Cot death, infanticide & child protection

GENERAL MEDICAL COUNCIL

FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)

Wednesday 15 November 2006

44 Hallam Street, London, W1W 6JJ

Chairman: Dr Jacqueline Mitton

Panel Members:

Mrs Leora Lloyd
Mr Alexander McFarlane
Dr Sameer Sarkar
Mr Arnold Simanowitz

Legal Assessor: Mr Robin Hay

CASE OF:

SOUTHALL, David Patrick

(DAY THREE)

MR RICHARD TYSON of counsel, instructed by Messrs Field Fisher Waterhouse, solicitors, appeared on behalf of the Complainants.

MR KIERAN COONAN QC and MR JOHN JOLLIFE of counsel, instructed by
Messrs Hempsons, solicitors, appeared on behalf of Dr Southall, who was present.

(Transcript of the shorthand notes of T. A. Reed & Co.
Tel No: 01992 465900)

I N D E X

Page No

MR TYSON opening (continued) 1

MR TYSON: There are two matters of housekeeping before I begin, Madam.

First, the gentleman the back is my expert, Professor David. I have spoken to my learned friend and he has no objection to his being here at the moment. I need to ask the panel’s agreement for that.

THE CHAIRMAN: No member of the panel objects.

MR TYSON: Secondly, I am going to burden you now with three more lever arch files, which are the special cases files relating to the children, the subject of the heads of charge, rather than doing it piecemeal in the course of my opening. The first one relates to Patients A and B. That will be C5. (File C5 marked and circulated)

The next one relates to Patient D. That will be C6. (File C6 marked and circulated)

The last one relates to Patient H, and that will be C7. (File C7 marked and circulated)

THE CHAIRMAN: If the panel has difficulties seeing the witnesses, when you have concluded your opening, we will deal with that.

MR TYSON: Madam, I now come to the second main section of the heads of charge. These relate to the inappropriate retention by Dr Southall or at his instigation of certain original – and that is the point that is key – medical records of patients that should have been in the hospital’s medical records but were not. This happened both at the Royal Brompton Hospital where Dr Southall, as he then was, worked until 1992 and then again at the North Staffordshire Hospital where he worked after his appointment as a professor of paediatrics at the local university first from 1992.

It is the complainant’s case that for many of Dr Southall’s patients, both at the Royal Brompton and at the North Staffordshire, Professor Southall created a parallel series of medical records. These were for patients he saw in his capacity as a clinician and in his capacity as a clinician and expert witness because there were a number of cases here where he saw the child concerned initially as a patient, and then went on to produce reports for subsequent child protection issues when those reached the court system.

Madam, these files were called special cases files or S/C files. Recent investigation by the claimants’ solicitors have revealed that it appears that Dr Southall and his team have several thousand of these parallel files stretching back to the 1980s. Not only were these files parallel to the hospital filing system but also, we submit, inaccessible to others involved in the medical care of the child, especially in the future. As we will seek to show, the existence of these files was not known about by other clinicians, to the administration at the Royal Brompton Hospital and also not known about by patients.

You will be relieved to hear that we will not be dealing with the thousands of S/C files in existence that have been created but only the four that were created in respect of the complainants’ case here, namely Child A, Child B, Child D and Child H.

The heads of charge deal with two separate aspect of these S/C files. The first aspect is dealt with in heads of charge 10 to 12. These deal with the situation whereby original medical records, which should have been in the children’s hospital medical records, were found in the S/C files but not elsewhere. The only way that you could find an original medical record was to find it in the S/C file, the existence of which, the file itself, was not known outside the department. Non-exclusive examples of original medical records being found in the relevant S/C file are to be found in Appendix 1 of the heads of charge, which I will come to in more detail in a minute.

The second category of heads of charge under this head, deals with heads of charge 13 and 14, which, as you see, state that:

“You treated both Child A and Child H at the Royal Brompton Hospital, and there created an ‘S/C’ file for each child

(b) Each such ‘S/C’ file contained original Royal Brompton Hospital medical records.

© You took, or caused to be taken, the ‘S/C’ files relating to both Child A and Child H away from the Royal Brompton Hospital and to the North Staffordshire Hospital.”

We assert that that was not in the best interests of the child concerned, inappropriate and an abuse of professional position.

The gravamen of these heads is that access to these parallel records by subsequent Royal Brompton clinicians was made, we submit, even more difficult, if not impossible, as the S/C files relating to these children and containing original medical records not available elsewhere were physically taken by or on behalf of Professor Southall away from the Royal Brompton Hospital to North Staffs on his appointment there. The basis upon which they were so taken and why they were so taken is a matter which we will have to ask about and deal with in the course of the evidence in this case.

I will come back to the detail of Appendix 1 in due course, but at the moment now I need to give you a short lecture on medical records in general and the creation of special cases files in particular. Here the panel will have the assistance of Professor David, the gentleman sitting at the back, who is the distinguished Professor of Child Health and Paediatrics at the University of Manchester. He has relied on his long experience of paediatric records and his labours for the benefit of his report in this case to be able to give some guidance on the issue.
He does not purport to be an expert on the subject of medical records per se but he will be speaking to you on the basis of his experience and the diligence that has done in researching the matter of medical records for your benefit, which has enabled him, we submit, to make important points on the subject of medical records in general and of paediatric medical records in particular.

Madam, he has produced two relevant reports. The first deals with medical reports in general and that you will find in your C3 at section 7 under the first tab at (a). Before I go into this in any detail I would like you first to note, first, that on page 1 you will see the date of this report, which is July 2005, at the bottom, and second, three pages in you will see a heading saying:

“Matters relating to medical records”,

which appears to start at page 221 and paragraph 342. You will see that is about two pages in. I need thus to explain the provenance, insofar as I can, of this report.

In July 2005 Professor David produced a number of reports for the complainant mothers that had virtually identical sections dealing with the issues common to all the cases, and then a section at the end dealing with the particular issues raised by a particular complainant. Those reports that he prepared in July 2005 concerned matters with which this Panel is not at all concerned, but it is here concerned with medical records and the section dealing with medical records and common to all of his reports has been abstracted from one of the reports (here it happened to be the report on Child A) and it is used for the Panel’s guidance and assistance as a generic guide to medical records. Hence, the odd page and paragraph numbering that you will see.

Madam, at this point can I say I am grateful to my learned friend for his permitting me to introduce this report at this stage because it will help cut matters down in the course of these hearings.

Can I take you, please, to the report, and can I take you to paragraph 344, because the Professor starts by asking and then answering ten questions relating to the kind of medical records raised in the cases of these complainants. He sets out the ten questions at paragraph 344 at page 222, and you can see that the questions he has asked are:

“344.1 What is the important of a patient’s hospital medical records?

344.2 When a paediatrician, uninvolved in the clinical care of the child, is acting as an expert, how and where should documents relating to the case be filed and stored?

344.3 When a paediatrician, involved in the clinical care of the child, is acting as a expert, how and where should documents relating to the case be filed and stored?

344.4 Is it acceptable for certain original medical records to be kept apart from the main hospital clinical records file for a patient?

344.5 It appears that in some case, Professor Southall set up and kept special files of his own, files which contained extensive documentation relating to a particular case. These files have been referred to as ‘SC’ files. I understand that ‘SC’ is an abbreviation for ‘Special Case’. The ultimate question is whether or not it is appropriate for a paediatrician to create and store a separate file of documents relating to a case.

344.6 Is it appropriate for a paediatrician to receive an original document concerning a child but cause it to be retained anywhere other than the child’s medical records.

344.7 Is it appropriate for a paediatrician to make (or cause to be made) or obtain photocopies of a child’s medical records?

344.8 Is it appropriate for a paediatrician to make (or cause to be made) or obtain photocopies of a child’s medical records when the document is specifically marked with the instruction that it should not be copied?

344.9 Is it appropriate for a paediatrician to remove (or cause to be removed) an original document from a child’s medical records and replace (or cause to be replaced) that document with a photocopy of the original? Further, is it appropriate for a paediatrician to place (or cause to be placed) elsewhere an original document which should be in the child’s medical records and provide (or cause to be provided) a photocopy in such medical records.”

Then we come to question 10, which is the key question upon which appendix 1 is based:

344.10 Is it appropriate for a paediatrician to remove (or cause to be removed) an original document from a child’s medical records and placed it (or cause it to be placed) instead in an alternative file that is kept and stored separately from the child’s medical records? Further, is it appropriate to place (or cause to be placed) in such alternative file an original document that should be in the child’s medical records?”

Question 9 deals with the issue of having an original document but replacing it with a photocopy. Question 10 is having an original document and merely placing it in, for instance, the SC file and nowhere else. It is Question 10 which is the gravamen of the heads of charge, or in relation to the answers to Question 10 are the appendix 1 charges in this case.

Madam, the Professor goes on to answer his own questions and he answers question 1 about the important of medical records at page 227 at paragraph 355. He says:

“What is the importance of hospital medical records?

In the context of this report, a record is anything which contains information (in any media) …”,

and pausing there, at the moment that includes computer data,

“which has been created or gathered in connection with a child’s illness or referral to hospital.”

You are going to have the opportunity to look at this report in more detail later. I just merely point out that paragraph 356 sets out all the kind of documents that are included in the words “medical records.” At paragraph 357 he says that part of the essential purposes of hospital medical records is that:

“357.1 they contain a factual record of information pertaining to the medical problems and medical treatment of a patient.

357.2 they serve as a means of communication between all health professionals involved in the care of a patient while that patient is in hospital.”

Here is the important sentence:

“They may contain information of vital importance to those caring for the patient in the future eg information about an operation, an investigation, or a drug allergy.”

Then over the page at 357.3:

“they provide information about past illness, investigations and treatment, information that may have an important bearing on subsequent illness episodes or follow-up.”

Again, we would say that point 3 is an important point. Then it is pointed out that they are legal documents which are an essential resource should the patient and/or her medical care be the subject to any subsequent complaint or litigation. At point 5 he says they are required for questions of audit and at point 6 they may be needed for medical reports.

Then he sets out a Department of Health Circular which summarises the importance of medical records and I need to quote to you a bit from this Circular.

“Medical records are a valuable resource because of the information they contain. That information is only usable if it is correctly recorded in the first place, is regularly up-dated, and is easily accessible when it is needed.”

Those are the magic words in that paragraph.

“Information is essential to the delivery of high quality evidence-based health care on a day-to-day basis and an effective records management service ensures that such information is properly managed and is available.”

Then it sets out why they are important in various bullet points and you may think the first bullet point is important:

“to support patient care and continuity of care”

Over the page the second bullet point is:

“to support evidence based clinical practice.”

You need the records in order to provide the evidence. The fourth bullet point:

“to meet legal requirements, including requests from patients under access to health records legislation.”

The question of access by patients is important, in our submission, for two reasons, madam. Firstly, parents may well want the medical records to which they are entitled as parents in order to obtain a second opinion from another clinician. Secondly, parents may seek access to their children’s medical records because they are unhappy with the quality of care that they have received and need advice from their lawyers as to whether there is a potential case against the institution. Both those patients’ rights are important.

I need not take you to the next two subparagraphs. Then there is a quote at paragraph 361 from one of the appendices to the Health Circular. Paragraph 4.1 quoted there I have read out to you, because that has already been quoted in paragraph 358 earlier. At the fourth line down you will see the word “accessible.” Paragraph 4.2 sets out that:

“Good record keeping ensures that …”,

and can I take you to the third bullet point under that:

“those coming after you can see what has been done, or not done, and why.”

The next bullet point:

“any decisions made can be justified or reconsidered at a later date.”

Then over the page, under paragraph 4.4 of this appendix to the Circular, it is said:

“It is therefore vital that you always …”,

and the first bullet point:

“record any important and relevant information, making sure that it is complete.”

Then the third bullet point is again, we submit, important in this case:

“put it where it can be found when needed.”

Then over the page, at the end of Professor David answering his first question, he makes what we say is an important point at paragraph 363, in summary, where he says:

“A patient’s hospital medical records are regarded as sacrosanct and inviolable ie must always be kept intact as a very high priority.”

Then question 2 is how should an expert store the documents? That is an intriguing section, but it is not one that we have to deal with in terms of the heads of charge in this case.

So we go over to page 233, which is “How should an expert/treating paediatrician store documents?” You may wish to add this as a note, that this relates to A, B, D and H. He sets out the question at 368:

“When a paediatrician, involved in the clinical care of the child, is acting as an expert, how and where should documents relating to the case be filed and stored?”

At 370 the Professor says:

“It seems to me that the answer to the question depends in part upon whether the document is regarded as part of the patient’s medical records or is regarded as part of the material that is generated between the expert and instructing solicitor.”

If I can take you over to paragraph 374, about medical and clinical records. It says:

“Any clinical medical or nursing records (whether handwritten or typed), investigation results/reports, charts [et cetera] or clinical correspondence” – and I would ask you to note that reference to clinical correspondence – “([i.e] letters to and from [the] GP or other consultants, discharge summaries) would universally be regarded as being part of the patient medical records, and ….. should be kept in the patient’s medical …... file.”

Then he goes on to the next question, which is question 4 at page 239, paragraph 389. So he repeats his fourth question that he asked himself:

“Is it acceptable for certain medical records to be kept apart from the main hospital clinical records ….. for a patient?”

He says:

“In general this is not an issue, because in many if not most hospital units the medical records for in-patients are kept in a relatively inaccessible (to parents) area such as the ward manager’s office. But in some units, in-patient medical records are left by the bedside, or at the end of the bed, freely accessible [to] parents. This might be done in a spirit of partnership with parents, and is somewhat akin to the general use of the parent-held ‘red book’ containing all basic information about a young infant. It requires little imagination to appreciate that this open system does not lend itself to clinical situations when a full sharing of clinical thinking with parents could be counter productive. Such a situation could be emerging concerns about child abuse.”

So what the Professor is there saying is that when the child is an in-patient – and can I underline that – when the child is an in-patient there may well be grounds for saying that there should be a slight separation of the files where there are emerging concerns about child abuse, but thereafter, i.e. if the child is dealt with as an out-patient, or afterwards these concerns about having a temporary separation of the files no longer apply, and you may wish to make a note there that Professor David deals with this aspect at paragraphs 93-96 on his second report, which I will come to in a moment.

Then he makes the point that I have just been over-making over the page at paragraph 391, where he says:

“Thus it is that in certain child protection cases, and in certain hospital units, while a patient is in hospital, a separate set of records is created, records that are accessible only to health professionals and not to the parents or carers. I have visited units where such a policy has been in operation. The key point is that in such cases members of staff ([i.e.] doctors and nurses) would always know that separate records were being kept…”

Madam, I simply do not know whether in either the Royal Brompton or in North Staffordshire Hospital they had such a policy of, as it were, bedside notes, if I can put it that way, but all Professor David is saying here is that if there is such a policy of having bedside notes available to parents, there are certain circumstances where there are emerging concerns of child protection where it is permissible in those circumstances to have separate notes, but thereafter of course they should be merged back in when the child ceases to be an in-patient, because thereafter the parents do not have access to the bedside notes.

Then we come to question 5, which is dealt with at paragraph 397, page 243, “Separate case files”. He asks the question:

“It appears that in some of the cases under present consideration, Professor Southall set up and kept special [case] files of his own, files which contained extensive documentation relating to a particular case. These files have been referred to as ‘SC’ files. I understand that ‘SC’ is an abbreviation of ‘Special Case’. If it is true that special separate files were set up, the ultimate question is whether or not it is appropriate for a paediatrician to create and store a separate file of documents relating to a case.”

At 398 Professor David says:

“The exact origin and purpose of these SC files is unclear”.

Pausing there, at the time that Professor David wrote this first report we had not heard what Professor Southall had to say about them, but in his subsequent report, which I will come to, Dr Southall had provided an explanation, which is dealt with in the subsequent report. It says:

“The exact origin and purpose of these SC files is unclear, but I note that the North Staffordshire Hospital cardiorespiratory monitoring activity charts has a space for the ‘Special Case number’ at the top of each page, immediately below the hospital number.”
Madam, just so that you can understand what Professor David is talking about there, if one looks, for instance, at the special case file relating to Child H, which is at C7 -pausing there for a moment, one can see the simple size of these parallel files; this is the parallel file on one patient (Indicated), Patient H – and at page 21 one can see a cardiorespiratory monitoring activity chart, and one can see on the top there is a hospital number and then there is a special case number relating to that particular child, and this is, as it were, the special case file relating to that child. I will come to this in more detail in a moment, but part of Dr Southall’s research was to have a child sleeping overnight in a hospital in some sort of special jacket to which numerous probes and monitors were attached, which recorded a number of matters relating to the child, and at the same time someone in parallel was writing down what was happening to the child itself, and that is what a cardiorespiratory monitoring activity chart is. I will explain those in more detail, but I just wanted you to see what one was.

