committing suicide or having depression problems or being exposed to further domestic violence, for instance, those are not issues that I am an expert on. They are the experts on that. My expertise is in diagnosis of life-threatening child abuse, and that is why they wanted me to do it.
Q As I understand your answers then, you have got to broach this scenario, tricky as it was, and the outcome as you see it was that, because you broached it, Mrs M saw it as an accusation. Is that what you say?
A Yes, and I completely understand her view. I am not criticising her for that at all. It is just that she would have felt – felt I think is the word – but I did not accuse her and certainly the expression that was used, the one that was stated as what I accused her of, is just not on. I would not do that.
THE CHAIRMAN: Thank you. I found that a very helpful answer. Dr Southall, that completes my questions. I look round to the panel because there may be some additional questions that people have thought of. I know Mr Simanowitz said yesterday that he might have more questions and he does.
MR SIMANOWITZ: I do have some questions. I would like to start by picking up a question that the Chairman was asking you and that was about the first trigger for why you went down this path. It relates, in a way, to what Mr Tyson was asking about, your mindset. I would like to get more information on that. Perhaps you can elaborate, because at the moment what I understand is that the Director of Nursing, who was aware of the work that you were doing because she was married to the Chief Executive at the time, to use shorthand, was aware of the fuss about CVS, so she knew about it?
A She did.
Q Her worries were that Mrs M had a lot of time off work, that she had made an allegation that the younger child was threatening suicide, the child had a number of accidents, and she had contact with the operating theatre, and that was enough to make her worried and it was enough to make you so worried that you started going down this path of the third scenario. Is that right?
A That is correct.
Q And that is all it was to start with?
A I do not know at the very beginning about the domestic violence.
Q No, that was enough to start you off?
A It was enough to trigger my worry so what I said was, “Go and speak to social services. It is no good telling me this”, and that could have been the end of it, but I think I must have talked to her. I mean, it was not just a one-way conversation. I would have talked to Mrs Grey but, in the end, I would have said something like, “I am worried also now. Please go and speak to social services and tell them that you have spoken to me and that I have suggested you do so”.
Q So you were worried and you did not say to her, “That is a lot of circumstantial and not very important stuff, but, if you are worried, go to social services”. You actually said, “I am now worried, you had better go”?
A I think I did. I would have done, I am sure.
Q I would like to go back to the Dr Samuel’s manuscript that Dr McFarlane was asking you about. There was on thing that concerned me. You had worked with him a long time?
A Yes, I have.
Q You knew his handwriting?
A Oh, yes.
Q Absolutely, and you identified it?
A No question; I know is handwriting.
Q I understand why you would be insistent and he would be very careful about signing and dating medical records. Why would he sign, because it has, his initials at the bottom in an aide memoir?
A Good point; I do not know but you would have to ask him. I have not spoken to him about this because I am not allowed to, as you know. I have no idea. The point you are making is a good point. If it was, as you say, an aide memoir, he would just do it and give it to me because I know his handwriting inside out. He would not need to put his name on it. So I do not know the answer to that. It is a point.
Q Going back to the interview with Mrs M, when I was running through the things with the police, you helpfully pointed out that they would also tape it.
A Yes.
Q Was it your practice to tape any interviews?
A No, never because I think that my interview, interviews of that type, are doctor-patient --- Well, not doctor-patient but they are doctor-parent of patient interviews. It is difficult to describe that but I do not personally believe in taping things. What I do if I am in the outpatient clinic, and I have often done for years, is I dictate the letter that I am writing to the GP in front of the parent and say, “Is that okay?” That is what I normally would do, but I would never tape either licitly or illicitly other than under one circumstance, and there was no doubt about that; that was the covert video surveillance work. That was the one area where taping, both video and audio, was undertaken in our child protection work, the covert videoing, but other interviews were always person-to-person and no record other than handwritten kept.
Q Going back to the Dinwiddie letter, even now when being questioned by the Chair you said, “Perhaps I would have decided it was enough to have involved Professor Weaver”. We have heard that Gwent and the other hospital were quite close to each other. They were in the same area.
A Very close, yes.
Q Why was it necessary, if you had one named doctor who clearly had been involved before, and I think you said you had to alert people in the area and that was your reason for sending it to Gwent as well, but Professor Weaver was in the area; why did you have to send it to two?
A I have been trying to think of the answer to that question in my own mind. Why did I need to go to Newport if Cardiff was as close? In fact, although I now live there, I did not know where Gwent was, let alone Newport. I knew vaguely. So it suggests to me that somebody suggested it. There is more than one possibility but one possibility is that I might have said to the mother, “Where is your nearest local hospital?” and she might have said, “The Royal Gwent, Newport”. Somebody obviously put it into my mind that the Royal Gwent Hospital was Newport because I would not know. I lived at the time in the south of England. But those are just hypothesis. I do not know the answer to that. You are quite right, one local consultant ought to be enough.
Q You will be pleased to know this is my final question and it relates to the computers. It is a simple question. The computer you had belonged to the NHS, although it had been paid for independently.
A The one at the Brompton?
Q The one at the Brompton, yes. But we have heard that it was not networked. Why was it not networked?
A I do not know. It could have been. There could have been advantages to it as well, big ones, but at the time, maybe it was because it was a Mackintosh and this database Filemaker Pro was a Macintosh programme initially. It later became a Windows version, but maybe it was that. I do not know. I just cannot remember.
Q When you bought it, you dictated what kind of computer you wanted?
A Oh, yes.
Q You could have bought a computer with a programme that could have been networked?
A I could have done. I do not know the answer.
DR SARKAR: Arising from the questions I have heard so far, the last one first, computers: in the late Eighties, is it true that Mackintoshes where better than PCs?
A I think so. It is a good point that the databases on Mackintoshes were particularly easy to use. Nowadays that is not the case but Macintoshes used to be very much more user-friendly than Windows systems.
Q And the danger of networking, even if you can get through the platform problem, would be that it would be more susceptible to attacks from outside. The security could be compromised, in theory at least?
A In theory, I think that is probably not particularly likely. A lot of people did have access to the networked hospital computer, a lot of people, with passwords. That has tightened up a lot over the years. In the 1980s I guess it was pretty open actually, but I cannot say that that was behind my thinking at the time. I cannot because it was not. I do not think it was.
Q Coming to the manuscript crib sheet, you have worked with Dr Samuels for a very, very long time, almost the entire duration of your career from Brompton.
A Yes, that is right.
Q How would you describe Dr Samuels – an obsessive person who dates and signs everything?
A Not obsessive in the negative sense, but extremely careful.
Q Meticulous?
A That is it, that is the word.
Q Narcissistic, that he has to put his signature on to everything?
A You would have to ask him. I do not think so.
Q Now, moving on to Gwent.
A To?
Q To the question of copying the letter to Gwent.
A Yes.
Q If you are wanting to cover all the possibilities that mothers with exaggeration, fabrication, or if you detect a problem of that nature, is it a feature that they also go from hospital to hospital so that they are undetected? Is that a feature?
A Yes, it is.
Q I am just trying to recreate, because you do not have a good memory of it, so your thinking was, “I want to cover all the bases”, they live in Wales, this area, and the Royal Gwent could have been, because it was not very far off, a hospital where they could present?
A Yes.
Q Not they “would” present, but given the history and experience, that they “could” present.
A Yes.
Q Could that be how it was?
A Very reasonable.