Now perhaps we can re-read together paragraph 398 of Professor David’s report, where he says:

“The exact origin and purpose of these SC files is unclear, but I note that the North Staffordshire Hospital cardiorespiratory monitoring activity charts has a space for the ‘Special Case number’ at the top of each page, immediately below the hospital number.”

He goes on:

“Plainly the extent of the materials retained in the cases presently under [consideration is] quite significant (….. more than one or two items), but I doubt that the extent of the papers affects the principle.

Much hinges on the purpose of keeping these ‘SC’ files. If they were to provide a fail safe, in case the main hospital medical records became lost (unsatisfactory as it is, this can and does happen), then whilst I have some sympathy with the frustration that results from the loss of records, it is plainly quite impractical (and a misuse of resources) for a paediatrician to make and keep a full back up copy set of every patient’s medical records just in case one file goes [away].

If the special case files were for the purposes of research, then other considerations come into play, such as whether research ethics approval had been obtained and whether or not informed consent for the research had been obtained.

If the special case files were kept purely for administrative convenience, for example to assist with the preparation of reports when working in one’s office or at home, then subject to two provisions in the next paragraph, it is hard to see what criticisms could be made.

To conclude, I am not aware of any regulation prior to 2000 that disallowed paediatricians [from] keeping separate photocopies of selected medical records. Whilst I can fully sympathise with families who may have felt that ‘secret’ records were being kept ‘behind their back’, in the time period under consideration it is unclear to me on what basis one could seriously criticise the practise, provided:

that the files contained only carbon copies or photocopies and did not ever contain any original medical records for a patient;

that the purpose of creating these S/C files was not in any way connected with research (unless there was consent in each case combined with research ethics approval)”.

Madam, Professor David slightly modified those views when he was able to see what Professor Southall’s explanation for them was, because Professor Southall’s explanation did not wholly cover the three factors set out which Professor David considered: firstly, are they kept as a failsafe? Are they kept for research? Are they kept for administrative convenience?

Question 6 was dealt with under “retaining a document that is not placed in the records”:

“Is it appropriate for a paediatrician to receive an original document concerning a child but to cause it to be retained anywhere other than the child’s medical records?”

This is an important answer:

“It follows from what has been said thus far that if the document is an item that should be filed in a child’s medical records |(such as, for example, a laboratory report, or clinical correspondence) then it would be wrong to do anything that would prevent that item from being filed in the child’s medical records. Exceptions to this would include correspondence concerning legal matters and child protection case conference minutes”.

At question 7 he asks the question:

“Is it appropriate for a paediatrician to make (or cause to be made) or obtain photocopies of a child’s medical records?”

Professor David says,

“The answer is that it depends upon the purpose and whether or not that purpose is legitimate and justifiable”.

Then he deals with question 8, which I need not trouble you with as it is not a matter that impacts directly on these heads of charge. Then he deals with question 9:

“Is it appropriate for a paediatrician to remove (or cause to be removed) an original document from a child’s medical records and replace (or cause to be replaced) that document with a photocopy of the original? Further, is it appropriate for a paediatrician to place (or cause to be placed) elsewhere an original document that should be in a child’s medical records and provide (or cause to be provided) a photocopy in such medical records?”

At this point Professor David starts getting stern about the integrity of medical records. At 412 he says,

“I cannot envisage a legitimate reason for doing such a thing. I am uncertain about the ownership of medical records, and whether they are the property of the hospital or the Secretary of State, but a patient’s clinical records are certainly not the property of any of the healthcare professionals even if they have contributed to the records; e.g. by writing handwritten entries or dictating letters of summaries.

Although I cannot think of any formal guidance or regulations that concern this matter, one would regard removal of one or more original items from a patient’s medical records as a form of tampering with the records, and this would plainly be quite unacceptable. The same comments would apply to failing to place an original item into a child’s medical records”.

He is saying that in the context of being asked, “Can you take an original out and replace it with a photocopy?”

Question 10, which is the key issue with which we are concerned in Appendix 1, is taking out an original or failing to place an original in the medical records with no question of any photocopy being placed elsewhere:

“Is it appropriate for a paediatrician to remove (or cause to be removed) an original document from a child’s medical records and place it (or cause it to be placed) instead in an alternative file that is kept and stored separately from the child’s medical records?”

By “alternative file” in the context of this case we are referring to the SC file. The question continues,

“Further, is it appropriate to place (or cause to be placed) in such alternative file an original document that should be in a child’s medical records?”

You can see two situations envisaged there. One is that the original is removed and placed in the SC file; secondly, an original never gets into the SC file in the first place; it is merely placed in the SC file and never gets into the original medical records. What Professor David says about that is this, at paragraph 415:

“It is hard to see how one could justify removing an original item from a child’s medical records unless that item had been placed there incorrectly, for example a laboratory report that had been misfiled and related to another patient. Removal of original items from a child’s medical records would be regarded as a form of tampering with the medical records and would be quite unacceptable. Once an item had been removed, it would cease to be accessible to others involved in the care of a child. Failing to place (or causing such a failure) an original item in the medical records would be no different in its inappropriateness, its seriousness, and its effects from removing (or causing the removal of) an original item from the medical records.

The issue that causes the problem is the removal of the item from (or the failure to place it in) the medical records. The fact that the item may be located safely elsewhere would not excuse the tampering with a child’s medical records unless there was a note to that effect in the medical records or unless the staff (e.g. doctors and nurses) looking after the child were aware of the existence and location of a separate section of records”.

Again, that largely applies to the in-patient situation. Professor David will give evidence about the potential risks that occur if an individual item is not contained in the appropriate medical records. I anticipate that he may well point out that, whilst it may appear an innocuous document that is only to be found in an SC file and not elsewhere -- for instance, in this case we have an MRI scan for one of the patients that is not there -- the consequences of that when subsequent clinicians or indeed legal people look at the disclosed medical records which do not include the SC files, can provide an entirely unacceptable risk to patients or, indeed, to patients’ parents.

There is a common knowledge – it is particularly acute to some of the people in this room – that in the case of Sally Clark, the lady solicitor who was convicted of murdering her two children, the main ground upon which she was ultimately released after two years in prison was that a medical investigation report was subsequently found which was not in the child’s original medical records. That is the element of risk and the importance in this case of having original medical records, not elsewhere in this parallel and inaccessible series of documents called the “SC” files.

Professor Southall has given two brief and one major explanation as to why he holds these parallel files. These explanations of Professor Southall are at C2, Section 6. Before we go into the wording of those, can I ask you to replace a page which you have in Section 6, under Tab 5, which is the first page under 6? It starts with a document headed, “Hempsons”, page 8 at the top. Can I ask you all to remove that page 8 and it will be replaced with another page 8? Perhaps all the old page 8s can be picked up at the same time and destroyed. (Document handed)

It has been a considerable mystery to the complainants, and indeed to the complainants’ advisers, as to precisely what are these SC files and what the purpose of them is. In the course of the extensive material, original material if I can put it that way, in this case, there have been two documents for which Professor Southall has provided or sought to provide an explanation and then there has been a major document which I will come to in a minute. Can I ask you to go to Section 6 at Tab a? First, can I ask you to delete in pencil the words “LC” which should be replaced by “A”. So we are dealing with child A in Section 6. The letter at C6 is a letter dated 15 August 1995, and it relates to a child who we know as Child A. It is a letter from Professor Southall when at North Staffordshire to the Director of Administration at his old hospital. You will hear evidence from that gentleman himself, Mr Chapman, who is going to give evidence, that he, the Director of Administration, knew nothing about S/C files until this series of correspondence arose. Professor Southall says, under paragraph 1,

“We always kept our own medical records for all the special cases that we dealt with at the Brompton Hospital. I have arranged for these to be photocopied and enclosed with this letter. However, as far as hospital notes are concerned, I quite agree with you that there are no hospital notes missing between --- ”

– those dates. I need not worry about that. This is the first admission, as far as the Brompton is concerned, and I hope I am not wrong about this, when the Brompton Hospital heard about these special cases records.

MR COONAN: I am sorry to interrupt my learned friend. It may be the first intimation Mr Chapman had rather than the Brompton Hospital. One has to be accurate about that.

MR TYSON: I readily accept that. This is the first indication that the Director of Administration and thus the person ultimately responsible for the medical records was aware of that there were separate parallel medical records being held on the children at the Brompton.

Pausing there a moment, of course – and I make the point and it is part of the heads of charge – these parallel medical records, these S/C files, relating to Brompton children were taken by Professor Southall up to North Staffordshire where they were never patients.

Then there is a subsequent letter under tab (b) of section 6 where a further explanation was given by Professor Southall to the Deputy Business Manager at his own hospital. This is a letter of 16 April 1999. It is re Patient D. It says:

“In no way was [Patient D] subject to any form of research in my department. I enclose his special case file so that you can look through it and decide how you describe the various contents of this. My view is that they are part of social services and other hospital records rather than being directly related to his admission to the North Staffordshire Hospital under my care as a consultant paediatrician.”

Again, this is an explanation of what these S/C files are and what they are for, but I have to say it is not an explanation that the complainants understood.

In due course, and this is the document that you have at 6©, on instructions, Dr Southall’s solicitors, Messrs Hempsons, burst into print between pages 8 and 19 to give an explanation as to what these special cases files are and how they came into being. I need not trouble you with the detail of this letter but you will have ample opportunity to read it at your leisure in a moment, and I am going to ask you to read all the reports at some time.

Can I say in brief what I understand Dr Southall to be saying? He indicates in this long explanation that these parallel files have two separate purposes. Firstly, and originally, they were to record multi-channel physiological data that he was obtaining on children non-invasively on a research basis – that is what it says – to study ---

I see shakings of the head. The first main paragraph on page 9 of section 6 © states:

“Professor Southall first started using Special Case (SC) files in about October 1980. At that time he was working as a Senior Lecturer in Paediatrics at the Cardio-Thoracic Institute at the Royal Brompton Hospital. He was involved in clinical research concerning the causes of what had been termed Apparent Life Threatening Events (ALTE) during infancy and early childhood. He was particularly interested in possible mechanisms for Sudden Infant Death Syndrome (SIDS). His team developed long-term tape recording of physiological signals from non-invasive sensors measuring ECG --- ”

For the benefit of the lay members of the panel, this is electrocardiogram which checks heart rates.

“ --- oxygen saturations, expired carbon dioxide, EEG --- ”

That is an electro encephalograph which measures brain waves.

“ --- and breathing movements. The equipment used could be attached without discomfort for time periods long enough to capture any apparent life threatening events occurring in the baby/child during the period of the recordings. At the conclusion of a period of monitoring the recordings were analysed for any abnormality and, if abnormalities were identified, Professor Southall and his team were able to advise the parents of their child’s problem and implement appropriate treatment.

As the team became adept at understanding and diagnosing --- ”

This is clearly showing a research study, in my submission

“ --- the causes of ALTE, infants and young children from all over the UK and from abroad were referred in the hope that the team would be able to identify the causes of ALTE and ways of treating them, including the use of home oxygen monitoring and the training of parents in basic resuscitation. The physiological recording systems and home monitoring equipment developed by the team was unique at the time and was used for clinical investigation and management.”

As I was saying, initially these S/C files were used to record data for study and treating ALTEs and the study, to use the word, was also connected with looking at possible mechanisms for SIDS (sudden infant death syndrome).

Dr Southall, as I think I have read, developed equipment to capture this physiological data on a child, as I think I have also said. It involves the child wearing a special type of jacket which had all these leads coming from it so that what was happening to a child’s heart rate, a child’s breathing, a child’s brain waves and the like could be observed if and when a child was suffering from an apparent life-threatening event (at the time, for instance, of an apnoea or the like) and if a child had stopped breathing.

As a result, Dr Southall had tape recorded all these matters over a period of 8 to 12 hours, and he analysed and produced documents such as, if we look at C5 relating to Child A, the results of the analysis. I anticipate that we will see that if we look at page 147. One would see that this is in relation to Child A as an example, and it says:
“Report on 8-hour recording of ECG, breathing movements and oxygen saturation”. You see the date of that tape and you see the SC or special cases number in the middle of the page, one-third of the way up. You will see the reason for the recording: “Episodes of pallor and drowsiness”. Then you will see the findings of the recordings. The actual recordings are down the left-hand side. Then the breathing pattern, it is said for instance in this case, is “Normal during episodes of pallor”. We see that the date of the report is 6 July by Dr Southall and that copies were to be taken for the department’s patient’s notes, the patient’s Brompton Hospital folder and the accounting file. As I understand it, the department’s patient’s notes was the SC file.

In parallel with this reporting or monitoring of the equipment attached to the child, a nurse or parent would compile something called a log of infant activity. While the monitors where whirring, as it were, a parent or nurse would record what was actually happening to the child at the time. Here again, looking at the same file as we were just now and moving on to page 153, one can see, though it is not completed here, on the top right hand corner, the special case number relating to this child. One can see that this is headed “Log of infant activity – nursing-medical intervention” in relation to Child A and what was happening to the child at any given time during the running of the tape. For instance, if we look at the tape counter at 170, about two-thirds of the way down, an incident took place at 19.54. It is there recorded that the child was drowsy, pale, floppy with small pupils, for instance. That would be, as I understand it, the process of the study that was going on at the Royal Brompton Hospital at the time and that would be compared with what was happening on the monitoring at any given time.

According to Professor Southall, the compilation of this activity chart that we have just been looking at was over and above the ordinary nursing notes or Cardex.

Later on, in the course of his work in this area, it became apparent to Dr Southall that some parents were inducing or fabricating symptoms of ALTEs or apparent life threatening events, in their own children, and he considered that there were considerable advantages in using his hospital monitoring to investigate this possible source of an ALTE. So children came to be admitted for overnight monitoring initially at the Brompton to seek to establish both natural and unnatural causes of ALTEs.

Thus we come to the situation of the two reasons for having, according to Dr Southall, these special cases files: firstly, to keep documentation relating to the specialised monitoring of children that he was undertaking; and, secondly, to store confidential documents relating to child protection issues. These are the two grounds that are set out in C2, tab 6 at 6 © at page 12 at the bottom of the page.

It states:

“Thus, Professor Southall used Special Casers files in two situations:

1. To keep documentation relating to the specialised monitoring of children that he was undertaking. In our submission these documents were not part of the usual medical records of the patient and it was entirely proper for them to be kept separately.

2. To store confidential documents relating to child protection issues.”

Professor David broadly accepts reason 1, subject to a number of heavy provisos. I will deal with Professor David on these files before we break. Professor David broadly accepts the reason why, subject to a number of provisos. The first proviso is that nothing was recorded in the activity logs and the like that should have been in the main hospital records, and particularly in the main hospital nursing records. As you see, the nurse was being asked to keep, as it were, two nursing files at the same time, the ordinary nursing cardex and this additional activity log on what was happening to the child at any particular time.

Secondly, he accepts that it was appropriate to keep these files separate at a time when the child was in the hospital being monitored, or shortly thereafter if the child was continuing to be monitored on a home monitor where access might be required to these files in particular circumstances, but not thereafter. There might be a time when it was appropriate to keep these materials separate whilst there was an in-patient but not when there was no other reason for doing it.

As far as the second matter is concerned, to store confidential documents relating to child protection, again you will hear from Professor David that he does not accept reason 2 in its entirety, and in particular where there is clinical correspondence contained in the SC files and nowhere else.

I can just end this passage by taking you to two paragraphs in Professor David’s second report which deals with appendix 1. You will find that at C3, tab 7(b) at paragraphs 75 and 76, which is at page 31 of that document.

(After a pause) I need to draw your attention to paragraphs 75 and 75. I can see that I have not won in identifying it to everybody yet. Paragraph 75 says:

“Indeed it seems to me particularly important that correspondence between clinicians that voices child protection concerns should most assiduously be placed in the patient’s medical records. It is an important general principle that this kind of information should be shared between professionals, and one would want any clinician who looked at the hospital records of a child to be fully informed about child protection concerns.

Ultimately, I suppose, the question is what is in the patient’s best interests? Should information about child protection concerns be actively excluded from his or her medical records, or should there be a positive action to ensure that all such concerns are carefully filed in the patient’s medical records? My answer would be that I cannot see how a patient could benefit by concealing this information, whereas failure to communicate this information with other health professionals at the hospital (by excluding it from the patient’s medical records) could possibly be harmful and could lead to inappropriate actions or treatments.”

Madam, having given you that guide through the purpose and reasoning behind medical records and about special cases files in particular, I now need to take you to the individual patients and the individual special cases files.

THE CHAIRMAN: Would you consider this an appropriate time to have a little break?

MR TYSON: Entirely appropriate, madam.

THE CHAIRMAN: It is 11 o’clock, so we will break until 11.30.

(The Panel adjourned for a short time)

MR TYSON: Madam, could I start by making apologies for a technical error which I made apparently in the course of my opening this morning? I indicated that when a child was undergoing this 8-hour monitoring some sort of special jacket was put on to which various leads were attached. As I understand it, there was no special jacket; the leads are attached directly to the body of the child. I apologise for making that technical error.

In order to understand the individual allegations in Appendix 1 I need to give you a brief history of each patient so that the document within Appendix 1 can be put into context. Can I ask you please, in relation to Patient A, that one needs to have in front of one C2 at section 3 and the only other bundle you need in this context, or we will come to, is C5, the first section, which also relates to Patient A.

You can see, madam, by looking at Appendix 1, that the allegation is in respect of this child (whose SC number was 1209) that there was an original of an MRI scan found in the SC file and that original report – I am sorry, it is not the scan itself, it is the report – of the scan is, we say, not found elsewhere in the child’s medical records.

The story of this child can be divined by looking at section (d) under tab 3 which is a letter of referral from Great Ormond Street to the Brompton Hospital, undated, but I will give you the date when you locate the page. This is a letter dated in January 1987 and we can see the date by reference to subsequent documents. As I say, it is at C2, section 3(d).

It is a letter addressed to the doctor there mentioned. As I understand, technically at this time – nothing turns on it – in fact Dr Southall did not have admission rights in view of his particular post at that particular time at that particular hospital, so formally the letter had to be written to this particular doctor.

You can see that the date of birth of this child was August 1986 and this was a letter written in January 1987, so the child would be about five months’ old at the time of this letter.

“Dear Dr ….

Re: [Child A] …

Thank you for agreeing to take [Child A] for further investigation.

He came to us for a third opinion about his episodes of unexplained pallor, hypotonia, shallow breathing and small pupils. The problems started at seven weeks of age before which he was said to be a very alert active normal baby. He was admitted to his local hospital … having been drowsy and quiet all day, although he had fed well. He had two episodes of pallor shallow breathing and limpness during which his parents thought he may have stopped breathing. At his local hospital further similar episodes were noticed, but no other abnormalities found. Two days after admission he had several similar episodes witnessed by the medical and nursing staff one of which was associated with twitching of is limbs and which were thought, on balance, to be fits. His parents described these as ‘grand mal convulsions’. No cause for these episodes was found on EEG, ECG, LP, CT scanning or serum chemistry the results of which are to be found in the photocopy of his … discharge summary. He was started on phenobarbitone and pyridoxine and discharged.

His parents then had him referred to [a doctor in another city] and his parents sold their mobile home, father gave up his training to be a psychiatric nurse and they moved in with [the mother’s] parents, though they both actually lived on the ward during his admission. His anticonvulsant medication was stopped, having been of no benefit in reducing the frequency of his attacks according to his parents. Several episodes were noticed in hospital, none involving cyanosis or convulsive activity and most of his medical attendants thought that they were compatible with normal sleep. He was discharged and came back the next day having had a very severe episode, witnessed by his parents. A further period in hospital revealed no change in the nature of the attacks yet on a trip to the city centre he had an attack sufficiently serious in his parent’s opinion to necessitate him being transported at great speed to the hospital by a rather panicky taxi driver. His parents pushed hard for transfer and he was admitted under [the doctor’s] care on 10/12/86 and has been an in-patient since.

His past medical history is relatively unremarkable in that he was a normal vaginal delivery at 41 weeks gestation following a pregnancy complicated by a ‘flu’ like illness at 16 weeks and premature labour at 32 weeks treated with intra venous ranitidine. During this episode mother’s blood pressure was witnessed by her husband to have dropped to 20 mm Hg for five minutes and the foetal heart monitor became irregular. He was in good condition at birth and had no neonatal problems.

He is the only child of unrelated Caucasian parents who are well. His father is 41 and before training to be a psychiatric nurse (he was two years in his training when he left) has had jobs as a reporter for New Zealand Television and a soldier in the American army according to what he has told various people though we have not challenged him on these points. His mother is a 28 year old lady who suffers from Reynauds”,

and as I understand it, for lay members of the Panel, that is a circulation problem particular in the outlying parts of the body, such as fingers and toes,

“and who worked with mentally handicapped adults.

On admission he was found to be thriving on breast feeds with his weight being
6.25 kg … his supine length 65 cm … and his head circumference 41 cm … He was normotensive, developmentally normal and the rest of the exam revealed no abnormalities.”

The letter indicates various investigations that were made and I will run through these quickly. Biochemical were all normal, toxicology – no abnormal compounds, haematology normal, electro physiology – ECG normal, imaging CT brain scan normal, barium meal and swallow normal, sleep study normal transcutaneous carbon dioxide and oxygen.

“CLINICAL COURSE:

OPINIONS:

Cardiology: normal examination and 2D echo. No cardiac cause.
Respiratory: No evidence of a respiratory problem.
Gastroenterology: Some features could be explained by gastro oesophageal reflux.

OPINIONS:

Neurology … : Unlikely to be fits.
Neurology … : Diagnosis uncertain ?? migrainous (vertebro basilar)
All consultants wondered about Muchausen-by-proxy.

[Child A] had numerous episodes while on the ward most of which were very mild in that he was easily rousable when the ward staff arrived. All attacks occurred when his partners were in the room apart from one which occurred within ten minutes of them leaving the cubicle. None occurred at night. We witnesses one severe episode during which his pupils were very constricted (a feature of even his mildest episodes) and he was unresponsive to pain, with shallow respiration. His parents commented that the Pethco he had prior to the CT scan made him look similar and on that basis we attempted to reverse an attack with naxolone which we did convincingly on one occasion. In view of the negative toxicology screen from Guy’s the significance of this observation remains unclear.

He has otherwise been well apart from a recent upper respiratory tract infection with vomiting ang loose stools from which no bacterial pathogens have been isolated.

His parents have remained with him thorughout his stay.

Thank you again for taking him.”

On the basis of that referral letter from Great Ormond Street to the Brompton the child was admitted and we can see that at subsection (e) in the next section. I have just read to you from (d) and now I am taking you to (e).

We can see that the child was admitted to the Brompton and you can see from the bottom left-hand corner that the child was admitted on 10 January 1987, which was why I gave that letter that I have just read out as January 1987. The admission history is on page 2 and I need not take you to that. You can just see at the top of page 4 an entry in the top left-hand corner, 10/1/87. This is the clerking history on transfer from GOS:

“Admitted for monitoring.
c/o attacks of apnoea [that is stopping breathing], deep unrousable stage, pallor, hypotonia and small pupils.”

Much the same history is set out as was in the Great Ormond Street letter which I have read so I need not take you to that. Going to page 5 just very quickly one can see that in the middle of the page he records the admission to Great Ormond Street Hospital in December 1986 and about two-thirds of the way down we can see a history recorded:

Had many attacks at GOS – easily rousable when staff arrived …”,

and then four lines from the bottom:

“Always has constricted pupils during attacks or moving pupils, often unresponsive to pain, shallow resps [respiratories] and apnoea, 15-60 secs.
Goes an awful colour – waxy & pale.”

Then the child was admitted and I need to take you to the observation of an episode by a medical member at page 7 on 11 January where it says:

“(Relatively) minor episode observed”,

and on examination:

“Child → limp with pinpoint pupils.
Seemed asleep.

o/e pale … 0 cyanosis
pupils pinpoint. Reactive to light …

…

Limbs: Tone – normal → floppy”,

and it deals with reflexes. Then it appears to say that on taking the blood pressure that woke him up. Over the page:

“Following waking – pupils immediately dilated
Child alert moving normally …”,

and the assessment we can see was:

“Significant neurological signs
? Fits
? Raised intracranial pressure spikes.”

Guy’s Poison Unit was contacted, and nothing positive found. As you see, extensive investigations looked at the cause, including whether the child had taken anything that it should not have done.

Then there is another attack recorded as being seen by the doctor at page 9. He indicates that it was a “moderate attack this morning. Lasted in total 11 minutes, Nurse called at 2 minutes into attack.” There the doctor clinician gave the description of the attack that was noted, a description not dissimilar to the description I have already read. The impression, at the bottom of that page, by that doctor was “Obvious pathological process occurring”. He lists some other view, but the photocopy does not permit me to indicate to the Panel what that other view was.

Then on page 10 there was a clinical note of a long discussion with the parents. This clinical note was made, as you see, by Dr Samuels, who was Dr Southall’s registrar:

“They feel more ‘at home/ease’ here, then this mornings was about 8th major episode [Child A] has had. In view of infrequency [and] unpredictability, they are [very] anxious about [the] episodes (? Could these plus [something] be causing brain damage to be revealed ….. Mum [was] in tears after 3rd major episode ….. worried about coping at home.

Reassured that no transfer/discharge planned for next 7-10 [days].

Given opportunity to leave/take break for [24 hours] if they wish (mother may still express [breast milk] for [the child]).”

Family history is recorded on the mother’s side and on the father’s side, and “? Is this cerebrovascular functional disorder” was a possible diagnosis.

“Suggest ….. [blood pressure] monitoring
BM stix in next major episodes.
? need for cerebral angiogram.”

Then there is at page 11 another note by the same doctor, Dr Samuels, about three weeks later on the 29th, indicating:

“Occasional small episodes; may go some days without.
Gastro-oesophageal pH monitoring showed borderline oesophageal acidity [and] no clear fall in pH with a moderate episode and acidity showed no clearcut clinical change.

[Seen by]” - and I think those are the initials of a Dr Warner, who was a consultant at the premises - “Try gaviscon post-feeds for few days initially.

David Southall saw moderately severe episode from onset to completion. No obvious neurological/respiratory problem. ? significance of pupillary reaction – may be response to light/movement/noise etc.

Feels no need to perform further cardiorespiratory monitoring or video.

Plan: To [discuss with] Dr Leonard’s team” – Dr Leonard’s team were the Great Ormond Street team – “re: probability of going home – support (medical/social) needed locally”.

You see that there is reference there to the monitoring, and if one keeps that page open and turns to the SC file relating to this child, which is page 5, and go to page 144, we can see two examples of the kind of monitoring that I was talking about earlier. In particular to this case, you will see on page 144 this is a report of eight hour recording on this child, giving the SC number in the middle as 1209 and setting out Dr Southall’s analysis of the monitors, and then on the next page is the “Log of infant activity – nursing-medical intervention”, which shows what was happening to the child at any give time. So this could be cross-referenced to the monitors. Through the rest of this bundle you will see similar examples both of eight hour recordings and of logs of infant activity.

We see we have now reached February, the child was admitted on 10 January, so all these bits of monitoring had been taking place, and I need to take you back to C2 to pick up the story at 3(e) 12. There we see, in the middle, where it says, between 3 and 5 February, so after 5 February, the word “Conference”, and if I can ask you to go over the page, and you will see at the bottom in handwriting “From conference” on 4 February. The significance of that is that in fact there was a child protection conference on 4 February involving a number of clinicians and members of social services. For that we need to go back into C5, keeping page 13 open on this bundle, back to C5 at page 136. There you will see that on 4 February 1987 there was a case conference held in relation to the family, and you will see amongst the attendees there was David Southall, Senior Lecturer in Paediatrics at the Brompton, and Dr Samuels, who is a Paediatric Registrar at the Brompton, and also present were doctors from the two previous hospitals, and you can see that Dr Leonard from Great Ormond Street was there as well. The significance of this is that Dr Southall gave a report on the child being there at page 137, and indicated that:

“…[the child] had been referred from Great Ormond Street on 10 [January] ….. having been there for one month for investigations into episodes of pallor associated with drowsiness, loss of consciousness and small pupils. These episodes have defied investigation at three different hospitals…”

He indicates that:

“One possible diagnosis was that the parents [were] inducing attacks by smothering and as the Brompton Hospital ….. had previous experience of this, and has facilities such as multi-channel tapes, EEG and video surveillance, [Child A] was referred there.

Dr Southall said that as the attacks were occurring so frequently, [Child A’s] breathing movements were taped for 22 hours. He had two attacks during this time and there was no evidence of interference with the baby at the time of the attacks. [His] breathing was regular ….. as would be expected during sleep ….. no indication that video surveillance was necessary ….. not pursued.

At Great Ormond Street , investigations were made into the small pupils and tests were made for abnormal levels of opiates, which may have been administered at feeding, but nothing was found. Urine samples and samples of breast milk were examined by the police forensic team, but these proved negative.”

So extensive research is going on to see the causes of these, including seeking to eliminate or otherwise any fault of the parents associated with this. They say:

“Another major issue was the parents’ unusual manner and behaviour and [Mr A’s] background history. Although suffocation [had] been excluded as a cause of the attacks, other bizarre or unusual causes have not.”

MR COONAN: Could you read the rest of it?

MR TYSON: Yes, certainly.

“Dr Samuels and Sister Bossom observed one episode when [Child A] had finished feeding.

Dr Southall asked if an EEG had been undertaken previously and Dr Darmady said that she had recorded in the notes that a 24 hour EEG was carried out in [the town there mentioned] and repeated in [the town there mentioned] and there was no difference. Dr Southall said that a two channel ambulatory EEG would be useful to define what type of sleep [Child A] was in, and also an NMR (Nuclear Magnetic Resonance). These could be carried out at the Brompton…”

There were other discussions by other contributors to the debate, and I only need to pick this up at the bottom of page 140, where you see that it went into a general discussion area now, and over the page, and this is under “General discussion”, we see at the second paragraph on page 141 where Dr Southall was coming from here, it says:

“Dr Southall [felt] that he would recommend that [Child A] is taken into care temporarily, so that he could be assessed without this parents being present.”

In the penultimate paragraph:

“It was agreed that [Child A] should be kept at the Brompton Hospital for the time being and [that] an EEG and NMR would be completed. In the meantime, the Social Services Department will discuss with their legal department whether Wardship proceedings should be instigated.”

So the recommendations were that [Child A] remained in hospital while further tests were undertaken, legal advice sought about wardship, another conference on the 13th.

So you can put the SC file down for a second and go back to page 13 of C2, section 3, tab (e). We see effectively what appears to be Dr Samuels’ report back of that strategy meeting, where he says:

“From conference 4/2/87

Assess brain stem/possibility of narcolepsy.
In view of very odd parental reaction: father not left mother or baby in hospital, no attempt to sort out future/home, comments suggesting paranoia/delusional state e.g. NHS exploiting him to resuscitate his child (child has not required any formal resuscitation).

For consideration of warship of court.”

Then we go back from page 13 to page 12 and pick up the chronological story again, because we see that halfway down we come to 5 February, which is after the case conference, which we have seen, and this is another conference, a medical conference rather than a social services conference, here being mentioned on 5 February 87, and we see “For: EEG – 24 [hours] including polygraphic for REM ….. NMR – [9 o'clock Wednesday]”. I think, although I will be instantly corrected if I am wrong, that what was in 1987 called an NMR we all now call an MRI scan. “? Narcolepsy. Re-discuss [on Friday 13th].”

Then we get to page 14, which is a record by, it appears again, Dr Samuels, of the second case conference. Just keeping that document open a moment, and I will just take you to the fact of that conference, and so I ask you to have a quick look at C5, page 122.

We see that there was a second case conference on 13 February and again present included Dr Southall. As with the previous case conference, of course, one sees that the parents were not there. This is, as someone who practises in this field, in the pre-Children Act era and so things were dealt with slightly differently then and parents did not have as many rights as they did after 1989. But here we had these matters going on without the parent’s knowledge, behind their backs. I think formally now, as you have seen in the M case, if one wants to discuss matters behind parents’ backs one now calls them “strategy meetings” rather than formal case conferences. But that is by the by.

Can I take you back, please, to that case conference where we see, at page 124, Dr Southall is telling that case conference that during the MMR the brain was normal and that the ECG had shown that during an attack the child was in deep normal sleep. Dr Southall’s view was that the “attacks” were probably caused by his parent’s attempts to wake the child up during sleep. He says,

“He goes into a sleep deeply and very quickly. There was nothing wrong with him; he was a normal healthy baby”.