Q Because on the map we have seen that the triangle of the hospitals, they are pretty close, and I do not know if there are other hospitals in there, but hospitals with major league paediatric facilities would be the Royal Gwent, University Hospital of Wales.
A That is it probably.
MR TYSON: ..(inaudible).. - Miners.
A Well, I am not sure how much the Miners had. I mean, I would have to check, but I thought it was a small hospital without a proper paediatric unit. I do not think it did.
DR SARKAR: We are now going to the M case. The trigger. We heard about Mrs Grey phoning you with four concerns, that my colleague here elicited: that she worked in a theatre; there was a lot of A&E attendance for the children with injuries and accidents; that she took a long time off work; she was talking about her child 2 threatening suicide allegedly.
A Yes.
Q She also talked about bullying. I think I picked that up. She talked to the theatre nurse about bullying.
A Okay, but no bullying had been found, or something, on the review, the Part 8.
Q Yes. These were all made known to you after the Part 8?
A Yes. Well, the Part 8 was part of what I eventually got.
Q Yes, because Mrs Grey was presenting the Part 8?
A I do not know whether she knew about the Part 8. I am not sure about that.
Q She would have also known that her eldest child had died?
A Yes, she knew that.
Q She knew that?
A Yes.
Q Now, added to the four which Mr Simanowitz identified that knowledge she had, would that have influenced her thinking?
A Actually, that would have influenced hers, and I think perhaps I should have said it would have influenced mine even more than the other four.
MR TYSON: With respect, this witness cannot deal with what influenced the Director of Nursing’s thinking. This witness cannot give any evidence as to that. Only the Director of Nursing can help as to her view.
A I accept it. It is just my thinking then it would have influenced.
MR COONAN: The question is perfectly permissible if Dr Southall is being asked as to his recollection of how he was influenced as a result of what Mrs Grey told him. That is my submission. This is admissible.
A I think that is what I was coming to. I suppose I did not come back to Mr Simanowitz adequately on this, because the really important issue was the sudden death of a child already in that family, where an open verdict had been given. That is probably more important that the other four points. I mean, if you did not have that, she would not have rung me anyway. I mean, why would she ring me, as an expert in this, life-threatening abuse, unless somebody had already died?
Q So it is not only the four relatively innocuous looking points in the history?
A No, it is not.
Q It is in the background of a young child dying a violent death, and I use the word “violent” again because I know that in suicide literature, adult or teen, suicide and hanging are described as violent forms of death.
A Well, that is why I used the term, yes.
Q So that would have raised your suspicion, triggered your thinking?
A Especially ten years old, and I am sure she mentioned the age. I mean, if it had been mid-teens, that is different, but ten year old boys, really rare; you know it is really rare from the literature. So here we are with a very rare sudden violent death, and it is the other four things on top of that which were clearly worrying Mrs Grey.
Q It was creating a pattern in your head?
A Yes, it was.
Q A pattern which you are an expert on?
A Yes, I am.
Q Now, you will be pleased to hear this is my last question. In your experience as a paediatrician, I know you are not in pathology, but how long would it take for loss of consciousness to occur in the case of bilateral carotid occlusion?
A I do not know. I do not think anybody knows. You see, my own view is that the pathologist said that to help the mother and the family, because it is important to do everything you can to help, and I just do not know, because I do not know how anybody can know, if they are not there, what happened.
Q We know how long it takes for hypoxia to occur generally, do we not?
A Yes, we do.
Q So I am just asking that question, because I noted in the post mortem report the pathologist had said that loss of consciousness would have been almost instantaneous in a case of bilateral carotid artery occlusion. Now, “instantaneous” to me means like this – (Demonstrated).
A Yes.
Q I do not claim to be a paediatrician or a pathologist, but my understanding is that hypoxic loss of consciousness would take slightly longer than an instant, and during that time there would be not deliberate struggle, but, you know, convulsions and those kind of things will set in.
A I do not know whether I am right in this, but I would like to answer this question, I do have some information, but I am worried about the public nature of such discussions, and I am happy to answer it, I would like to answer it, but not in the open forum.
MR TYSON: Madam, I wonder how profitable it is to continue down this path, because the witness was asked how long would it take to lose consciousness in those circumstances and he said he did not know. We have a psychiatrist questioning a paediatrician about a matter which a pathologist has given sworn testimony, and in my submission it is unprofitable to go down any further.
MR COONAN: Could I just respond to Mr Tyson. I understand the point my learned friend is making, but they are essential matters that a doctor might be in a position to answer. It may be, and I know not, that there might have been an understandable reluctance on the part of Dr Southall to answer precisely because we are in public session. It may be, I do not know, that, if you went into camera for a moment or two, Dr Southall might feel more comfortable in answering Dr Sarkar’s question and might be in a position to do so. It is, in my submission, an appropriate route to go down because Dr Southall has indicated as much. So I throw that out for consideration.
MR TYSON: Madam, you cannot throw it out, in my respectful submission, for consideration when he was asked a direct question, how long does a child in these circumstances take to lose consciousness, and he says, “I do not know”. That is his answer. So whether we are in public session, private session, or whatever, if that is his stance, he may want to speculate or whatever, but his basic answer is “I do not know”, and where we have, as I say, sworn testimony in the form of a pathologist sworn at the inquest as to that, to speculate on the basis of when this witness says “I do not know what the answer is”, and he is not a pathologist, seems to me a complete waste of the Panel’s time, and inadmissible in any event.
THE CHAIRMAN: Dr Sarkar, do you wish to pursue this line of questioning?
DR SARKAR: I do, purely because it has bearing on the line of inquiry Dr Southall in my view was making, and I know this because I am medically trained.
THE CHAIRMAN: It might be helpful if you formulated the question as you want to ask it, to reiterate the question you wish to ask.
DR SARKAR: Do you know for sure, Dr Southall, how long would it take for complete loss of consciousness to occur in bilateral carotid artery occlusion?
THE CHAIRMAN: I think that question was answered.
DR SARKAR: Would you like to hazard a guess based on your medical training?
THE CHAIRMAN: I think that would not be appropriate for the witness to guess.
MRS LLOYD: Madam Chairman, can I request the Panel go into camera, please, for a few minutes to discuss something.
THE CHAIRMAN: I think before we consider going into camera I need to know what the question is that is in dispute. I mean, the question that Dr Sarkar has just posed I think is a repeat of the question that was answered by Dr Southall as “I do not know”, is that not correct?
DR SARKAR: In which case I am content to leave it at that.
THE CHAIRMAN: Thank you.
DR SARKAR: That is all.
MRS LLOYD: Madam Chairman, can I repeat my request for the Panel to go into camera, please, for a few minutes to discuss an issue I have.
THE CHAIRMAN: I cannot reject that. The Panel will go into camera then to discuss the matter.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE PANEL DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
THE CHAIRMAN: Dr Southall, the Panel is ready to complete its questioning now. Dr Sarkar has finished and Mrs Lloyd has some supplementary questions.
Questions from THE PANEL continued
MRS LLOYD: Dr Southall, I just wanted to clarify one or two things that have come out of the questions that have been asked by other panellists about your evidence. Firstly, you used the term yesterday that you were a forensic paediatrician.
A Yes.
Q Is that a qualification, forensic paediatrician?
A No, it is – I specialise in forensic paediatrics – or I did when I was doing child protection work.
Q Is it a term that is accepted by the Royal College and the General Medical Council?