We can see in the general discussion on page 128, in the fourth paragraph, that after considerable discussion as to the appropriate timing,

“it was decided to take out an originating summons to freeze the present situation”,

via wardship. I think the broad suggestion was that the child was perfectly normal but the parents were not. That is recorded in the medical notes – I go back now to C2, section 3 at page 14. There we can see that it is recorded by Dr Samuels that,

“Medical investigations normal; felt that episodes of periodic hypersomnolence (narcolepsy felt to be excluded) were of no great life threat to [Child A]; i.e. no change in HR/oxygenation/breathing. Still expression of concern from various parties involved in [Child A’s] case that parent responses (particularly father’s) are extraordinarily odd”.

The decision – going two-thirds of the way down – at the conference was to make the child a ward of court. Parents were talked to by Dr Leonard and were very upset and angry by the court order because they had had no warning. The parents felt very wronged and that they would be scared for the rest of the child’s life.

In the SC file relating to this child, there are a considerable number of documents, of which of significance in the context of this case is page 131. This is the document in Appendix One relating to Child A. If you look at Appendix 1, you will see that this is noted as the SC file, and it may be helpful to note that it is in fact the C file, page 131. As you can see, this is the report of the MRI scan. An original document was found in the SC file. There is no MRI scan report in the child’s hospital medical records. This MRI scan report can only be found in the SC file.

On this point Professor David says that it is undoubtedly a medical record and should be in Child A’s hospital medical notes. On this point also Dr Southall says that he agrees that it is an original medical record; he agrees that it should not be in the SC file; but he denies responsibility for it being there. That is the Panel question to decide.

Madam, Child A’s SC file is also considered under heads of charge 13 and 14, which you will see relates to the taking away of that paper file from the Royal Brompton to North Staffordshire; in other words, not following the child, if I can put it that way. This SC paper file – one can see it is pretty large – was taken for uncertain reasons in its entirety to North Staffs by Professor Southall and, the complainants submit, making it even more inaccessible to clinicians or others at the Royal Brompton.

I also need to deal with Child A later when I come to heads of charge 15 and 16, which relate to computer records held on this child as opposed to paper records held on this child, but I will come back to that issue later. There is also an issue as to accessibility of this special cases file – or we would say, lack of accessibility – of this special cases file by Mrs A. But this is a question which my learned friend and I need to have various discussions about before I am able to advance anything further on that and further develop that point. I am hopeful that my learned friend and I can find a way in which this evidence can be presented, failing which it may be a matter the Panel have to determine. But I am not opening nor dealing in any detail with the matter of Mrs A’s search for this file, if I can put it in those terms. We say that goes to the issue of accessibility.

I now turn to Child B, and so one can keep the same files out because C6 also includes the SC file relating to Child B, which is a very slim SC file compared with the others. One needs, in relation to an understanding of Child B’s case, to be looking at C2 under Section 5 – hitherto we have been looking under Section 3. You need to have available, for me to develop the background to this case in relation to Child B, C2, Section 5 and C5, Section (b), which is at the back of the file.

I need to give you the brief facts relating to this case in order to put the Appendix into context. The brief relevant facts relating to Child B can be ascertained by looking at Section 5 of C2 and we start with a letter at Tab (a). This is a letter dated 17 August 1993 from one consultant paediatrician at one London hospital to a consultant paediatrician at another London hospital. It relates to Child B. We can see from this that at the time of this letter Child B was about 11 months old.

The letter says that the child was admitted to that district hospital on 6 August 1993 with a history of recurrent apnoeic attacks:

“On the afternoon prior to admission she was said to have had four apnoeic episodes during which she went blue and stopped breathing.

I am sure you will remember [the child] who had a Nissan’s fundoplication for reflux at St George’s Hospital” –

that is the operation I was briefly describing yesterday to stop the stomach contents refluxing up and going into the lungs –

“approximately four weeks ago and, as far as I can tell from the notes, was seen again at St George’s Hospital for recurrent apnoea post-operatively. Further review of her notes reveals that she has been seen on several occasions at [three hospitals]. I can find only one documented episode of apnoea during a hospital admission and that was with you at [your] hospital during her admission of January 1993.

[Child B] spent ten days on the children’s ward at [this district hospital] and was discharged by me this afternoon after speaking to both parents. I think it is of great interest that absolutely no apnoeic episodes, or indeed anything abnormal, was observed during her entire admission, and anything that was observed was observed by the parents alone when she was off the ward. During her time with us [the child] has had yet another EEG, this time with eyeball pressure, to see if her apparent apnoeic episodes could be mimicked in any way. Her EEG has remained normal and there is no evidence during this test of reflex anoxia.

As at least the fifth consultant to review this case, I have severe doubts about the symptoms reported by the parents now. I can make no comment about neonatal events but there does seem to be a paucity of substantiated apnoeic attacks in a hospital environment, even during the early months of life. I have spoken to our paediatric home care team and I have been in communication with the health visitor through our liaison ward health visitor. These experienced nurses share my anxieties that, whatever the preceding events, the B’s are now presenting Child B with ‘Munchausen’s-by-proxy’. These thoughts are reinforced by the fact that my secretary has just received what amounts to a threatening phone call from Mrs B who said that she will ‘hold me personally responsible’ if anything should happen to Child B. This phone call has come only three hours after I interviewed both parents on the ward in the presence of the ward sister and paediatric SHO. At that time I explained to them that Child B had been entirely well during the entire ward admission and that the EEG was once again entirely normal. I suggested they could either take Child B home, or perhaps they would prefer to stay in hospital with Child B until they saw you at your hospital tomorrow. They both said they were happy to take Child B home.

I hope that nothing untoward happens to Child B during the next 24 hours. It will be of great interest if she presents to [the two hospitals] tonight. I must restate, however, that I have severe reservations about the history as given by these parents now in Child B’s case. I do not accept that it is possible for a child to spend ten days on a hospital ward and be entirely well throughout that time, only to find apnoeic episodes occurring off the ward and not reported to the nursing or medical staff at the time”.

I can now briefly take you to the child who was discharged from that particular hospital on 17 August, and we can see that if we go to (b)(i), which is the next page. It should be a document entitled “Discharge Summary”. We can see from that that two days after the discharge from the first hospital I have just mentioned she was admitted to another hospital. The history was that this young 11-month old girl was admitted to the ward on 19th following a telephone call from her mother.

“Her mother gives a history of a 3 minute episode during which [the child] became pale, hypotonic and with a blank look. There were no fits, cyanosis or apnoea, and [the child] appeared well before and after the episode.”

One can see the observations on the ward at the bottom of the page.

“[The child] was attached to an apnoea monitor and an 02 saturation monitor. During the 8 days of her hospital stay no apnoea or desaturation were noted.”

Over the page it is recorded that the child was discharged home with a plan to supply the mother with a recorder. That might have been what that registrar felt was going to happen but, in the event, the child was referred by the consultant to Professor Southall at North Staffs for assessment. We can see that the child was discharged from this hospital on 27 August and the child arrives at the North Staffs on 1 September. We can see that by looking through to ©(i). The child was admitted under Professor Southall’s care, as we can see at 5 © (i) with a complaint of cyanotic episodes and there is a full note there. We can see what was recorded at internal page 5 by Dr Samuels, who I think I said earlier had gone up to North Staffs with Dr Southall from the Brompton. You see what was recorded was the history, the history of being awake and asleep, vacant, grey/white, blue around mouth, stops breathing, limp, no tone up to three minutes, and describing the episodes there. At the bottom it records that there was a need for continuous recording of what is going on.

To cut to the chase, the child stayed some 17 days at the hospital. During the course of the 17 days that the child was in the hospital, Professor Southall arranged a social services meeting as he was concerned as to whether the mother was fabricating the apnoeas.

We see a discharge summary in relation to this child at 5 © (iii) where we see that the patient was referred with recurrent apnoea. The matters were analysed by a DP sample with a normal recording and the clinical impression was Munchausen syndrome by proxy.

As a result of these concerns, the child was initially placed with foster carers but later allowed back home to live with her parents.

There is one original document in Child B’s SC file that is nowhere else in the medical records relating to this child. That is the referral letter from the district hospital that referred the child to Professor Southall at North Staffs. We see this letter in C5 in the section relating to Child B at the end. It is at pages 33 and 34. It is in the latter section of C5 relating to Child B. The beginning part of C5 related to Child A.

You will be pleased to hear that at the end of this opening I am going to give you another little file which contains all the documents in Appendix One and Appendix 2 so that you do not need to rush around all the SC files to look for the. You need to see them in context.

This letter, which we see at pages 33 and 34, is the referral letter to the North Staffordshire Hospital from the hospital there mentioned. It is an important clinical document. It sets out the history and the investigations that have been made. The only place where this original medical record can be found is not in the child’s hospital notes at North Staffordshire; the only place this original medical record can be found is in Professor Southall’s parallel record in his SC file.

Professor David says in his report, and I need not take you to the point but you can write it down, at 7(b) paragraph 63, that the status of this letter is quite straightforward. It is clinical correspondence and has to be regarded as part of a patient’s medical record. Professor David’s report is at C3, section 7(b), paragraph 63. Professor Southall’s response, and I need not take you to it but I give you the reference, is at C2, section 6© page 17. His response to that is that he cannot say why this letter was not filed in the hospital medical records. He denies placing it there. The ultimate question for the panel is: was it Professor Southall’s responsibility for this important original medical document being in the SC file? It is the same question as you have to deal with under Child A.

Now I will tell you about Child D. One can put away C5 but keep C2 but this time in C2 we go to section 4.

MR COONAN: Before my learned friend does that, there is a small housekeeping matter. I have just noticed that the letter we have just been looking at is also copied in the C2 file. It is just that my learned friend did refer to it and I did not want there to be any confusion about it. It is actually replicated twice.

MR TYSON: Yes, it is replicated in the C2 file for the purposes of history.

MR COONAN: That may well be right but I just rise to refer to it so there is no surprise that it is there.

MR TYSON: I accept that it is in the C2 file, which is there for the purposes of history, but it is an Appendix One document being not found in the child’s hospital medical records at North Staffordshire.

Section 4 of C2 deals with this Child D and this child’s special cases file. It is so enormous that it has a file all to itself, which is C6. For this section of my opening, you need to go to C2 and C6.

Child D is the child with multiple allergies whom I dealt with earlier when telling you about the incident in the corridor at North Staffordshire Hospital in December 1994, which is the subject of the allegation in Appendix Three. I opened that letter in the first section of the report, Appendix Three, the Child D letter.

This is a child, as I think I said, with multiple allergies. I ask you to look at Appendix One. You will see that Appendix One under Child D is divided into four sections. There is a section relating to incoming correspondence, which is section one; there is section two, which relates to original copies of letters between third parties; and there is a reference at section three to outgoing correspondence; then section four relates to one document to which I will come later.

The principal allegation here in respect of Child D and the SC file is that Dr Southall kept original clinical correspondence relating to this child out of the hospital medical records and in the child’s special cases file. He seeks to justify this on the basis that all these matters related to child protection. That is what he says, and I just give you the reference, at C2, section 6 ©, pages 17 and 18. You have a blanket defence, as it were, for these matters being there.

Pausing there, I think it is admitted, but I look to my learned friend and I should have brought this up earlier, that all the matters in Appendix One are in fact all original documents.

MR COONAN: I need to double check. Madam, I say that. My learned friend is being overly delicate about that. You will see there is a vast amount of documentation in this case and that exercise has not yet been fully concluded. Rather than making a hasty admission, if it is correct, I will make the admission in due course. I do not want you to be misled in any way.

MR TYSON: I am grateful for that. I did not mean to bounce my learned friend but it has been an admission that I have been pressing for.

Professor Southall says this is all child protection material. Professor David disagrees that that, if it is a ground, is a ground to exclude it from the child’s medical records. Here, I am sorry to have to say, I am going to have to refer you to yet another bundle, which is Professor’ David’s report. That is at C3 at section 7 at internal section (b). This is a report you have not so far seen. You will have the opportunity of so doing. The first page should say that it is a report of 10 September 2006, amended on 31 October 2006. You will see at paragraph 10 on page 9 what he is being asked to do in this second report.

“Broadly speaking I have been asked to do two things. One is to consider whether the items listed in Appendix 1 … plus two additional documents in the case of child D, can properly be said to be ‘medical records’ that fall within category 10 of my analysis in relation to records as set out … in my ‘extract report’. The other is to consider the responses provided in the letter dated 24 January 2006 from Hempsons.”

If I say that is what Professor Southall says about the matter, those responses are the ones at C2 at section vi©.

So, in relation to the correspondence matter can I take you, please, to paragraph 68, which deals with internal correspondence, and picking it up at paragraph 68 you will see:

“The letter from Hempsons dated 24 January 2006 says that these letters related to child protection issues, and that therefore there was no obligation to file the documents in the medical records.

I do have some difficulty with this. As I see it, Hempsons are saying in their 24 January letter (and if I have misunderstood them then I apologise and no doubt they will correct my error) that any letter that is in any way related to child protection matters need not be filed in the medical records. I find it difficult to go along with this. What percentage of a letter has to concern child protection matters for it to no longer need to be filed in the patient records? Supposing that 95% of a letter concerns diagnosis and treatment, but 5% concerns a child protection concern, should that cause the letter to be removed from the medical records? To put it another way, at what point does a letter between Dr A and Dr B about a patient cease to be ‘clinical’ and become ‘non-clinical’ or ‘child protection’? I find it impossible to answer the question. So often there is a mixture of clinical and child protection concerns, and I have difficulty with the concept which seems to me to be implied here, namely that once there is any mention of the words child protection then a letter between doctors ceases to form part of a patient’s records and can be filed away elsewhere.”

Then we come to the paragraphs that I dealt with earlier in my opening over the page at paragraphs 75 and 76. I need not repeat them, but he effectively says it is particularly important that correspondence between clinicians that voices child protection should most assiduously be placed in the patient’s records.

In relation to third party correspondence, which is the matter set out in the second section of Appendix One relating to Child B, Professor David makes a similar point at paragraph 77, where he says:

“I have not analysed them in different categories as above, but my views about these documents are exactly the same as the items labelled ‘incoming correspondence’.

At paragraph 79 he puts out a possible counter argument where he says:

“I suppose a counter argument might be that all this correspondence flowed as a direct result of Professor Southall’s initial child protection concerns. I suppose the argument would be that once he had raised the concerns, all subsequent correspondence between doctors could be classed as relating to child protection issue. I mention this only to say that I do not agree with the logic.”

In relation to outgoing correspondence, which is the third section of Appendix One relating to Child D, we need to go to paragraph 103 at page 52. Professor David says:

“Outgoing correspondence

In my view these items are essentially covered by the above points. Most of these documents carefully spell out Professor Southall’s concerns that the patient was at risk. At the risk of repeating what has already been said above, in my view it was important that these concerns should be readily available to any member of staff who had reason to consult the child’s medical records, and consequently these documents should have been filed in the patient’s medical records.”

Madam, despite the fact that in Appendix One the documents relating to Child D are divided into three sections (namely incoming correspondence, original copies between third parties and outgoing correspondence) it will be easier if I take you to the SC file chronologically rather than divide it in that way and adding Professor David’s particular comments on any item as you go. In order, I first need to take you to the document at 3(a), which is the letter to Professor Warner dated 13 March 1995, which we see from Appendix One is at page 305.

MR MACFARLANE: Could you give us clearer references to which documents you are referring to?

MR TYSON: Yes. I am now taking you to C6, which is the SC file relating to Child D and taking you within that file, at the back, to page 305, which I hope you will find is a letter dated 13 March 1995 from Professor Southall to Professor Warner. By cross reference to Appendix One you may wish to write on that letter “3(a) Appendix One”, or just “3(a)”. As you see, on 3(a) under Child D ---

THE CHAIRMAN: Mr Tyson, did you say you were going to give us a separate file with these documents in them? Forgive me, you are suggesting we write something on these ones, but if we write it on these ones, will we then in practice be more likely to refer to the other copies that you are going to submit to us later?

MR COONAN: While my learned friend ponders on that, could I just add a comment of my own, I hope not to confuse. Although I can see from my learned friend’s point of view the attraction – in fact the attraction for all of us – of having a slimmed-down volume of, in effect, just the documents in Appendix One, I think it is terribly important that certainly for the present time, and maybe for some time, that the Panel sees the context in which these documents are being laid before you. If you are going to be given at a too early stage just the documents themselves which are in Appendix One, you may – I say no more than that – be highly misled because you will not have the context in which the correspondence is emerging. That is why I rise for the moment.

THE CHAIRMAN: I appreciate that point was made earlier by Mr Tyson. It is just a question of if we are adding notes and post-it notes and what-have-you to this file … I merely wanted to question whether that was going to be practical.

MR COONAN: I think we will have to struggle with that because there are so many documents.

THE CHAIRMAN: Thank you.

MR TYSON: It is a matter of presentation, madam. I am going to give you a crib sheet, if I can put it that way, at the end, but I was planning to open it in the way I was, broadly for the reasons my learned friend indicated, in order to put these things in context. So, I would ask you merely to write on these letters where they appear in relation to this particular charge. I hope you have now found out my system, that when I say “3(a)” you can see where 3(a) is on this Appendix One and hopefully you can see that when it says 3(a) in Appendix One relating to this child, it says “Letter to Prof. Warner 13 March 1995”, and in the SC file you may just want to put, in relation to this child, that the whole of this child’s SC file is in C6. That may well help your cross-references because then we know you only have to go to C6, provided I have got my pagination right in Appendix One (and any errors in Appendix One are mine and mine alone with regard to the pagination) and you should get there.

THE CHAIRMAN: That is helpful. Forgive me for just asking that. As you mentioned it I thought it was useful.

MR TYSON: I am going to make you work, I am afraid, a bit more before I give the crib to you.

To put this in context, as my learned friend rightly says it is only fair that I do, the child had been in the hospital at North Staffordshire in December 1994 and did not return there thereafter. I readily accept that all the items in Appendix One related to Child D are post- admission documents and I do not for a moment say that that makes any difference as to whether this important clinical correspondence should or should not be in the child’s North Staffordshire medical records. We say absolutely they should. This is all-important clinical correspondence between consultants to a broad degree.

THE CHAIRMAN: Mr Tyson, I am just wondering whether this actually might be a good time, if you are about to begin the details of it.

MR TYSON: Yes, I am reading the declaration and now I am going to turn to the documents.

THE CHAIRMAN: Would this be a good time to break rather than launching into the actual documentation?

MR TYSON: It would. I am sorry it is burdensome, but doing it all now makes the rest of the hearing so much easier. I make no apologies for opening for so long. It means the hearing is shorter.

THE CHAIRMAN: Thank you. It is just a few minutes before one. We will break till
2 o’clock now. Thank you.

(Luncheon Adjournment)

MR TYSON: I see everyone is full of anticipation about the next bit of my opening. Can I say that what my suggestion is going to be is that I will finish my opening, which will be another hour or so, and then if I might invite the Panel to read the reports of Professor David, together with an important document that emanates from Hempsons, which is their document which I will take you to, and then ask the Panel to read those and start afresh tomorrow morning with Professor David. That is going to be my ultimate suggestion.

Meanwhile, we are on Child D, and I was going to take you to the SC of Child D, which is at C6, and I was taking you to the first of the correspondence in chronological order, which is the document at page 305, which is a letter from Professor Southall, as he then was, to Professor Warner at Southampton, that reads:

“Dear John

Re: [Child D] …..

Following our telephone conversation last week, I am sending to you with this letter a detailed summary of [Child D’s] medical history. I have been through this trying to dissect out medical problems that have actually been seen to occur in [Child D] compared with those that have been reported by his mother. You will notice from this that there have been some rather worrying, real medical problems which don’t really look like anaphylactic shock. As far as I can see, the only manifestation of food allergy has been urticaria. There is no doubt that [Child D] has an allergic tendency with eczema, urticaria and sometimes wheezing. However, it is my own view that this is an example of factitious illness on top of an existing medical problem. The way that [Child D] is being brought up is going to, in my opinion result, in a very damaged emotional make-up for him. I would be very interested indeed in your attempts to wean him from some of his drugs, from his need for adrenalin and finally, from his need for such a restricted diet.

Thank you very much indeed for being willing to get involved in such a difficult case.”

This is what I anticipate Professor David would say is a classic piece of clinical correspondence. It is a referral from one consultant to another consultant. Sure enough, it mentions Professor Southall’s view that this is an example of factitious illness, but merely because, as it were, in that correspondence there is a possible diagnosis that relates to possibilities of child protection does not mean that this document can be not placed in the hospital medical records at the North Staffordshire Hospital in relation to this child.

The next letter in time is the letter 3(b), which is the letter at page 304, and again the Panel might wish to write “3(b)” on that, and it is a further letter to Professor Warner of 24 April 95 which says:

“Re: [Child D]

Following our recent telephone discussion I enclose a summary of [Child D’s] illnesses. I have spoken to Professor Strobel and he is in full agreement with you assessing [Child D] in your Unit. I have also spoken to [Child D’s] mother who is also in full agreement.”

That is clearly again a clinical letter, we would submit. Professor Strobel, as you can see from his full title in the copy at the bottom, is the Consultant Paediatric Immunologist at Great Ormond Street. He was having dealings with this child before being admitted to Professor Southall’s unit in May 94, and was dealing with this child for about three or four years before the end of 94, dealing, as I said when I was opening the other part of this case, he was dealing with sensitive food testing, food challenges on Child D.

You will see reference in letter 304 to a summary of the illnesses, and I need not necessarily take you to it, but that summary is actually in C2 at section 4(i), and it is a document which you just need to know is there, but it is not one of my SC file allegations.

The next document in time is the one that we see at 1(a), which is 14 May 95, which we see at 281. So again, were you to write “1(a)” on that letter it might be helpful. You will see this is the response from Professor Warner back to Professor Southall:

“Re: [Child D]

Thank you for your letter. I would of course be very happy to sort out further investigations on [the child] as we have discussed. However, I would first like to have an outline of how this referral has been presented to the family. I assume at your case discussion that criteria were laid down for the organization of our investigations.

It is important for me to know for instance whether it will be possible for us to do any of the challenges without the mother actually being present. Furthermore the assessment will need to include a full psycho-social input. I would intend to admit him to our Bursledon Unit [where] he would stay during the week with week-end leave.”

Again, a classic clinical letter, we would say, but not in the notes.

Then we come to the letter at 1(b), which you will find a few pages back at page 279. This is a letter from Professor Strobel at Great Ormond Street to Professor Southall, and the manuscript there may or may not be of use because, as it were, if – and I make no positive assertions at this stage – if that manuscript is Professor Southall’s manuscript, then we have a direct reference to, as it were, matters being in the SC file rather than in the hospital medical records. We see it is a letter from the Great Ormond Street Professor saying:

“Thank you very much indeed for your very careful summary of [Child D’s] illness. Looking at your careful summary there are several things (as you have pointed out) which do not quite add up although I have no doubt that [Child D] is atopic and food allergic in general. This obviously does not preclude the suspicion of an exaggerated or even fabricated illness. With your permission I would just like to comment on your last page referring to our discussion on the 15th December. I just wonder whether the wording is too strong. In my opinion I thought this could be an example of an exaggerated/fabricated illness.

I am grateful that John Warner has offered to review [his] ….. history”.

Again, classic clinical correspondence, we would say.

The next in time is a letter at 277. This is the letter at 3©. It is a letter from Professor Southall to the Social Services Manager, with, if you look over the page, copies to all the clinicians that have been involved in Child D’s case to date. This letter indicates that:

“You may remember that we held a multi agency strategy meeting to discuss [Child D’s] case earlier this year. As a result I was given the task of trying to arrange for [Child D] to be admitted to the expert unit of Professor ….. Warner in Southampton. As part of arranging this I obtained consent from Professor Strobel and Dr Connell. I then wrote to Professor Warner enclosing a summary of my analysis of the notes which I include with this letter.

Professor Warner replied on the 14 May with the enclosed letter requesting that in essence the child would be admitted to his unit only if the mother agreed that she would leave him therefore the week and return at weekends to collect him. This would allow unimpeded challenges to be undertaken and also permit [Child D] to participate in normal schooling.

Having reached this point I then contacted [Mrs D] who raised initial objections that [Child D] would find this very difficult to accept having spent most [of] his life very closely attached to her including, as you know, sleeping with her at night and having her in attendance when he is at school.

I then spoke to Professor Strobel about this and we both agreed that perhaps it would be reasonable for the first few days of the first week that [Mrs D] remain with [Child D] and then gradually that he was weaned from her to remain on his own in the Basildon Unit.

Despite this [Mrs D] has now categorically refused to allow [Child D] to be left on his own in the unit to allow Professor Warner to undertake his investigations. I think we are now therefore in the position of having no choice but to convene a child protection conference at which these issues are put to the mother. I would very much value ….. [your] opinion on the best way of organising this. I have spoken to Dr Connell about my concerns and this letter will inform Professor Strobel and Professor Warner of our dilemma. I have also copied this to the GP [as] he needs to know what is going on.”

Perhaps that last sentence says it all, which is important clinical information is being passed here and important that the GP knows it and thus he has been copied in to know what is going on.

Can I take you, please, to where Professor David has a particular comment on this letter, which we see at C3 at 7(b), paragraph 105, where Professor David says:

“The letter to Mr Banks, Social Services Manager [dated 22 June 1995 …..] was essentially a paediatrician reporting concerns to social services. It was important that this information was available to others involved in the care of the child, or potentially involved in the future care of the child, and this letter should have been filed [with] the child’s hospital medical records.”

Then we get to the next letter in terms of page 276 – we are going backwards through this file - and this is another original that should have been in the medical files, and this is 1©. Again, I draw reference to the manuscript at the top right hand of this, and it is a letter from the GP to Professor Southall dated 29 June. It says:

Thank you very much for your correspondence about [Child D], I do appreciate being informed …..

Out of interest I saw [Mrs D] last night and her version to me was that [Child D] was going to be admitted for 2 weeks and that she was not going to be allowed to see him throughout that time and that he was going to be placed on a unit where there was little or no cover. She was therefore refusing to allow ….. his admission.”

The next letter is two pages back at 275, as opposed to 275a, and this letter is 1(d), and it is a letter from the Southampton Professor to Professor Southall:

“Re: [Child D] …..

I am sorry to put a burden back on you in relation to [Child D]. I have discussed him with my colleagues. [I] feel that the ground rules for admitting him must be clearly established before we go through the investigations. Without this we will get dragged into the quagmire ….. I would have thought that his mother’s rejection of such an approach could be considered as further evidence in relation to formulating an understanding of [Child D’s] problems. It is also worthwhile pointing out to his mother that it is only by truly objective assessments by totally impartial and independent third parties that her very important observations about [Child D’s] severe allergies can be supported and then appropriately treated.”

Then going back in this file to page 273---

MR COONAN: Could you read the last sentence?

MR TYSON: Certainly.

“I look forward to hearing the outcome of the Case Conference.”

Then we go back in this file to 273, and this letter is at 2(a), i.e. it is one of category 2, as you are familiar now, which is “Original copies of letters between third parties”, so these would be the letters in which Professor Southall would be copied in, as you see he was at 274.
This is a letter from Professor Strobel to the GP indicating that he had reviewed Child D again, who was attended by his parents:

“he looked very well, was active and his eczema for his standards was reasonably well controlled”.

He goes on to provide a lot of other clinical information about this child. In the second paragraph he says,

“I am sure you are aware that our food introduction programme under Professor Warner’s supervision…has been rejected by the mother because of the modalities. That is, she was not prepared to leave Child D in the hospital without her presence. In order to gain some more headway I would suggest for the time being the following procedure. Child D is going to be admitted under the Dermatologist Dr Atherton for occlusion treatment of his eczema”.

Pausing there, madam, there was a suggestion that the child be admitted to Great Ormond Street which is where the dermatologist was. He continues,

“I have suggested to use this period for food introduction after our supervision with experienced nurses and dieticians at hand. I know that this is not the optimal way but the mother agreed to leave him alone during the day while we perform our challenges”.

Again, we would say, that is important clinical information about the child and offering a compromise as to how to move forward. There is then a gap of about one year – we see this is September 1995. We go to page 265. This letter is at 3d and is outgoing correspondence. It is a letter to the local authority from Dr Southall about Child D. He says,

“I just wanted to ask if there was any progress with respect to Social Services involvement with this child. As you know I have major concerns about his highly restricted diet and other activities concerning his care”.

That is at 3d. Professor David, at paragraph 105 – I need not take you to it again, but in relation to all correspondence we have seen either to or from the local authority with all the clinicians copied in, he makes a point that it is important that this information was available to others involved in the care of the child, or potentially involved in the care of the child, and this letter should have been filed in the child’s hospital medical records. He goes on in paragraph 105 to make specific reference to this letter.

Then we get to the letter at 2b, which is at page 264. This is a letter from Professor Strobel to the GP, with a copy as we see to Professor Warner and Professor Southall. This is the letter at 2b. it is a letter from professor Strobel to the GP about Child D:

“I reviewed Child D with regard to his recent poor health. You will be aware that he had 2 anaphylactoid reactions recently which needed hospital admissions and Adrenalin either via a medihaler and/or intramuscular injection. The first trigger might have been a raspberry ice cream which he had when the parents were visiting Legoland, the trigger for the second reaction had not been identified. He also seemed to be relatively poorly and complained frequently about something in his throat. Occasionally these feelings subside on inhalation of the medihaler Epinephrine.

On examination today I found him relatively well. He did have a sore throat and a minor fluid collection behind his right ear drum otherwise there were no other signs of minor infections. I wonder whether these intercurrent minor infections might well have changed his general well being and discussed with the parents that this may well have been the underlying pathology. It seems that Phenergan administration is helpful under these conditions and I have suggested a 7-day course of 0.6ml Phenergan once a day. We will shortly be admitting him for food challenge to our ward. In view of his atopic state and pronounced asthma I would ask you whether you would be so kind as to immunise him against Influenza according to the CMO’s instruction. It would be appropriate for him to have an inactivated or a split virus vaccine”.

I read that letter in full for a reason. This letter is analysed at some length, I anticipate, by Professor David in his report. Unfortunately I have got all the references muddled up. That is 2b in the Appendix. It is an important clinical letter giving important clinical information. I need to take you back to the letter at 2a, which is at page 273. This is the letter where effectively Professor Strobel is offering to admit the child at Great Ormond Street because of the modalities, as he put it, of the child going to Southampton under Professor Warner. Professor David’s point is that this is a letter, as are all the others, which contained important clinical information which should have been in the child’s hospital medical records. He sets out his reasons, based on this letter, which are generic to all of them why he cannot understand and does not accept Professor Southall’s defence to all this saying that these are all child protection matters and therefore should not be in the hospital medical records.

I need to take you, please, to Professor David’s report in Appendix One, which is at C3, Section 7(b) at paragraph 80, page 32 of the report. This is Professor David’s comment where he took this letter as an example of the point he was trying to illustrate as to why it contains important clinical matters, and you might like to note down that this was re letter 2a. He says,

“Rather than attempting to categorise each item as with the previous subheading, let us take (just as an example) the letter dated 5 September 1995 from Professor Strobel to the GP . What I have set out below is a list of the components of this letter.

Child D seen by Strobel, along with his parents, at GOS on 5.9.;95.
Child D looked well, and was active.
Child D’s eczema for his standards was reasonably well controlled.
Child D had only minor reactions on his face and elbows.
Child D’s eczema on his ankles and knees was quite marked and excoriated.
Child D’s weight was [that given] and height [that given].
Mother reported a 10-day episode when Child D refused to eat following an infection.
According to mother child D lost 8lbs during this period…
On avoiding rice it seemed that his puffiness was reduced.
Today, Child D’s appearance was much less swollen than when Strobel had seen him before.
Child D did have one episode of shivering possibly after extensive sweating and occasional pains in his hip and knees which prevented him walking for long periods.
Food introduc5tion programme under Warner’s supervision in Southampton rejected by mother because of the modalities.
Mother was not prepared to leave Child D in the hospital without her presence.
To gain some more headway, Strobel suggested alternative procedure.
Child D to be admitted under Dermatologist Dr Atherton for occlusion treatment of his eczema.
Use this period for food introduction after supervision and with experienced nurses and dieticians at hand.
Strobel knows this was not the optimal way but mother agreed to leave him alone during the day while challenges performed…
Strobel wished to thank all of you for your efforts and hoped that in the end we will come to the bottom of his problems and maternal and child interactions.
Please let me know about your thoughts.
Copied to Warner Southall and Atherton

The letter from Hempsons dated 24 January 2006” –

That is the letter at C2, 6© –

“says this letter related to child protection issues, and that accordingly it was denied that it was obligatory for this document to be filed in the medical records.

I have real difficulty understanding how one could reasonably categorise the ingredients of this letter as relating to child protection issues.