A I doubt it. There is a ---
Q That is fine, you have answered the question, thank you.
A No, is the answer but ---
Q Thank you.
A That is fine.
Q The second clarification which I seek is about Dr Samuels’ manuscript of his discussions with Mrs D. He has used the term “she” in his written manuscript but when you have written your report you have used the term “they”. Similarly, when you were giving a response to one of my colleagues about Mrs D – and he took you to some correspondence at C6/page 244 where you had written she had lied about being a nurse, and then you explained that you had contacted the GP who said he was far from sure, and you got her date of birth and you looked it up and she was a nurse. What struck me was that the correspondence where you had written down “Lied, re being a nurse” had not been altered to show that this in fact was correct information. My question is about your attitude about records being accurate, reliable, sacrosanct: if you are using different terms to how other people are giving you information, how can the Panel accept that the information you give is accurate?
A If we just take the entry on the nurse issue: that was following a discussion with the GP. Later, and there is, I am pretty sure, evidence somewhere in that special case file, of the mother’s nursing qualifications, which therefore deals with that issue in the sense that it has been shown not to have been correct. Whether I should have gone back and crossed it out and said subsequently that we had checked: it is obviously a point, and I did not: that is all I can say.
Q That is fine in relation to that. Could you address the point I have made about your interpretation of Dr Samuels’ notes?
A Yes. Can I just remind myself on that because I want to look at the manuscript again and at a letter I wrote, if you do not mind, I just want to check what you are meaning is.
MR TYSON: They are in adjoining files at C2, the manuscript is at (h) and the letter at (i).
A I have got that, yes. Yes, so, in answer to your question, looking at the manuscript, Dr Samuels’ initials, not his signature as such – just to come back to the point of Dr Sarkar – but then coming back to … There is “Parental view – trache needed” and then a bit further down “Mother does not want him as a ‘cabbage’ ” and then there is “Impression: mother used to …”, so there is both, “mother” and “parental” in that manuscript. It is not just “she” is it. Is that what you meant? I may not have got the question right.
MRS LLOYD: I was just struck that the mother was predominantly recorded.
A But it does say “parental view” and I get the impression that meant both of them, as distinct from mother, so there is both parental and mother in that manuscript, so when I translate it, if you like, I put it as “we” or “they”.
Q Can you remind us if they both attended? Were both parents there?
A You mean the meeting with Dr Samuels or with me and Dr Samuels, because we do not know, do we, what actually happened? I cannot remember. As I said before, my only recollection of this comes from the mother’s affidavit and I cannot remember without looking at that whether she said they were both there or it was just her. We could check, but I cannot remember.
Q I suppose if I am being pedantic, it is that you are not actually using the same emphasis that he has. It may be the parental view on certain things but then you have not used the same emphasis by saying “the mother”, you have used “they” throughout, have you not, in your response?
A I see, yes. In my letter I have used “they” as a parental group whereas in Dr Samuels’ manuscript there is more on the mother.
Q There is no distinction between what the mother said and what they both felt.
A Yes.
Q That is fine. Finally, can you just confirm, when I say “confirm”, you gave some information this morning in evidence about the way you were contacted by Mrs Grey who worked with Mrs M. All I am going to ask you is, is that the only account? That is your recollection of how it happened, your only recollection of how that happened?
A That was the first ever contact in this case.
Q The first ever contact?
A Yes.
Q That is fine. Finally, I just wanted to clarify – I know Mr Tyson has said it on your behalf but I just wanted to clarify from you – are you a qualified pathologist?
A No, I am not but I am an expert in the way children can die and be killed, and I have studied it ---
Q Have you carried out any post-mortems?
A --- but I do not do post-mortem work at all.
Q That is a highly specialised field, pathology, would you agree?
A Yes, absolutely. I am not a pathologist. I never would say I was, but I am an expert on the nature of some of the things that were being addressed by Dr Sarkar.
MRS LLOYD: Thank you Dr Southall.
THE CHAIRMAN: That concludes the questioning from the Panel. I am sure there will be questions from both counsel arising from those. Would anybody require a short comfort break before we continue? (Not required). It seems people are happy to go on for the time being.
Further cross-examination by MR TYSON
Q Just dealing with matters as they came, Dr Southall. You were asked questions by Mr Simanowitz about Child D and you talked about whether the Munchausen’s, if I can use that as shorthand, was at the lower end.
A Yes.
Q You broadly accepted that it was, and you put in two of the matters that raised concerns, first of all that the child was on a restricted diet, and, secondly, you told the Panel that the child was using a wheelchair. Can I take you C6/page 30? Before we look at that in detail, it is right, is it not, that at the time of the admission of the child to your hospital in November 1994 there was no suggestion of a wheelchair?
A No, I think that came later when Dr Whiting wrote her report.
Q Looking at the letter at page 30, written by Professor Warner to you, that is a direct confirmation, is it not, that the child had acute severe allergy and that:
“If he is exposed to any of the food allergens it may well be necessary for him to receive adrenaline …”
A Yes, that is standard treatment.
Q If the child had acute severe allergy he would of necessity have to have a restricted diet, would he not?
A Yes.
Q And the adrenaline there mentioned was issued to the mother pursuant to a doctor’s prescription, was it not?
A Yes, no question.
Q You said in answer to questions about Mrs M, again in answer to questions from Mr Simanowitz, that the police were no longer involved, that it was purely a child protection matter by the time that you were dealing with it.
A The police are always involved with child protection in the sense that the Child Protection Division of the police, but any form of criminal proceeding-type police activity was not, as far as I am aware, ongoing.
Q That is not right is it, doctor, because as a result of your own interventions you were causing the police to make certain inquiries to reinvestigate the matter, which included your request to look at the curtain pole?
A Yes, I knew that later there was a report from the police saying that they had done further tests. They did not say what they had done, and that they had decided again that there was still no cause for them to become involved.
Q And as a direct result of your intervention, the mother herself was interviewed by the police, was she not, at about this time?
A I do not know when she was interviewed again. I heard something along those lines but perhaps you could draw me to it?
Q Is that not one of the things she was saying at the interview with you, that she was reluctant to give answers about the belt because she had received advice from her criminal solicitor when she had attended an interview with the police about that very matter, at your instigation.
A It is very possible, I do not know for certain what happened. The involvement of the police ---
Q That was her evidence.
A Sure, but the involvement of the police in this case, other than in the child protection sense, I do not know about, except for the letter at the end.
Q Yes, but you were aware that they were re-looking at the matter because you had broadly asked them so to do, via social services.
A Yes, via social services I had raised those concerns, yes, which needed ---
Q And you were aware, were you not, that as a result of those concerns the mother herself came to be re-interviewed by the police?
A I do not have a record of that but I accept if that is what happened it happened, yes.
Q Can we look please at C1/tab 1, the last tab, which is (jj), just before tab 2.
A I have it.
Q I think it is right, is it not, that this is a letter from the police dated 3 December 1998 and they indicate in the second paragraph:
“As previously indicated to you, following concerns expressed by a number of agencies, the Police undertook a review into the initial Police investigation into [the first child’s] death.”
A The important point is “by a number of agencies.”
Q Yes, including you.
A Well yes, absolutely,
Q It goes on to state:
“This review has only recently been completed …”
A Yes.
Q So the police review, I suggest to you, was ongoing at the time that you interviewed the mother.