I have tried hard to comprehend this assertion. As I see it, the child protection concerns had been in a major part that the reported food allergies were not genuine or were seriously exaggerated or distorted, that the child’s dietary elimination was not necessary and that other alleged interventions (such as using a wheelchair) were unnecessary and therefore harmful. Clearly the doctors looking after the patient wondered about the extent to which the allergies were genuine, a common worry in the management of such patients, and there was general agreement amongst the professionals that the way to establish the true position was to admit the child and perform food challenges. The mother (as is so often the case in this type of patient) was worried about leaving her son for prolonged periods in a unit in Southampton with which she was unfamiliar, and so Strobel suggested an alternative plan whereby the child could be admitted to Great Ormond Street, a more familiar environment, so that his eczema could be improved and so that some food challenges could be performed, in other words, achieve much the same end (but with the added benefit of dermatology input) as had been intended in Southampton.

As I look at this letter, which describes eczema, growth, a 10-day period of being unwell accompanied by weight loss and skin improvement, mother’s unwillingness to have child D admitted to Southampton for food challenges addressed by a similar plan of action at Great Ormond Street, and finally soliciting the views of the recipients of the letter, it is hard to see how one could reasonably label the contents as being related to child protection issues.

In trying to seek an alternative perspective, I did wonder if the argument is that because Southall had child protection concerns, that he therefore regarded the case as a child protection matter pure and simple. I suppose the argument would then have to be that the eczema, the intercurrent illness and so on were no longer of any relevance. If by any chance that is the position, then I would not be comfortable about it. It seems to me that the correct perspective is to look at the matter from the point of view of the child. He had eczema, he had suspected food allergies, avoiding certain foods seemed to be associated with improvement, and his height and weight were recorded. There were plans to admit him to hospital to further treat his eczema and to perform some food challenges. These are all medical health-related issues. Information about them properly belongs in the child’s hospital medical records. It seems to me that the fact that there were child protection concerns cannot and does not negate the fact that these were all medical health-related issues”.

Going on with the chronological jaunt through this SC file, I now need to take you to pages 262 and 263. This is letter 1e, and this is a letter which, in paragraph 105 of his report, Professor David says is a clinical letter, notwithstanding it emanates from the local authority. It is a letter to Dr Southall relating to this child,

“I am responding to your letter to martin Banks of October 12 as D’s care manager/social worker. I meet with D’s mother every three weeks and D is usually present at every second session. There is regular liaison with the Great Ormond Street Hospital social worker; less frequently with D’s school. All report no particular concerns beyond the management of D’s condition; his performance at school is good and he mixes well with the other pupils and has made friends; and his visits to hospital have generally been a success with staff feeling they are able to work effectively with D and his mother.

D has had several admissions over the last year due to adverse reactions to a variety of substances. There has been no indication that these have happened due to the actions of Mrs D. Indeed on one occasion D has acknowledged taking a decision to consume a food substance which was untested.

My involvement and that of the hospital’s is focused on enabling D to develop greater independence and ownership of his condition and his responses to it. Allied with this is preparing Mrs D for this development. D has been referred to a psychologist in…to look at strategies to enable him to be confident in playing on his own outside of adult supervision and to be able to control his response to breath difficulties etc if he goes into various stages of shock. Hopefully it will enable D in time to carry his own medication and administer it when necessary.

Mrs D is very supportive of this approach to make D more independent. She fully acknowledges she finds the idea of relinquishing control difficult. The implementation of these strategies and Mrs D’s response will be monitored on an ongoing basis by myself and the psychologist.

To summarise, it is my opinion that all appropriate steps to support D and reduce the risk to him are being taken and the situation continues to be monitored”.

We see a manuscript note at the end there, “No good”, and I will be putting to Professor Southall that that is his manuscript, but I am not asserting that that is a fact at the moment. That was a letter at 1e, particularly referred to at paragraph 105 of Professor David’s report of this matter, as being correspondence that should be in the hospital records and was not.

The next letter is at page 229, and that is the letter at 1f. It is a letter from the consultant paediatrician, Dr Whiting, to Professor Southall about the child D, saying,

“This is the chronology I have prepared about Child D to date. I would appreciate any comments at this stage. It is in a process of trying to set up a professionals meeting”.

Then we see the manuscript saying, “To SC file”. Again, I make no positive averments at this stage, but I shall suggest to Professor Southall that it is his manuscript note. We pick up the chronology there referred to at 231. That is a wrong chronology setting out medical matters on each and every page. We say that you can read it just by flipping through it. It may be, it may be not, that the manuscript thereon is Dr Southall’s. Again, I make no positive assertions at this stage about that.

I pick it up at 241. We see that there is a record in December 1996 which is about the time of this letter of Mrs D and young D being seen by herself, Dr Whiting, and the community children’s nurse, and reporting medical matters in relation to that. Over the page, we can see further medical matters relating to his current treatment and history, and over the page at 243 and 244.

The issue arises as to whether that covering letter that we have at both 229 and the 14 page chronology at (i)(g) are medical records. This is a subject that Professor David himself dealt with in particular. In his report at C3, (7)(b) paragraph 107, at page 54, he deals with the matter.

It may or may not be helpful when you reach paragraph 107 just to write beside it that this is (i)(f) and (i)(g) of Appendix One relating to Child D that he is referring to.

There is a discussion which I need not burden you with at the moment but that may well be examined when Professor David gives evidence. Can I pick it up at 112 where Professor David is asking himself, as it were, the exact question as to whether the letter, the chronology, should be considered to be medical records?

“….or were these items rather like case conference minutes for which storage in a location separate from the hospital medical records would be quite acceptable?”

He says:

“Certainly, this is not straightforward clinical correspondence, for example reporting on the clinical condition of a patient. The very brief covering letter indicates that Dr Whiting was preparing for a professionals meeting, and in the context of this case there can be no doubt that this was part of a child protection process….”

Professor David points to other letters in the SC bundle indicating the child protection concerns.

I can pick it up at 115 on page 56 in Professor David’s report.

“Clearly the letter and chronology were not non-medical purely legal documents like case conference minutes or letters from the local authority …..

In fact, the content of the chronology almost entirely concerned medical matters. It was sent from one concerned paediatrician to another concerned paediatrician, the sender seeking the comments of the recipient. In my view, the content and purpose places the chronology (and accordingly its covering letter) into the category of medical records.”

Copies of the letter should have been filed in the child’s medical records, he says.

The next letter in time I need to take you to is 215 in C6, the SC file relating to this child.

THE CHAIRMAN: Dr Sarkar has a question.

DR SARKAR: Is there any particular reason why the chronology is filed twice in this respect?

MR TYSON: It is field twice. Professor David deals with this matter. I can go into the details if I need to but it is a matter covered in Professor David’s report, one being a faxed copy of the other.

Going back to Professor David’s report, we can see that he deals the issue as to there being two copies of this matter at 109 and 110, page 54 (C3, 7(b), page 54). From 108 to 110, and thereafter there is an extensive discussion as to why there were two copies of the letter in there, and Professor David’s analysis of the situation, which I was not actually going to burden you with in my opening, but I could if you want me to. I appreciate the panel’s attentiveness and that they have noted that there are some duplicates within this bundle.

I took you back at C6, which is the SC file relating to this child, at page 215. This is the letter at (iii)(e); i.e. outgoing correspondence. It is a letter between two consultants related to Child D and thanking Dr Whiting for the chronology and seeking attendance at it.

Professor David deals with this matter at his paragraph 105 and says that it is a letter that should have been in the child’s medical notes.

The next letter in time is at 216 and 217. This is the letter at (iii)(f) where Professor Southall takes up the cudgels again on behalf of this child and says that he is extremely unhappy with the situation with respect to it and he thinks that

“….more action should be taken to protect him from what I consider to be the harmful fabrications of his mother. I have now also read through a chronology concerning particularly [Child D’s] recent history (completed by Dr Whiting) and once again I am extremely concerned that his mother is grossly exaggerating his symptoms.”

He goes on to deal with various matters arising out of the chronology and urges that there should be a case conference.

Again, Professor David at paragraph 105 of his report at 7(b) indicates that this is clinical correspondence and it contained important information about this child.

The next letter in time is at page 214, which is the original copy of the third-party letter. This is a letter to Professor Strobel from Dr Whiting. You see at 214a, Professor Southall is copied in to this letter. This is a letter as at (ii)© indicating that there was sharing of a lot of concerns about Child D and his management and acknowledging that Professor Strobel had agreed to set up a multi-agency professionals meeting at Great Ormond Street, and Dr Whiting’s view that that should be without the parents at first instance.

The penultimate paragraph on that page:

“I am very keen to work with you and all the other professionals involved towards an agreed plan for [Child D’s] management, which covers all the angles, including the child protection ones.”

We now go back to pages 208/209. This is letter 2(d). This is a letter from Professor Strobel to Dr Whiting with all the medical professionals involved in the case listed as recipients of this letter at page 209. It is Professor Strobel’s recording of the results of the clinicians meeting which was held at Great Ormond Street Hospital, and sets out the aspects that were agreed, mainly clinical matters.

“Every profession agreed that it would be most appropriate to work with the mother and parents to find out about the extent of [Child D’s] existing allergies.

Having reviewed the chronology…. it was felt that false reporting of the severity of [the child’s] symptoms …. remains a distinct possibility and needs to be ruled out or confirmed.”

At the fourth bullet point:

“There was no doubt expressed that [the child] is an atopic boy who may suffer from occasional local and/or moderate systemic reactions …. It was noted however that there were occasionally discrepancies …..”

At the next bullet point:

“In view of this background it was suggested that clarity about [the child’s] overall clinical condition…. gained during an assessment on neutral medical grounds…..”

And the like, and at the penultimate bullet point:

“Failing appropriate collaboration on the parental side during this medical assessment one would need to consider other measures if this working in partnership could not be achieved.

“At that stage….. a case conference….”

So that is March 1997 and that is at 2(d). Professor David comments in particular on this letter at paragraph 106. I am not taking you to Professor David’s report of this letter, but that is 2(d). That is March 1997.

Then we have 2(e). This is June 1997 and there we need to go to page 75. This is a letter from Dr Whiting to Professor Warner asking, effectively, Professor Warner to proceed with arranging in-patient assessment of Child D during the forthcoming summer holidays to undertake the appropriate food challenges, paediatric and psycho-social assessment. One sees that copies of that are sent, including Professor Southall, and that is 2(e).

The next letter in time is at page 196 and this is a letter (which is 3(g)) from Professor Southall to the local authority coordinator dealing with the matter, with copies to all the people involved from Professor Southall, indicating that he had heard there were some problems with regard to D’s admission to Southampton General Hospital for his alleged life-threatening allergic problems and indicating, half-way down:

“My understanding from Dr Whiting is that the mother is making all sorts of objections to the plan that we have agreed between us and I feel strongly that if she will not concede to [Child D] being admitted to Professor Warner’s unit that a case conference should go ahead …”.

This is a letter that Professor David says in paragraph 105 of his report is clinical correspondence notwithstanding that it is addressed to a member of social services. One only has to look at who the copies are made to.

Then if one goes to page 185 and 186, this is letter 3(h). I d not know if yours has a blank page in between the two pages. It is a letter from Professor Southall to the local authority relating to this child, saying:

“I am sorry that you feel unable as yet to proceed with a child protection conference …”,

and setting out the clinical reasons why Professor Southall believed there should be one.

“1. I consider [Child D] to be at significant risk of suffering harm as a result of his mother’s actions. These relate to the fact that he is being given a very powerful drug adrenaline without, in my opinion, adequate evidence that he suffers form anaphylactic reactions.”

Professor Southall sets out in paragraphs 2 and 3, 4 and 5, various other clinical matters as to why he believed that further action was required. Again, Professor David says that that document should be in the medical clinical records.

I then need to take you to page 76 to 77. This letter is 2(f), a letter from Professor Warner in Southampton to the GP, with copies to all the other consultants who we are now familiar have been involved in this case, saying that he had arranged to see Mrs D and Mr D to discuss issues relating to D’s potential assessment at Southampton. He says there was a consultation that ranged far and wide over the needs for the assessment and having discussed the matter he ends up over the page, at page 77, saying:

“Obviously the issues about whether he comes down to Southampton or not are now totally out of my hands.”

So he has given the mother the various indications of what the child should expect were he to come to Southampton.

I pick up the story further at page 70. This is an important letter (2(g)) because it shows that eventually the child did attend at Southampton and the various tests were carried out. Professor Warner was able to make the diagnoses there recorded on page 70 in relation to this child, namely extensive and severe allergies and asthma and episodes of acute angio oedema, urticaria and anaphylaxis. He indicates in the main paragraph?

“Further to my report of the 24th June 1997”,

and that is 2(f) to which I have taken you,

“I have now seen [Child D] and both his parents for an outpatient attendance to our Day Ward”,

and he sets out the various tests that were carried out and in the middle of page 71 setting out the various allergy prick skin tests and indicating at the bottom of page 71:

“On the present evidence I have no doubt that [Child D] has extremely severe allergic problems. However, I also believe that it should be possible to achieve better control of his problems with an appropriate strategy. Mr and Mrs D are now, I think, rather more confident in my team …”.

This is a very important clinical letter relating to this child, with a diagnosis from a professor at the University Hospital to which he had been referred by Professor Southall, and should absolutely obligatorily have been in the hospital medical records. This letter, in particular, is a letter which Professor David mentions in his second report at C3, 7(b), page 32, paragraph 78. At paragraph 78 he is talking about third party correspondence:

“Some of these items, for example the report from Warner dated 16 September 1997 … is pure clinical information and opinion. There is no mention of child protection other than the fact that the first named recipient of the letter was a child protection co-ordinator for … Social Services. One might say something similar about the letter from Dr Whiting to Professor Warner; the words ‘child protection’ do not appear.”

It is in connection with paragraph 78 that I would just ask you to turn back the page to paragraph 75, which is a passage which I keep referring the Panel back to, that it is particularly important that correspondence between clinicians of this kind should be in the hospital medical notes. Professor David is making the additional point in relation to this, that in fact it is an important clinical letter irrespective of whether there are child protection matters, and in fact there is hardly any mention of child protection matters in it in any event.

To nearly complete this matter, can I take you to page 41? This is a letter from a consultant psychiatrist Dr Macauley to Professor Southall. This is letter 1(h) and he is enclosing an account by a Caroline Fynn in that letter, and the Caroline Fynn letter is at page 48 to 50.
So page 48-50 is part of 1(h), and 48-50 is an account by one staff nurse dealing with her contact with Mrs D and making medical and other observations on Mrs D. I need not take you to the letter in particular, but again Professor David said that the covering letter at page 41 and the actual letter from the nurse at page 48-50 are items, 1(h), and are clinical medical records which should have been in the hospital files.

If I can take you now to page 30, this letter is 1(i), and it is a letter from Professor Warner to Dr Southall about Child D.

“Thank you for your letter …..

[Child D] certainly has acute severe allergy. If he is exposed to any of the food allergens it may well be necessary for him to receive adrenaline, either inhaled or injected. As the former has just been withdrawn from the British Pharmaceutical market we are only left with subcutaneous adrenaline. Obviously, however, one would hope and expect that it would be a rare event for [Child D] to have any inadvertent exposures.

With regard to being cared for in a wheelchair, as far as I am aware, this is neither necessary nor actually happening.”

Again, I draw your attention to the manuscript on this document, which appears to say, “Can I have [Child D’s] hospital [and] S/C file ASAP”. Again, we would say that is an important original clinical document which should be in the child’s medical records.

Can I go further back, please, to page 25-27, which is 2(h), and is a follow up to the earlier September letter from Professor Warner. The September letter from Professor Warner we have seen, and obviously the diagnosis remains the same, and over the page, that second paragraph:

“I have now agreed with [the] parents that we should arrange [for] a 36 hour admission”.

Again, an important clinical record, we would say.

Can I take you to page 21. This letter is 1(g), a letter of 18 December 1997 from the Professor at Great Ormond Street to Professor Southall, dealing with the Dr Macaulay letter, which I have taken you through, and setting out that Professor’s medical dreams, as he puts it in the penultimate paragraph:

“…is that [Mrs D’s] problems could be managed by continuing involvement of a limited number of professionals including mainly the GP, a Paediatrician and Consultant Psychiatrist. I am aware that this may remain a dream but I have no other bright ideas at this moment.”

That letter, as I say, is at 1(g).

At pages 16 and 17 there is a further follow up of this child at Southampton. Again, there is a diagnosis, there is in addition to the diagnosis of hyperimmunoglobulin E syndrome, as well as acute severe food allergies, asthma and eczema, and reporting progress by May 1998:

“We have been very slowly and painstakingly working through a programme of double blind challenges on [Child D] to establish where dietary exclusions can be relaxed and where there is a need for them to be maintained.”

A few lines further down:

“Both [Child D] and his parents are very happy to follow through with this procedure.”

It sets out about corn challenges, lactose challenges, soy challenges, and the like. Then it sort of issues a health warning on page 17, last paragraph:

“I should emphasise that [Child D] and his parents are very happy with the current approaches to investigation and treatment. There is no question about any issues related to his current clinical state and management. However there appear to be continuing exchanges of correspondence between various individuals who have been involved with his management in the past, copies of which his parents have. This obviously is having a major undermining effect and maintaining an acrimony which I feel ought now to be resolved. I have said to his parents I would prefer to draw a line under all events that have occurred in the past. I feel I am now very confident and happy that his diagnosis and management are entirely appropriate. We are following through a plan of investigation which has been agreed by all.”

This is a long saga, Madam Chairman, but it might be you can see the concerns of Professor Southall at the beginning had eventually been, one would hope, laid at some degree of rest.

Taking you to page 9, this is 2(j), again it is another letter from Professor Warner to the GP, including all the professionals who had been involved, setting out further challenges which have been made in respect of a double blind soy challenge and the like, and things are improving, and these further challenges are going to be over the next six months for lactose, exercise, beef, wheat and rye. That letter is at 2(j).

Then we have the letter at page 2, this letter is at 2(k), and it is dated 10 November 1998, and again it is a letter form Professor Warner to the GP, again dealing with clinical matters relating to this child over lactose challenges, problems (over the page) with the eczema, good control over the asthma, and the reports about the exercise challenge and the like, and pointing out, at the last four lines:

“…as I have indicated in previous letters there is exceedingly strong evidence to indicate that he is indeed exquisitely sensitive to some foods of which peanuts, tree nuts, fish and shell fish standout.”

All this correspondence, Madam Chairman, in there we say should have been in Child D’s clinical notes, his hospital notes. None of it was and all of it should have been.

There remains one last matter relating to this child, which is item 4, at page 313 in C6. This is a document which we are going to come across in the future as well as now. It is an original medical record. One can see it is also a computer record, and we will be coming back to it when we are dealing also with Appendix 2, but it is a computer record that is here with the SC file, and we can see at the top left hand corner what Child D’s SC number is, which is 3874. It is on a computer, a printout is in his SC file, but it is not in the patient’s hospital medical records, despite the fact that on its face it refers for this patient to the diagnosis of multiple allergies and low body temperature, and it gives clinical information about the child’s weight, height, age and the like, and why he was admitted to the hospital. Again, this is a medical record not in the child’s medical records.

When I come to deal with head of charge 15 and 16, as with Child A, madam, here in Child D there are matters of accessibility of the SC file which, as I indicated in relation to the previous child, there is further ongoing dialogue between my learned friend and I as to whether that aspect of the accessibility of the SC file to the mother is a matter that should be developed further.

Madam, I now come, putting away this file, to Child H.

THE CHAIRMAN: Mr Tyson, when you have dealt with Child H, does that conclude what you wish to do this afternoon, or should we be taking a break?

MR TYSON: I had not realised what the time was.

THE CHAIRMAN: We have been going for an hour and a half.

MR TYSON: Can I tell you, I need to deal with Child H, who I can deal with much shorter than I could with the previous child, who was the lengthy one, and then I need to come to the computer matters. This would be a convenient time, madam.

THE CHAIRMAN: Perhaps we should take a break then. We will take a fifteen minute break now until about quarter-to. Thank you,

(¬¬¬¬¬¬The Panel adjourned for a short time)

MR TYSON: I turn now to Child H. As you see in Appendix One relating to this child, there are some seven items. Before one gets to this child in detail, one needs to have open Bundles C2 and C7. C7 is the dauntingly large special case file in relation to this patient kept by Professor Southall. Before one goes into it, can I, as a matter of mechanics, ask you to turn to (j) in C2? There you will see a letter dated 30 March 1990. This is one of the earlier tabs. You should find there a letter from Great Ormond Street Hospital. Can I ask that you put another letter in that tab, a letter dated 16 March? (Document handed)

I have already dealt with Child H. This is the child that Dr Southall, when at the Brompton, wrote a letter, a rather unflattering letter about the parents with a copy to an unnamed paediatrician at the Royal Gwent Hospital. Those are charges 7 to 9 and I need not go through those again. As in other cases, this child has a parallel file maintained by Professor Southall. The SC file is SC2026, and we can see that in Appendix One.

You may recall that the child came into the Royal Brompton on two occasions, one in September 1989 and the second time in March 1990. This was for overnight monitoring. You will recall that Mrs H thought she was going there to obtain a special device which she felt she needed to assist in home monitoring for her child. There was a telephonic falling out, it would appear, between Dr Southall and Mrs H which led to the letter the subject matter of heads of charge 7, which is the letter at (i) under C2. I need take you to that letter.

At this time Mrs H had been told by Dr Dinwhiddie of Great Ormond Street that her child was suffering from something called “Ondine’s curse”. This is the letter that I ask you to put in at C2 under (j). This was a letter which the consultant paediatrician at Great Ormond Street had given her,

“To whom it may concern, this letter is to confirm that child H attends this hospital and he suffers from Ondine’s curse (irregular breathing pattern) weakness of the breathing tubes and asthma. He also has a tracheostomy breathing tube inserted in the windpipe to help with his chest problems. He will certainly benefit from an ultrasonic nebuliser for his treatment”.

Not unnaturally, Mrs H was of the view throughout, having had that letter from the child’s consultant at Great Ormond Street that, (a) the child’s problems were real and had an organic cause, and (b), that the child needed the triggered ventilator which was what she was pursuing through Great Ormond Street via Dr Dinwhiddie.

That is the background. I now come to the SC file and would ask you to look first at the first item here in relation to this child, which is at pages 25 to 31. I am going to take you to the document, then I am going to take you to what Professor Southall says about it, and then I will take you to what Professor David says about it. In order to do that we need to have in front of us C7, C2 at section 6, which is the Southall response letter, if I can put it that way, and Professor David’s report. It may assist the Panel if you look at C2, 6©, on the blank section under the word, “Hempsons”, 24 January 2006. This is the letter of that date to which Professor David makes lots of comments. It is the letter from pages 8 to 19 which sets out Professor Southall’s case in relation to SC files, in particular some of the items in this file. So you need to have on one side C2 at Tab 6, and C3 at Tab 7(b), paragraph 136, page 64.

If we look at the SC file, C7 at page 25, we see that this is a document headed with Dr Southall’s name,

“Form to be used for collection of clinical data on all cases (with or without Down’s syndrome) who are referred for assessment and management of possible airway obstruction problems.

To be used as an addition to not a replacement for) the form which is used for basic data collection on all clinical cases”.

You see the name of the child there mentioned and the date of the recording of the special case number. We go over the page where you can see it asks a lot of questions about the child’s health; for instance, on page 27, how does he sleep during the day on most days, or the like, and page 28, in the middle,

“Over the past month have you seen him/her wake up with a startle or gasp”.

That word there is tracheostomy. On page 29, in the middle,

“Over the last week have you noticed him/her snoring or breathing loudly in sleep?”

The answer was, “if tracheostomy blocked”. Then,

“When well does he/she sweat when asleep?”

There is a whole series of, we would say, going up to page 31, clinical questions about the child, the original of this document not being in the medical records of this child whilst the child was at Brompton Hospital.

If one looks at what Hempsons say about the matter, this is at C2, 6© page 19, in the third box down, it says: “Infant Data form. No date”. This is what is said on Professor Southall’s behalf in relation to this document that we have just looked at.

“A doctor or nurse completed this form. Again, it was data specifically related to the investigations that were being undertaken and was in addition to data to be included in the main hospital file.”

Speaking for myself, I do not think that makes any sense, but it is clearly medical data relating to this child – original documents, not elsewhere in the hospital medical records.

Professor David deals with this document at page 64 of his report at paragraph 136 (C3 (7) page 64) where he says, picking it up at paragraph 139:

“The form indicated that it was to be used in addition to, and not a replacement for, the form which is used ‘for basic data collection on all clinical cases’.

This is a form for making a detailed record of the history. It appears to be designed so as to ensure that a large number of standard questions were put to parents, questions that might well have not been included within a standard routine admission history taking process.

No doubt this data as obtained so as to help interpret the results of monitoring, but I do not think that the ‘x-ray request form’ analogy can apply here because the information recorded is likely to be well in excess of that routinely recorded in the medical records. These sheets can only be classified as medical records, and copies should be filed in the patient’s hospital records.”

The next item you will see is on page 20. In our submission, this is one of the most astonishing documents not to be in the child’s medical/clinical records. It is a note of taken by MS, as we see at the bottom, and that is Dr Samuels. It is a clinical note relating to this child. For reasons which I need not go into at the moment, the most likely date is 16 March 1990, which is about the last day when the mother and child were in Brompton Hospital. This is shortly before the letter that caused concern (heads of charge 7 to 9). This is a clear clinical note taken by Dr Samuels during the March admission of this child. It refers, as you can see, to previous treatments. It refers to the tracheostomy; it refers to cyanotic episodes; it refers to what is described as the parental view:

“ trachea ‘needed’,
see ventilation as being answer,
consider [Child H] neurologically normal, but has obvious tremor/ataxia,
mother does not want him as a ‘cabbage’

Impression: Mother used to [Child H’s] sickness: ‘sick role’.
Wants trachea/ventilator
likes rare disease/illness
treats [Child H] as he was as infant – re: cyanotic attacks
re: trachea….”

And the other word beginning with ‘l’ and

“re: general care.

“Needs: PO monitor…..
Neb…
Trachea closed.”

This is a medical/clinical note par excellence and it is a matter of considerable astonishment that the only way that this document can be discovered by a subsequent clinician is to be aware of the fact that there is an SC file on this child and because the only source of this document is in its original form in the SC file and nowhere else, a matter compounded, you may think, that the SC file for this patient then left Brompton and nestled up in South Staffs where the child never was a patient, ever.

As we can see, going back to what Professor Southall has to say about this matter, and that is at C2©, page 19 just below the entry that I have already taken you to, he says:

“This document looks like an original. It is a note made by Dr Samuels. I think it is the note made by Dr Samuels on 16 March 1990 when he reviewed [Child H] prior to discharge…..

Professor Southall did not write this note and he cannot explain how it came to be kept in the Special Case file. It is denied that Professor Southall placed this document in the SC file.”

As is obvious, and I need not take you to Professor David’s version of this, at paragraph 148 of his report at C3(b) paragraph 148, where he says that this document is something which should have been filed in the child’s medical records.

The next three items in the SC file of which complaint has been made can be taken together. Can I take you to page 48?

This is a letter from Dr Dinwiddie to Dr Southall, and again you see the manuscript list, that it was put in the SC file 2026:

“Dear David

Re: [Child H[

Thank you for your letter about [Child H]. I am very grateful to you for your help in the management of this case and I am sorry that they took up so much of our time without them agreeing to your recommendations as to treatment.

We have very much taken on board your observations regarding the psychosocial aspects of this case and we will bear them in mind when we next review him here. I entirely agree that the whole situation is extremely difficult. I do however very much appreciate your opinion based on such a large experience with his type of problem. This is most helpful to us in our future management of his case.”

We read that together with item 4 in the Appendix. That is item 3 in Appendix One and item 4 in Appendix One is on page 53. This is a letter from the paediatrician at the University Hospital of Wales to Dr Southall, again with the SC number 2026, and one can see where this letter was going from, as it were, Dr Southall to all the others, and then to end up in the SC file. We see that from the manuscript entry on the right-hand side. This lady is writing to Professor Southall (Dr Southall as he still then was) in 1990:

“Thank you for writing to me again – I shall go immediately to buy a copy of my unfavourite magazine The Woman’s Own.”

Pausing there a moment, this child had been featured in an article in that magazine.

“I have almost lost sleep over this little boy and the problems, but have not succeeded in seeing him with his parents though I have tried a few times by writing to them to see him in my clinic. I have also spoken with the Social Worker involved and the Nursing Officer for the Health Visiting and we have been trying to have a slightly more formal case conference which I will now get under way in the next week.

One or two things here have delayed my being more active and intervening. Firstly, the people who know them say that the little boy seems to be well and well related with all the members of his family (though not of normal development). Secondly, there is a very real fear that if we become involved in too high a profile along the lines that both you and I are thinking of, that something really will happen to [Child H], that is that he is more at risk if we attempt confrontation or opposition to his mother’s pathological behaviour than if we quietly go along with it. However, having read your latest letter I really will see what we ought to be doing and I will involve Social Services in a more formal way, which I have not done up to now.”

Then she deals with her own position, as she had not been involved at the request of the GP.

This letter, which is item 4 in Appendix One, should be read with the letter at page 55, which is item 5 in Appendix One. That is another letter from the same Dr Weaver of 12 June, and the previous letter was 6 June. She indicates that she had met informally with the child’s general practitioner, the health visiting nursing officer, social services and the educational psychologist. She also indicates that she had taken some informal advice from one of the lawyer’s in the Welsh Office. She also deals with the school history about the child, who was dyspraxic:

“I know that he is not really quite a 100% neurologically. His mother attends the school daily and makes herself useful to the staff, and apparently attends to [Child H’s] tracheostomy during break times, but the school have no problem with the little boy medically, nor indeed socially or emotionally.”

She deals with the little boy being quite well adjusted and further matters and over the page:

“If you feel very strongly that the use of a ventilator at night with [Child H] could cause damage, then I think I have to ask that you communicate directly with the family doctor …”,

and also indicating, in the last paragraph:

“I also agree that [Child H] ought to be investigated neurologically which we could easily do at UHW …”.

Item 3, which is at page 48, item 4, which is at page 53, and this item 5, at page 56, are dealt with together by Professor David in his report at C3, tab 7(b) at paragraph 149. It says at paragraph 149 on page 66:

“Letters to Dr Southall

There are three letters, one from Dr Dinwiddie, and two from Dr Weaver”,

and he sets out the pages. He says that the letter from Hempsons makes no reference to these letters.

“The letter from Dinwiddie thanked Southall for his input and said that Southall’s observations regarding the psychosocial aspects had been taken on board.”

At paragraph 152:

“The letters from Dr Weaver basically said:

• she had not succeeded in seeing the boy and his parents
• she had almost lost sleep over the boy and the problems
• she had spoken to, and/or met with, the health visitor nursing officer, social services, the GP and the educational psychologist
• she had taken legal advice from a lawyer in the Welsh Office
• the boy was quite happy in an ordinary class, though he had dyspraxia and language problems and was not quite 100% neurologically
• the school had no medical, social or emotional problems
• other professionals were very aware of the mother’s ‘pathological attitude’ but felt that the boy was quite well adjusted, happy and well cared for in every other way.
• the feeling was that he was treated perfectly normally until anyone enters discussion about illness which then assumes enormous proportions and importance.
• ‘we’, together with the GP, feel that any threat to intervene in this abnormal illness behaviour could possibly result in serious consequences for the child, thus ‘proving’ he had a potentially lethal problem.
• if Dr Southall felt very strongly that the use of a ventilator at night could cause damage, then he was asked to communicate directly with the family doctor and Social Services, indicating the danger to which he was being exposed by ill advised medical management.
• local feeling of exasperation, but fear that one could make matters even worse if one was not very cautious.
• agreed that the child should be investigated neurologically, could be done at UHW.
• will wait to hear from Dr Dinwiddie (to whom the letter was copied)”.

Then paragraph 153:

“In my view these letters, which all contained important information, should have been filed in the patient’s hospital medical records at the Brompton Hospital and the Great Ormond Street Hospital for Sick Children.”

They were not; they were not in the Brompton records of this child, they were kept in these parallel SC files, thereby, we say, being in accessible for others.

The next item in Appendix One relating to this child is item number 6, which is at page 114. The letter at page 114 is a letter of 25 July 1991 from the University Hospital of Wales to Dr Southall. I need to put this letter in context. By this time, which is a year or so after the child had been seen by Dr Southall, a court order had been obtained that the child should attend overnight monitoring at the University Hospital of Wales and that the tapes would be analysed at Dr Southall’s unit at the Royal Brompton. That is the context of this letter.

It is a manuscript letter from Dr Weaver’s senior registrar, Dr Mattles:

“Dear Dr Southall

Enclosed are the first tapes on [Child H] … We have not had any problems since monitoring began on the 18/7/91. However, I should be grateful if these tapes could be looked at so that we can ensure that there have not been any technical problems with the recordings.”

I anticipate that when Professor David is shown this letter, which it appears that, extremely unusually for him, he overlooked when asked to comment on Appendix One, he will say that this is a hospital medical record that should have been filed in the hospital medical records and was not so filed. Equally, Professor Southall is silent on this letter.