A It could have been, yes.
MR TYSON: For you to say, as you said to Mr Simanowitz that it was a police matter no longer, that it was entirely a child protection matter was incorrect evidence, was it not?
MR COONAN: I object to that. The evidence has been as he understood it and to translate that into a fact is unjustified.
MR TYSON: I repeat my question.
MR COONAN: It was not a question. It was a comment.
MR TYSON: It is. You were wrong, were you not, to say to Mr Simanowitz that it was a police matter no longer when it was quite clear that the police were having their ongoing review at the time when you were questioning the mother?
A My understanding, and I may have got this wrong, is that the Child Protection Division of the police were involved with social services and obviously therefore with me in investigating the third scenario. What was happening on the criminal proceedings side, if you like, if you want to look at it that way, I just did not know about. Of course, there is a blur here between criminal proceedings and child care.
Q There is an advantage to introduce the blur, Doctor, in that there is no reference in the police review to the child protection aspect of the police; there is merely a re-investigation by the police into the circumstances of the eldest child’s death.
A Yes, but they are all connected, are they not, because what really mattered, and that is all that mattered to me, was whether or not this child, who was alive, was still at risk because of some problem with the first death. That is all it was about from my point of view. If I have misled, I am sorry; I did not mean to mislead. I just was talking about the child protection police involvement, which is what I thought was important.
Q You were asked various questions yesterday by Dr Sarkar relating to the unnamed paediatrician letter, which perhaps we can just remind ourselves of yet again. It is at C2, tab 2 (i). It is in the area of consent I want to ask you about. The regime or plan was put, according to the letter, to the parents and included in that package was that it was vital that the child had its overall care managed by a local paediatrician.
A That is my understanding.
Q It is recorded that the parents agreed to such a course.
A Initially they said they would like to accept it.
Q Looking at that paragraph, which includes the fact that the overall care was to be managed by a paediatrician, there is nothing, is there, about the need for regular monitoring of the tracheostomy. We can read it together from the top line. It says:
“In the long run, we feel that if his cyanotic episodes can be controlled by monitoring and additional inspired oxygen, that he might not need the tracheostomy and that this could be closed.”
A Yes.
Q That is not a plea, is it, that there should be regular monitoring of the tracheostomy in case there is a problem and the child gets rushed to a local hospital’s A&E, which is how you described it to the panel?
A No, any child, it does not matter which child it is, with a tracheostomy of this age, especially if they are having multiple resuscitation events, needs to be watched very carefully by the local doctor for safety reasons.
Q Pausing there, you accept that that is not what you are saying is the concern about the tracheostomy in this letter?
A It is not necessary because Dr Dinwiddie and all the doctors would know that. I did not need to spell it out to the doctors because every doctor, no matter what, a paediatrician and a GP, would know that a tracheostomy in a four-year old with resuscitation events is a very serous matter indeed.
Q You are not setting that out in the letter, are you?
A No.
Q You are just making a long-term plan that that is part of your package of monitoring and if “additional inspired oxygen” is there you might not need the tracheostomy at all. You are not dealing at all, are you, with day-to-day care of the tracheostomy?
A No, because it is almost unread; it is not necessary because everybody would know how much of a problem a tracheostomy is in a four-year old needing resuscitation. That is why I did not spell it out.
Q If you obtained the consent of the parents, or the team obtains consent of the parents, to involve a local paediatrician in the overall care, why is it that this letter was sent to these paediatricians, including the unknown paediatrician, when it is nothing to do with overall care and it is to do with child protection?
A It is to do with both. I mentioned that earlier. I have always maintained it was for both reasons.
Q You said it was to deal with the tracheostomy in case the child came to A&E on a tracheostomy and to do with ---
A As I say, I still maintain those were the reasons I sent the letter.
Q We have been through this, and I need not go on about it, and it has nothing to do with A&E matters of tracheostomy at all.
A I see. You mean that therefore because I have not spelt it out in great detail in the letter, okay.
Q I have to suggest to you, Doctor, that you in effect tricked these parents. If you got consent to involve the local paediatrician in overall care, to send a letter like this, which was predominantly a child protection letter, is not something they would ever have consented to.
A You have to go back. If they had not declined, a different letter would have gone. There is no question about that. In other words, supposing they had said, “Yes, we go along with this regime, everything is okay”, and they did, this letter would not have gone anywhere. This would not have been written. A different letter would have been written, probably not containing any issues of child protection because if they were co-operating with the regime that we were suggesting, then that would have been fine. There would have been no need to go into child protection.
Q It is right, is it not, that on a previous occasion you have claimed consent to this particular letter being sent to the unknown paediatrician because that is what the parents agreed?
A The whole regime is in that paragraph, is it not?
Q Pausing there, is it right that on a previous occasion and in writing you have claimed that you had consent from the parents to involve the local paediatrician?
A You are talking about the solicitor’s letter from Hempsons in 2002, are you?
Q Correct.
A The reason I wrote that was because I had taken the whole of that paragraph, that regime, as read and assumed, perhaps wrongly – I accept that – that the mother and parents had agreed to everything in that paragraph. On reflection and looking at it again and again, listening to her talking, I cannot be sure that the whole of that regime had been accepted and I accept that point. I have already agreed it when we went through it before.
Q I do not think you have because the panel do not have the letter before them that was written on your behalf by Hempsons in 2002.
A Right, okay, I do not know. I thought they did.
Q Can I just put the wording of that to you and see what you have to say about it? Pause for a moment. You said, or your solicitor said on your behalf:
“It is denied that Professor Southall gave little or no consideration to the fact that Mr and Mrs [H’s] reluctance to follow his management plan could have been due to their concerns about his pursuing a management plan which did not accord with the reason for [the child] being referred.”
That is putting it in context.
A Okay.
Q “Such a concern if it is so alleged is inconsistent with the agreement that had been reached with the parents about the future management of [the Child] prior to 22nd March.”
So you are asserting there that there was an agreement?
A Yes, which I think there was.
Q In relation to this particular letter, it is admitted that you wrote the letter to the unnamed consultant, so it is accepted that there was no doctor involved in the child’s care at the Royal Gwent Hospital.
“At the time it had however been agreed with [the parents] that a local paediatrician should become involved in [the child’s] case.”
A Yes, that is going back to this former paragraph and the manuscript written by Dr Samuels.
Q Yes. You said:
“In view of the agreement that a local paediatrician should become involved no confidentiality was breached.”
But you accept that what the parents were allegedly agreeing was to the involvement of a paediatrician with the overall care of their child, and they were not agreeing to that kind of letter being sent without their consent to a number of different paediatricians, including an unnamed one?
A I do not know for certain all of that, but what I know is that I completely agree with you that they would never have consented to that letter going if they knew what was in it. I absolutely agree with that. I am not trying ever to hide that fact.
Q But you are, in that letter of Hempsons, saying that you had their agreement to write such a letter?
A It goes to the previous paragraph that is part of the regime.
MR COONAN: Before the witness answers, it is very unsatisfactory if you just quote sections and he does not have the document in front of him. You are no doubt looking at a document which was written, I suspect, four years or more ago. In fairness to the witness, I think you ought to let him see it.
MR TYSON: There is a practical difficulty about that in that all the documents have been packed up but I can show him my copy or, if you have a clean copy, you can show him that.
MR COONAN: I do not have it to hand. It is in the next room. If you have a clean copy immediately available---
MR TYSON: I do not.
MR COONAN: The problem may be solved.
THE WITNESS: There is one issue about that, too.
MR COONAN: Wait, Dr Southall.
MR TYSON: I am perfectly content that he should see it. My learned friend is right.
I am looking at page 4. There is a redacted version available.
MR COONAN: Can you give us the date of the document?
MR TYSON: It is a letter from Hempsons to the General Medical Council dated 11 January 2002. I only have redacted pages. I show it to my learned friend.
(Document produced and shown to witness)
(To the witness) Ignoring the red markings on that document which I am showing you, does it appear on its face to be a document of January 2002 written on your behalf by your solicitors to the General Medical Council?
A It does.
Q Is it a redacted version of that letter merely to deal with your comments on the H case?
A It looks like it, yes. That is an important point actually because, at the time we were responding to this case, there were many more serious charges in the letter we had to answer, very serious charges that the mother was making, which have all been thrown out by Professor David. It is in that context that I was replying to this point. That is an important issue because some of the issues we were replying to were far more serious, really serious issues.
Q Can you look, please, at your response to 8(b) and 8© on internal page 4? Do you accept from me that at that time you were stating, first of all, that you had the agreement of the parents to involve a local paediatrician in the child’s management?
A Yes. Shall I read it?
“Such a concern if it is so alleged is inconsistent with the agreement that had been reached with the parents about the future management of [H] prior to 22nd March.”
Q And that it is stated that they agreed to the management as you have just read out, the overall management, and it also claims, I think in ©, that the letter was sent pursuant to the agreement. You have the document in front of you and I do not.
A Yes.
Q Can you say how it goes?
A It says:
“It is admitted that Professor Southall copied his letter of 22nd March 1990 to an unnamed consultant at the Royal Gwent Hospital. It is accepted that there as no doctor involved in [H’s] care at the Royal Gwent Hospital. At that time it had however been agreed with Mr and Mrs [H] that a local paediatrician should become involved in [H’s] case.”
That is what it says. It then says:
“In view of the agreement that a local paediatrician should become involved no confidentiality was breached.”
That is what it says.
Q In those circumstances, Dr Southall, it is right, is it not, that you were claiming that the justification for sending this letter out was that you had the parents’ agreement to the involvement of a local paediatrician?
A That is how I interpreted it at that time and I accept that since Mrs H has given her evidence and I have gone into it in a lot more detail, I am not pushing in any way on that point. You know I am not.
Q You have changed your account, have you not?
A Well, you can put it that way, yes. I have, yes. I accept that having it all running round in my head, I now realise that it is not simple and what I have seen in the previous paragraph as the regime may have been only part of it.
Q Your initial account was that you had the parents’ agreement to sending this letter out and the account that you are now giving to the panel is that you did not have the parents’ consent to sending this letter out but you felt that it ought to be sent because of child protection concerns?
A Yes. In other words, this was part of the regime. I accept therefore now that this bit of the regime may not have been agreed and therefore when I say that in view of that agreement no confidentiality was breached, then clearly from that perspective you could say it was, but I still believe, regardless of any of this, that confidentiality was not the issue with such a letter.
Q But on the issue of such a letter, first of all, if you wanted to cover all the angles, you did not cover that by sending it to the Caerphilly Miners?
A No.
Q Secondly, you did not identify the individual paediatricians at all?
A I agree with all this.
Q Thirdly, you did not, bearing in mind your concerns about confidentiality, which you have expressed to the Panel, as to why you had the SC files under lock and key, you did not follow any of your own concerns about confidentiality by sending a loose letter like this to a department generally.
A I have been through all of this when you first---
Q Perhaps I can have that document back. (Same handed) You were asked questions by Mrs Lloyd about the Jawad memo, if I can put it that way.
A Yes.
Q Can we look, please, at C3 7(d)(i). A simple question in relation to that: there is no mention there, is there, of the existence of SC files? This document is all about hospital medical records in the main file?
A Yes, that is correct. It is about the overnight monitoring unit.
Q One could not glean from this letter acknowledgement of the existence of an SC file, could one?
A Not from this, no.
Q You were asked by Mr McFarlane about the infant activity logs that went into the SC files. Perhaps I can assist you with it. It is not alleged on behalf of the complainants that there was anything wrong with having an SC file that contained the raw material of your physiological data. You understand from the start that that has been made clear?
A It was originally alleged by Professor David, and then he changed his mind.
Q It is not alleged---
A Not now.
Q ---by Professor David at any time that it was improper to have the raw material of that, at any time.
A I apologise if I am wrong, but I thought that originally they were in the allegations and then taken out.
Q Not recorded at any time that it was wrong for you to have basic raw material, subject, as Professor David put it, that in relation to the infant activity logs there was nothing there over and above what should be in the Kardex.
A Yes, that was also part of his comments.
Q That the infant activity log was fine unless it had material in there that should have been in the nursing Kardex.
A Well, that is part of his discussion.
Q You were asked questions about the discussion that you may or may not have had (probably undoubtedly did have) with the Director of Nursing in relation to the M case.
A Yes.
Q You have, in the course of dealing with Panel questions, produced a great amount of reliance on that conversation. Do you accept that there is no record of that conversation in any of the enormous amount of papers that we have in this case?
A That is correct, there is not.
Q There is a note of it, or reference to it, and if you look at C1, which is the interim initial assessment of Ms Salem.
A Yes.
Q Do we see that, first of all, it indicates on 355 that this team had had no involvement with the M family?
A Oh yes, right.
Q So that would indicate, would it not, that social services were unaware of the domestic violence matters, which only became clear when the police logs were looked at?
A Yes.
Q I think you indicated that social services were aware, but I have to say that that does not accord with the history, for what it is worth; that the police were aware, and social services subsequently became aware. More to the point, it goes on that:
“Mrs [M] is presently employed at the Orthopaedic Hospital [there mentioned] as an auxiliary nurse. During a meeting on the 16th January, 1998, it came to the Director of Nursings attention that Mrs [M] had a very high absence rate from work, the reason she had given to her colleagues was that she was off work so much because her [youngest] son, was being bullied at school and had been expressing feelings of wanting to kill himself.
In light of the suicide of Mrs [M’s] eldest child in 1996 the Director of Nursing contacted the Team Manager at ….. Social Services ….. to raise her concerns for [the youngest child].”
It seems to indicate that the chair’s speculations as to what the original concerns were were right, does it not?
A There is nothing incompatible with that at all, including the important point about the death of the first child.
Q Including the important point that it was described as the suicide of the first child. There is no indication there that the Director of Nursing was challenging the cause of death.
A Well, she was when she spoke to me, and that is why I asked her to contact social services. She would not have contacted social services just about the mother having time off work, and that kind of thing.
Q Well, what is recorded in the note is that “In light of the suicide of [the] eldest child ….. the Director of Nursing contacted the Team Manager”.
A But Mrs Grey had already spoken at length to me, and it was my suggestion that she ring social services because of the concerns about – well, we have gone into it already. That then goes on to say:
“It is these concerns that prompted our department to make enquiries under [Section] 47 of [the] Children Act”.
Q Exactly. The concerns there mentioned---
MR COONAN: Could you let him finish.
A That is the child protection investigation. Now, child protection investigation under section 47 is to do with child abuse, not child in need, it is child abuse, and section 47 is very important because it does go to the heart of child abuse. If it had been a different section, which would have been a child in need, that is if it was just a matter of a risk of him being depressed, as the chairlady said, then it would have been not section 47.
MR TYSON: Well, can you accept from me that section 47 is much wider than you put it? Section 47 is to deal with whether the child is, or is likely to be, suffering from significant harm, and there are a number of definitions of “significant harm”, including emotional harm, sexual harm, or violence.
A Yes.
Q So a wide range of deprivation and the like.
A Sure, absolutely.
Q One aspect of section 47, but not the only aspect of section 47, is the matter of physical harm.
A But in this context, section 47 would be into that because of the---
Q All I want to make is a simple point, Doctor, and perhaps you can possibly even accept this, that it is recorded in the local authority’s notes that the concern of the Director of Social Services was about the suicide of the eldest child in light of the prevailing concerns that the mother was talking about the suicide of the second child?
A That is what is written here, definitely.
MR TYSON: I have got no further questions.
THE CHAIRMAN: Before you rise, Mr Coonan, I think that the Panel may require a short comfort break now. I do not know how long your questioning is likely to be.
MR COONAN: Well, at the moment I have got four questions.
THE CHAIRMAN: Let us go on and see if we can manage.
MR COONAN: I do not promise there might not be one or two supplementary questions.
THE CHAIRMAN: Let us see if we can plough on and manage.
Further re-examined by MR COONAN
Q Dr Southall, the last document you were looking at - and that for the transcript is C1 – this of course, it is self-evident, is not your document.
A No.
Q It is a document written by Francine Salem. With that limitation in mind, I just draw your attention to the last paragraph on page 358. I think you saw this document.
A Yes.
Q It was sent to you, and you have given evidence about this already.
A I have, yes.
Q It was sent to you at the beginning of your involvement with this child and Mrs M.
A Yes.
Q In paragraph 8 Ms Salem writes:
“Ultimately, there appear to be a lot of similarities between [M1’s] life and now [M2’s]. I do not believe that the questions around the circumstances of [M1’s] death have been answered which only heighten my own concerns for [M2’s] safety and welfare.”
Did you note that?
A Yes, I did, absolutely.
Q How did it strike you, that thinking?
A Well, it goes to the heart of the answer to the chairlady’s question, that, you know, this is what was really being thought about at that time, which I why I have been contacted.
Q If you look at the last three lines:
“I believe, also” – my emphasis, note that word – “that we cannot rule out the possibility of [M2] being the victim of parent induced illnesses, which would in turn” – my emphasis – “place large question marks over [M1’s] experiences and” – my emphasis – “ultimately his death”.
How did you read those lines, or the whole of paragraph 8 taken together?
A Well, this is the bottom line. The bottom line is that the scenario three, that eventually I came to discuss with Mrs M, was a serious matter being considered by social services.
Q Just a general question now. It is in relation to M, but it is a matter raised by Mr Simanowitz. Can I just deal with the question of interview. You told the Panel that you do not tape interviews that you have of certainly this type. Can we just break this down a little. This was an interview conducted by you in your capacity as an expert instructed ultimately with leave of the court?
A Yes, that is right.
Q In terms of those interviews, when you have had them, either before this interview or indeed after, did you make a habit of taping or not taping the interviews?
A I have never taped an interview.
Q In relation to seeing a parent in the context of a therapeutic relationship, do you tape those interviews?
A Never.
Q Do you know any doctors in particular contexts who do tape interviews?
A No. The only context was the covert video, and that was not just the doctor, that was multi agency – police, social services and the doctors.
Q Next, can we look, please, at the D file, and just turn to D18, which is the map. Just to remind ourselves, the Royal Gwent Hospital, you have told us, is the red arrow on the right hand side?
A Yes, in Newport.
Q Dr Weaver’s hospital is the red arrow in the Cardiff area, just under the word “Heath”.
A Yes.
Q The village where they lived began with a “B” at the top of the plan.
A Yes.
Q Doing the best you can, how do you think you came to understand the potential relevance in geographical terms of the Royal Gwent Hospital?
A Well, it was not on a geographical basis because I did not know the area at all.
Q No.
A I did not look on a map either. So all I can think of is that I was told that was the nearest hospital to where they lived by somebody, and I do not know who it would be.
Q The next question allied to that is whatever the basis was by which you came to know of the existence of the Royal Gwent and that it was near the place where the family lived, what was the purpose of identifying at that stage two hospitals, given your intention in sending that letter, assuming of course that it was sent, but on that basis that it was sent, what was the purpose of identifying two hospitals?
A Well, I suppose theoretically he could have been taken in an ambulance to either. That is one possibility. Secondly, he had had previous contact with Dr Weaver, so that could be another reason why she is included.
Q Do ambulances habitually go to one hospital, or may they go to more than one, or different ones, do you know?
A I suppose in this geographical area I cannot be sure without talking to the ambulance department, but generally they would have their own catchment. In other words, it would be drawn where they go to so that they would always go to one hospital, unless there was a blockage on the road, or something.
Q And you did not know what the ambulance approach would be?
A No, no.
Q The next matter is in the same file, D17, it arises out of a question asked by Mrs Lloyd, and that is the extract from the affidavit.
A Yes, yes, yes.
Q Could I ask you first of all to look at page 16 at the bottom, just to get your orientation about the date:
“On the 15th March Child H was admitted and he was under the care of Dr Samuels.”
Do you see that?
A I do, yes.
MR COONAN: Then the rest of the account is over the page at page 17 and about a quarter of the way down it reads: “This concerned us a little and we said that we would like to discuss it with Dr Southall ---
MR TYSON: You have got to read it all, it is only fair, from the bottom of page 16.
MR COONAN: Yes:
“It was then suggested by Dr Samuels that [Child H's] tracheostomy be removed and that he be put on experimental drugs for his asthma, a subcutaneous monitor and oxygen therapy.
This concerned us a little and we said that we would like to discuss it with Dr Southall because it seemed to be different advice from the advice that we had already received, i.e. the advice that [Child H] needed a ventilator” and this:
“We finally had a meeting with Dr Southall, but he did not appear to have a great deal of time to spend with us and so we asked if we could consult with Dr Dinwiddie.”
I think it was in response to Mrs Lloyd’s question, you raised the question of what reference there was in the affidavit as to whether or not it was just the mother or whether it was the parents.
A Yes, this appears to …
Q Does that refer to that point?
A It does. That is what I meant, and I could not recall for certain but it is clear from this that it was the parents, both of them.
MR COONAN: Thank you Dr Southall. Madam, those are all the questions I ask.
THE CHAIRMAN: Mr Tyson, is there anything …
MR TYSON: Madam, that is the evidence of this witness, you will be relieved to hear, but there is a separate matter in which I am not instructed on behalf of the complainants but I am instructed on behalf of the General Medical Council itself to raise, and that is a matter with which I am dealing with my learned friend to see if an appropriate formula can be put on the transcript that deals with the General Medical Council’s concerns about matters arising out of the evidence.
I am sorry to be quite so vague about it.
THE CHAIRMAN: Mr Tyson, can I ask you whether Dr Southall needs to remain on oath?
MR TYSON: No, he can be released, and it is very vital that he goes straight into the hands of his legal team to discuss what I am raising.
MR COONAN: Madam, I know exactly to what Mr Tyson refers and I think it is best actually if we have a discussion now and we can sort it out very quickly. I do not think that this needs to detain you at the moment. Could I suggest that we have a short break to deal with these matters and it may be necessary to reconvene for a short period in any event?
THE CHAIRMAN: Yes, let me be clear on what you are asking: I think we do probably need a short break in any case for a variety of reasons. There is nothing to prevent me from now releasing Dr Southall from oath, so I will formally thank Dr Southall for giving his evidence and to release him from his oath, and he can stand down from the witness stand.
(The witness was released)
THE CHAIRMAN: Dealing with other matters, you would now like a short break and then for us to reassemble while you put something to us?
MR COONAN: Yes. As you know I need to canvass in a little more detail the question of the Panel’s thinking on dates. You should know that I did actually, as it were, break the ice last evening on that topic, as I said I would, so that is well in hand. There may be just a few more short discussions with Dr Southall about that, about the way forward in the next stage, and then there is this further matter which I am now attempting to meet my learned friend on and that we can bring the matter back, I hope, without too much delay.
I do not know what time you thought about rising today.
THE CHAIRMAN: I think all that is on my mind is whether proceedings are likely to carry on at such a length that we should take a lunch break or whether you are satisfied that we can take a break now and the discussions that are necessary be completed over the next 50 minutes or so or do we need longer.
MR COONAN: May I make a suggestion, if I have literally five minutes with Dr Southall I will have quite a good idea of how this will take and if I can get a message to the Panel would that be acceptable?
THE CHAIRMAN: Yes, that is helpful. The Panel will retire downstairs and wait to hear from you.
(The Panel adjourned)
THE CHAIRMAN: Mr Coonan, is it you?
MR COONAN: Could I say thank you to all the Panel for the time you have given me. We had a number of things to discuss and it took a little time, as you can appreciate, and for Dr Southall to get back to something approaching reality, having given his evidence.
Two things: first of all the question of dates. The canvassing of dates by the Panel, as Dr Southall is aware, and I am instructed that the most appropriate way of proceeding in the circumstances is to invite the Panel to adopt what appeared to be the favoured approach of the Panel, which is to adjourn to November. If my understanding is correct, the Panel have set aside in effect four working weeks and for our part, having made the judgement now in the light of the evidence we are contemplating calling, that will be sufficient time to complete the case.
THE CHAIRMAN: On the calculation of the time, are you able to break that down any more, from both sides, because I think the Panel might find this helpful to get some estimate. I have to say our experience so far has been that things have taken longer than originally estimated. We are very anxious this time not to under-estimate the time that might be needed, the time when we can book a room and this far ahead we can book people’s time and if we need to book an extra week provisionally the members of the Panel have expressed to me that they would prefer to do that run any risk whatsoever.
MR COONAN: I understand that. As matters stand at the moment, the best I can do is to say that any evidence that I anticipate, contemplate calling will take no longer than five working days, that is my present estimate, I hope with my feet firmly on the ground.
THE CHAIRMAN: That part of it you are fairly clear on?
MR COONAN: Yes, but what happens thereafter of course I know not. Obviously submissions will take I would not have thought a whole day each but they will be to some extent substantial on each side, so we have to factor that in and then, of course, there is a matter that I am not in a position to make any comment on at all and that is the amount of time for Panel deliberation. I retreat from any attempt to comment on that. I think I have probably gone as far as I can in giving you a realistic estimate.
MR SIMANOWITZ: Do those five days include cross-examination?
MR COONAN: That is a matter for Mr Tyson.
MR SIMANOWITZ: But five days is your estimate?
MR COONAN: That is my estimate. Of course I am not sharing with Mr Tyson at this moment the precise extent or content of that evidence. As you appreciate, since I have not been in a position to discuss it in any full detail in the time allocated with Dr Southall I am not in a position myself even to address those matters. It would be misleading of me to attempt that. Doing the best one can and allowing for the issues which have been canvassed between us, and by the Panel, and looking at the matters in the round that is, as I say, by best estimate at the moment.
What I can do, if this is of any help to the Panel and help to those who plan room allocation and accommodation, is say that if during the next month or so, allowing for my current commitments, if it should transpire that the time that is going to be spent on defence evidence is either going to be significantly reduced or to be enlarged then those who instruct me I am sure will inform the General Medical Council and those who instruct my learned friend so that matters can be dealt with accordingly well in advance of the hearing.
THE CHAIRMAN: Thank you. You have been as helpful as you possibly can under the circumstances.
Mr Tyson, do you want to add anything on the dates and the forecast of timing?
MR TYSON: I have two general observations, Madam. One is, of course, that I do not know how many witnesses my learned friend is going to call and what, except for two possibly, they are going to say. Unlike the openness of the prosecution where we serve witness statements of what our witnesses are going to say, we do not have the same luxury in return, but we have recently received an expert’s report, somewhat to our surprise, but there it is. So I cannot help you on how long I am going to be because I do not know (a) who is going to be called and (b) what they are going to say. I cannot assist you at all on that.
The second matter is that there does seem to me personally to be an advantage in dealing with the defence evidence at a different time from the submissions or whatever. I say this principally as a matter of, as it were, fairness to the complainants in that you will have heard, a rather long time ago, for instance the evidence of Mrs M from Australia and Mrs D and whatever. If you hear Mrs M from Australia and then shortly before you make your deliberations you hear, for instance, the social worker Ms Salem and you will have heard Mrs M a year before, it is not entirely fair, in my submission, to Mrs M’s case in terms of equality of arms, which is the way that we have to deal with these matters.
It is for those reasons that I would urge the panel to actually consider using the provisional dates, or some of the dates, set out from Monday 30 April to 10 May for the purposes of receiving evidence only and then at a later stage, and if it has to be November, it has to be November, to hear submissions. To put it in perhaps a jargon way, you would have forgotten an equal amount about an equal amount of the evidence by November, as it were, rather than having, for instance, Ms Salem’s evidence ringing in your ears or any expert evidence ringing in your ears about SC files when you have had Professor David a year before. That is particularly important if my learned friend calls the expert evidence that I anticipate he might, bearing in mind that at the last moment, in my submission, suddenly the clinical audit reason for holding the SC files has emerged in evidence but never before. Professor David was not even asked any questions about it because the reason for holding SC files only emerged when Dr Southall gave evidence. So we have not had any chance to comment on that. Then suddenly you get an expert saying matters.
I personally do not think it is fair to the complainant that you have had very recent evidence and immediately before submissions when the complainant’s evidence is over a year before. Though it is incredibly inconvenient for everybody, including the panel I understand in having to get this case up twice, to be fair, which is your principal role, I just think it is unfair to have the defence evidence so close to submissions when the defence evidence is a year old. I really do not think it is fair.
THE CHAIRMAN: Thank you. You have made a point that has not previously been made as to why the panel should consider doing it that way in face of the dates available. I can assure you that the panel is not motivated by its own convenience but by what it believes is in the best interests of being able to deal most justly with the case, and I think you have put another factor to us that perhaps we had not considered in thinking about that. We do hear the two views.
Mr Coonan, do you have any response to what Mr Tyson has said?
MR COONAN: On the first part of the response on what Mr Tyson had to say, it is not for me now to engage in fencing. I reject what he has said about clinical audit. I shall have more to say about what he said later. Now is not the time.
THE CHAIRMAN: I imagine it is the dates.
MR COONAN: Yes, it is the dates. The difficulty is that one is faced with a delay in any event. You are a professional panel. This is a common feature of the system that is run at the GMC. Many, many cases have delay built into them for all sorts of reasons. You have the ability to refresh your memory of the evidence by looking at the transcripts and you have to do that in any event when you have heard submissions on the material, whenever that is given. There are practical aspects to having more than one tranche because it means that the case would have to be reviewed by everybody again for a second and third time. That is a problem which has to be factored into this.
Secondly, if there had been or was likely to have been a significant delay, what I might have been minded to do was to invite you not to hear Dr Southall’s evidence at that stage but for there to be a significant delay, as there may be at the earliest possibly in May, and you hear his evidence and the defence evidence all at once, but I have not objected to that on the basis that I am confident that this panel will be able to view things dispassionately and justly by refreshing your memory by looking at the transcripts.
Of course, Dr Southall is dismayed on one level that there will be a delay because obviously he needs to see, in due course, an end to it, but he recognises the realities and he wishes the matter equally to be dealt with justly. He is confident that this panel will deal with matters justly.
The possible risk, and that is my very careful area when I was giving you my best estimate of the defence evidence, and it is an estimate, the worst possible result would be if I start calling evidence in May, and, for one reason or another, it does not finish, then the defence case will then be straddling two periods, and that is wholly unsatisfactory, whereas at the moment the proposal is that you can deal with the defence case, or the second part of the defence case, by hearing the witnesses I call all of a piece, and it would fit in with the defence case, and then we go into speeches. So Mr Tyson could make the submissions which he has made thus far, and repeat them and develop them, in the light of the evidence which is given.
So I reject the idea that this Panel in some way would be performing less optimally if the defence evidence was not heard in May. It is less than satisfactory all round, but the best possible way of looking at it is to adopt the initial view of the Panel, and that is to go for November. That is the way I put it.
THE CHAIRMAN: Do you have anything to say?
MR TYSON: Yes, just one. A transcript, coupled with a memory of a year ago, is no substitute for having a recent memory of a live witness right in front of you. I am acutely concerned about my client Mrs M, and the difficulties that she may face, if, she having given video link evidence a year ago, suddenly your most recent memory is a live social worker shortly before submissions are made. I just do not think it is fair to Mrs M.
Secondly, in my submission, my proposal does not add anything to the delay because of course I accept that the substantive matter of submissions and the like would take place in November in any event. It appears to be, if my learned friend’s defence case is going to take five days, then to have from Monday 30 April to Thursday 10 May seems to cover his five days well and truly.
THE CHAIRMAN: I think that since we have got differing views here, the Panel will need to discuss this again privately and try and come to some decision on the basis of the submissions that you have made. Before we do that, I know there was another matter. Was that something that would also require us to go and deliberate in private?
MR COONAN: Madam, it will not. It is a wholly freestanding matter and just involves me saying something which would take about two or three minutes, but it will not require a decision from the Panel. Mr Tyson knows what it is. May I suggest that you deal with the current issue first, and then, having completed that, I can then just deal with what I think will be the last matter of this session.
THE CHAIRMAN: I think I must consult the Panel privately about their views on the submissions you have made about the dates.
MR COONAN: Yes, indeed.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE PANEL DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
THE CHAIRMAN: Mr Coonan, Mr Tyson, the Panel have given very, very careful consideration to all the points that you made to us earlier. We are very conscious of the need to be fair to both sides and that what we do must be upholding the principles of justice. We think this is a very, very difficult case, very difficult to determine what is the best, but we have balanced all the points against each other and we have finally concluded that the fairest thing to both sides is to set aside five weeks in November/December to hear the continuation of the case. We think that if at this time we book the room and the availability of ourselves for five weeks, then we will be ensuring that we will have sufficient and generous time to deal with the case. We give you the assurance that the Panel will be acutely aware of what the issues are, and will do everything in its power to ensure that it is fair and just to both sides in these very difficult circumstances.
Just one matter before we leave that. The actual dates, of course, it is beginning on 5 November and then running through to 7 December. However, the Panel has already determined that it would wish the first two days to be set aside for reading. So counsel and the doctor would not be required before 7 November.
MR COONAN: Madam, with your leave can I move to what I think may be the last piece of business for you in this session. I do this in a formal way so that it is on the transcript. Mr Tyson knows what I am about to say, but it ought to be said formally.
I have received representations form Mr Tyson very recently, acting on behalf of the General Medical Council as opposed to the complainants, and, as a result of receiving those representations, I am making this statement on instructions from Dr Southall.
All the special cases files relating to patients at the Royal Brompton Hospital, wherever presently held, and the related tapes, and any associated printouts, together with a copy on disk of any Brompton clinical information held on the Academic Department computer at Stoke, to include the entire special cases and recordings databases, will all be transported to the medical records department at the Royal Brompton Hospital on the first available date convenient to both the Royal Brompton Hospital and to Dr Southall. This process will be managed through the offices of Dr Southall’s solicitors.
Secondly, Dr Southall will formally invite, through his solicitors, the medical records department at Stoke to assume day to day responsibility for the special cases files, together with any associated tapes and printouts, presently held in the Academic Department at North Staffordshire Hospital. Dr Southall will formally invite the medical records department to ensure that the special cases files, as described above, and the main hospital records, are managed in accordance with the hospital’s current medical record keeping policies and protocols. This invitation will involve a specific invitation to the hospital to physically marry up the two sets of files.
Thirdly, Dr Southall’s solicitors will inform the General Medical Council at the completion of the above steps.
Fourth, and finally, these matters that I have referred to should in no sense be taken as amounting to any admission of inappropriate conduct in the past. These proposals are put forward simply to do with any perceived concerns of any quarter in the light of the evidence taken as a whole.
That completes that statement. As I say, Mr Tyson was given advance notice of that.
MR TYSON: Madam, I had received advance notice of that. I have discussed it with both my instructing solicitors, and they in turn have discussed it with the General Medical Council, and this statement is acceptable to the General Medical Council.
THE CHAIRMAN: Thank you. That is, just to be clear, just a matter of information for the Panel.
MR COONAN: On the transcript. Madam, that concludes all the matters from our side that we would invite you to receive by the end of this session. I am reminded there is one, and that concerns the custody of the original records. There are three files at the end of the room, the three original special cases files, and we invite Field Fisher Waterhouse, acting on behalf of the complainants, to take custody of these until the next hearing. I think that is acceptable to Mr Tyson and those who instruct him – principally those who instruct him because they will be having custody of it – but formally I think you, the Panel, should make the decision as to whether or not that should happen. We would wish Field Fisher Waterhouse to have custody rather than us. It is a matter for you because technically they are in your custody as I speak.
THE CHAIRMAN: Mr Tyson.
MR TYSON: I am grateful for that. Field Fisher Waterhouse would wish to have custody of those original files and us reconvening on 5 November 2007.
THE CHAIRMAN: I have to say I am not clear why it is a matter for the Panel, but perhaps the Legal Assessor---
MR TYSON: I think the documents have been formally produced so they are formally within the custody and control of the Panel, and I think we need formal permission to take them out of the Secretariat here and for Field Fisher Waterhouse to keep them instead of the Secretariat.
THE CHAIRMAN: I see that the Panel concurs that that should be done.
MR COONAN: Thank you.
THE CHAIRMAN: So that closes proceedings for the time being. We are adjourning now until 7 November 2007.
(The Panel adjourned until 5 November, 2007,
the first day in public session being 7 November 2007)