The final item in the SC file relating to this child is item 7, which one sees at page 332. This is October 1992, almost a year after the previous letter, and again, to put this letter in context, due to concerns about parental care the child had been fostered for a period and also the tracheostomy had been repaired, i.e. the tube taken out, as I understand it. This is a letter at that period from Dr Weaver to Dr Southall, who was by then back at Stoke as a professor. It says:

“You will be pleased to hear that [Child H] is now at home full-time, but that a Supervision Order was recently granted to Social Services for a further 12 months. No orders were made in respect of …”,

the children there mentioned.

“We have had a pretty smooth run over the past year, I would say, in that we had a particularly good foster family and there were no major upsets. [Child H] is needing help in school, but his health has been very good and, apart from a persistent slight tendency to leak from the tracheostomy site when he has a cold, there has been no medical problem.

His parents were not keen for me to do anything about the tracheostomy site and I am happy to wait, although I think possibly in the future, it might need a little surgical attention.

Thank you for all the hard work you put into this case – it looks as though we shall proceed in a pretty normal way now and, perhaps, better than we all thought at first.”.

You will see the manuscript, that this letter was to be placed in the SC file, about which Professor David comments at paragraph 157 of C3 7(b), paragraph 157 at page 68. I can take you, cutting to the chase, to paragraph 160, where Professor David says, in relation to this letter:

“In my view this letter, which contained important information, should have been filed in the patient’s hospital medical records at The Brompton Hospital ….. There was reference to a foster family, and a Supervision Order, but I cannot see that as being a reason to exclude the letter from the child’s hospital medical records.”

Madam, that is all I have to say in relation to SC files and Appendix 1 in relation to this and indeed any other patient, but this patient appears as a subject of head of charge 13 and 14, which, if I can take you to head of charge 13 and 14, is in my respectful submission self-explanatory. Head of charge 13(a) says:

“a. You treated both Child A and Child H at the Royal Brompton Hospital, and there created an “S/C” file for each child,

b. Each such “S/C” file contained original Royal Brompton Hospital medical records,

c. You took, or caused to be taken, the “S/C” Files relating to both Child A and Child H away from the Royal Brompton Hospital and to the North Staffordshire Hospital;”

Head of charge 14 reads the consequences of that. We would say, not unnaturally, that if you take away a file about which little is known, and which contains original medical records, away from the hospital where those records belong, you are making the question of accessibility of these original medical records so inaccessible to subsequent clinicians we would say almost to the point of invisibility.

Again, in relation to this case there are further issues as to accessibility of these records, and this is the third matter which I need to discuss with my learned friend.

Finally, can I come to the issue of computer records held by Professor Southall at the North Staffordshire Hospital, and then we deal with heads of charge 15 and 16 and Appendix 2. Head of charge 15(a) says that:

“a. On the computer system held at the Academic Department of Paediatrics, North Staffordshire Hospital you maintained, or caused to be maintained, the medical records set out in Appendix 2,” – we will go to those -

“b. These computer medical records are not contained in children’s hospital medical records at either the Royal Brompton Hospital (for Child A and Child H) or the North Staffordshire Hospital (for Child D and Child B),

c. Neither Child A nor Child H were treated at the North Staffordshire Hospital, but only at the Royal Brompton Hospital;”

The case in relation to that is head of charge 16, and in particular we assert these amounted to keeping secret medical records on these children. The point being, this is not on the hospital computer system, this is a local PC sitting in the Paediatric Department, this is Professor Southall’s own PC we are talking about, his own personal computer, that he kept computer records relating to these children on his own PC at the Department.

In our submission, these heads of charge are extremely serious. The complainants only very recently learnt of the existence of the computer records held by Professor Southall. Their discovery came back in a way which has been explained in a statement that my partner instructing solicitor has drafted, which I understand is now in a form that is agreed that I can put before the Panel in order to cut this matter short, and accordingly at the next C number, I will take you to various paragraphs of this document.

THE CHAIRMAN: We will call it C8. (Document handed)

MR TYSON: Document C8 is a witness statement of Sarah Louise Ellson, signed by her and dated 15 November 2006. You will need to have one document in front of you when you read that, and this is bundle C3, at section 7, subsection (d), and within (d), (v), so it is C3 7(d)(v), and it should be a document entitled “Security guidelines”. Just have that at one side as I take you through a number, but certainly not all, of the paragraphs of this witness statement. If my learned friend wants me to take you to others I will gladly so, but the edited highlights, if I can put it this way, you will find at paragraph 1:

“I, Sarah Louise Ellson will say as follows:

2. I make this statement to supplement my earlier statement ….. which dealt with my inspection of [the] original ….. (‘SC’) files.

3. In this statement I set out the background to documentation obtained from Professor Southall, via his solicitors Hempsons, from what I understand to be the Academic Department computer.

4. On 24 January 2006 Hempsons solicitors wrote to the General Medical Council.”

Just pausing there, and that is the letter that we have been constantly looking at, giving Professor Southall’s version of the various events, which is 6© in C2.

It indicates that on a page of the letter that:

“…reference was made to protocols being established by Professor Southall, including a protocol as to how Professor Southall would deal with confidential documents. As a result of this letter I wrote to Hempsons ….. on 8 February ….. asking that they provide any particular written documentation relating to the protocol(s). As a result, on 16 February 2006, I was provided with a one page document entitled ‘Security guidelines for Academic Department of Paediatrics’.”

This is where I need you to cross-reference to, and it might be worth writing under paragraph 4, “C3 7(d)(v)”. If I can just take you to that North Staffs document for a moment, it defines what “information” is, and including (i), (ii), (iii), (iv) and (v), and (i) related to social services and medical information on a patient about child abuse; (ii) were files relating to controversy on covert video surveillance; (iii) were video tapes relating to covert video surveillance; (iv) was recording tapes of events relating to child abuse; and (v) was computer disks containing correspondence on any of the above.

Returning to paragraph 5of this witness statement:

“As pointed out by Hempsons in their letter of 16 February 2006 ‘information’ was defined to include computer disks. Accordingly, on 1 March 2006 I wrote to Hempsons ….. stating ‘we trust that these [computer disks] have been securely stored and therefore now request your client provides all computer disks relating to the SC files in this case’.”

Then there is a history of various chasing – perhaps I need to read paragraph 6:

“On 21 March ….. I wrote again asking for ….. further ‘information’ held by Professor Southall on computer to be provided as soon as possible. I also wrote that day to the University Hospital of North Staffordshire, with whom I have previously had correspondence in order to obtain access to paper records. I explained to them that I now had reason to believe that there might be material held on computers or word processors and I asked them to clarify what information was held on computer systems at North Staffordshire Hospital (both on the main system and any separate word processors).

7. On 23 May 2006, presumably as a result of my request, the North Staffordshire Trust wrote to Professor Southall indicating that I had made this request and asking him to consider whether he had any ‘structured or unstructured information including electronic or manual systems’ and asking him to consider the ‘HISS, PC and email files’.”

Then there is a number of more chasing. I need to pick it up at paragraph 13:

“I had to write to Hempsons again on [the dates there set out] chasing for computer information and a schedule of the analog tapes and chart recorder print outs ….. Finally on 18 August 2006 ….. I received 11 pages said to be print outs of the ‘computer database’ held in the cases of [B, H and A].”

I need to take you back to the middle of paragraph 9 where we were promised A, D, H and B, so on 18 August we got, as it were, three out of the four. The statement continues,

“We were told that there was no recordings file for M”.

That is perhaps not surprising because M was never a patient at any time. He was merely assessed with his eldest brother by the professor. The statement continues,

“The letter from Hempsons was silent on the issue of documentation relating to the B case despite earlier correspondence on 27 June 2006 indicating that there would be computer records for this child”.

I need to take you to paragraph 18 where, sensibly, the solicitors agreed to try to sort out this matter of computer records, so they all met on site. Paragraph 18,

“I met with Professor Southall (with his solicitor from Hempsons) shortly after 11 am on Tuesday 31 October”.

That is two weeks ago.

“We met at the Academic Department for Paediatrics at North Staffordshire Hospital”.

Then I take you to paragraph 31,

“I was then shown a computer in the Academic Department. I was informed that this computer was stand alone and was not networked to other computers. It was clarified that it was from this computer material had been printed and sent to Field Fisher Waterhouse”.

That was the material relating to the three patients.

“It was explained that actually the computer I was being shown was a physically different computer than the one originally used by Professor Southall and his team. I was told that his computer was seized [for a period]…Professor Southall was given a new (upgraded ) computer onto which his files and databases had been transferred. It was this computer being viewed today”.

Paragraph 34,

“Professor Southall explained that there were two databases on the computer, ‘SC File’ and ‘Recordings’. When the computer was returned to him he found that the passwords had been altered for these databases and he had only recently (this summer) found out the new passwords (which in fact were the same as the old ones but with two additional digits at the beginning.

I asked who would have access to the computer and these databases. Professor Southall thought that he, together with Dr Samuels and the Clinical Physiological Monitoring Technician (a nurse) would have known the password and would have been responsible for entering the data.

In my presence Professor Southall opened the ‘SC File’ database first (it uses Filemaker software). He demonstrated that there were a variety of layouts to display the information held on each case but it appeared that ‘layout #1’ was the most comprehensive. This creates documents which are headed ‘Patient’s Data’.”

Can I pause there for a moment and ask you to look at the SC file relating to Patient H, which we have at C7? Right at the back there should be a little tab and you will see on the third document in it is headed “patient’s data” in the middle. In the top left hand corner it has, “Filemaker Pro”, and then “layout #8 Records 4449”. It gives the patient’s SC number, which is 2026, and we see who the patient is, who the referring consultant is and gives a diagnosis of self-resolving cyanotic episodes, upper airway obstruction, “??Munchausen’s Syndrome by Proxy”, and the admissions that were made in September 1989 and March 1990.

That was an example, going back to paragraph 36, of a cross-reference. The statement says,

“In my presence Professor Southall opened the ‘SC File’ database first (it uses Filemaker software). He demonstrated that there were a variety of layouts to display the information held on each case but it appeared that ‘layout #1# was the most comprehensive”.

In fact you can see in the top left hand corner that this was layout #8. It continues,

“This creates documents which are headed ‘patient’s Data’. (In fact I noted when I reviewed the documents again that we have been provided with screen shots of layout #8 for D and A but I am reasonably satisfied that this is the same information as was on layout #1.

Professor Southall indicated to me that he had searched for all the families relevant to the General Medical Council case on the database and had printed out and sent (via his solicitor) the ones he had found. He had not previously been able to find anything for B, however, in anticipation of my visit he had tried again and on this occasion had located an entry for her. We searched under B and the computer suggested that there were 30 or so records. We then searched B and located the one entry for Child B.

Professor Southall could not explain why he had not been able to find this entry previously and suggested that he was concerned that somewhere in the transfer of the databases to his new computer there may have been some form of corruption, he felt that the system was not now totally reliable”.

Paragraph 39,

“Professor Southall then printed out the page we had found for Child B. He explained that a further problem created by the transfer of the database and/or the use of a new printer was that the layout when printed was not correct (some text prints over other text). For this reason, for some of the printouts he has supplied Professor Southall has prepared a screen shot version of the data”.

As I understand it, the document I was just showing you is a screen shot.

“The data printed out for B from this database consisted of one page. I asked if there was other information held on this database about this family but Professor Southall informed me that the sheet printed out held the entirety of the information on that family (that he had been able to find).

On this database there are 4449 records. This figure can be seen for example in the screen shot version of the printout for D2”.

We can see it on the example I showed you from C7. Whether that indicates that there are 4,449 SC files held by the professor is a matter that will have to be explored in evidence, but it is certainly indicative that there are a large number of SC files about. It is said at paragraph 42,

“We then repeated the search exercise for the other families. On this database we found one entry for H, one for B and one for A. We had earlier been sent these printouts by Hempsons on 18 August 2006.

I was then shown the second database ‘Recordings’. This database contains the template letter where the information, ‘We performed an x-hour overnight recording on the (date) with records and signals and result set out”.

Pausing there a moment, as we are looking at C7, just turn back one page. This comes from the recordings database as opposed to the special cases database. So there are two databases. One is a recordings database and the other is special cases database. We can see that this has a number of inherent problems, but let me deal with the positive aspects. You can see that it is a letter to somebody relating to SC case 2026 indicating that,

“We performed a 12 h overnight recording on the 28 September 1989”,

and setting out what those recordings were and making a nil recommendation. On the previous page you can see a similar matter from the recordings database relating to the earlier admission on 25 September 1989. What is odd, of course, about this is that the title there, from the Academic Department of Paediatrics would be wrong, because this child was never at the Academic Department of Paediatrics, and you can see the date of this record is 19 June 1990, and on 19 June 1990, Dr Southall, as he then was, was still at the Royal Brompton. He did not go to the Academic Department of Paediatrics until 1992. Whether it is just a template glitch – I am at the frontiers of my computer knowledge here – and of any significance at all, I do not know. I merely point out that it is slightly odd.

That is an example from the recordings file. Can I take you back to paragraph 44 of the statement?

MRS LLOYD: Excuse me, Madam Chairman, in the interests of justice I feel I have reached saturation point in terms of concentrating on this documentation. It is very important, to be fair to the doctor, that we have our full attention when dealing with these matters. The time is now 5 o’clock and I cannot absorb any more detail this evening.

THE CHAIRMAN: Noticing the time I was about to ask Mr Tyson how long he anticipates it will take to complete this.

MR TYSON: I take the point made by Mrs Lloyd, and it is a correct point. There is no point in me banging on if no one is listening. It is not fair to anybody. I therefore intend to stop. I have about 10 minutes more but this heads of charge relating to computers is important and rather complicated, I have to say, so it does need some degree of concentration. I respect Mrs Lloyd for saying she has had enough and I will not proceed any further in my opening as a result of that.

Where it takes us from now is if we can deal with some case management matters because my learned friend and I have some slightly different views about that. Perhaps I can set out my views on case management hereafter.

Lawyers are notorious for giving bad time estimates, but I do not anticipate that I will be more than a quarter of an hour more dealing with these computer matters. Then I think he is right that you have an opportunity of reading the two material reports by Professor David, which are at C3, 7(a) and 7(b), together with the response to the special cases allegations by Professor Southall at C2, 6©. I would ask the panel to read those and then I intend to call Professor David.

We have only got Professor David for tomorrow and the next day. We do not have him after Friday. My learned friend has indicated to me, and I am grateful for that, that if there was some reading time for Professor David, he anticipated that Professor David would be completed by Friday.

Anticipating what my learned friend might say to you that not only have you got to read the matters that I have mentioned but also all the medical material in this case before we reach Professor David, then I say that that is not right; it is inappropriate and we would never reach Professor David before the weekend.

I am merely asking you to read his two reports before we call him, and Dr Southall’s reply. You have had an extensive opening in this case, and that should be sufficient, in my respectful submission, to fairly consider and take on Professor David’s evidence. I anticipate that, after I close my opening, you would want an hour or two to seek to master these reports and then we go straight into Professor David’s evidence and he would occupy the rest of tomorrow and the next day. That is what I am asking you to do.

THE CHAIRMAN: Mr Coonan, did you wish to make a comment?

MR COONAN: I do. My learned friend very helpfully has opened this case now for two days. That is perhaps a measure of the complexity, certainly in some areas of this case, that we have to grapple with. I say that deliberately; that includes us too. We have to assess and deal with the case that is brought against Dr Southall and deal with documentation.

May I just take a number of points to consider? The first is that my learned friend, and it is no criticism and we, and me personally have enormous sympathy with Mrs Lloyd’s view ---

MRS LLOYD: It is not just my view but that of everyone.

MR COONAN: That may well be but whatever the view and however the extent it is shared, it is shared by others, certainly on this side. The fact is that he has not closed his opening and it is important obviously that he does so that you amply know the extent of the case that we have to meet.

Of course the first point that I make is that it would be entirely a matter for you the extent to which you feel you need to read more into this case. I am very conscious that there are lay members on this panel. So far, and I stress that, there is a limited amount of medical record material which has been placed before you. I do not know the extent to which each of you have managed to absorb the content of those records as they have been referred to by Mr Tyson. Again, it is no criticism, but it has taken a lot of time to absorb the cross-referencing and so forth and make a note of that.

I was going to invite you therefore to consider not only taking some reading time but to read Professor David’s two reports, yes, together with Hempsons letter of 24 January, yes, but also such of the special cases material, or indeed any of the other material, which thus far you have not managed to absorb.

There are two reasons I say that, and in particular it applies to case B and case H. First of all, it is to do with what has been referred to already, the question of context, and, secondly, to aim to shorten at least my cross-examination, if not my learned friend’s examination, of Professor David. If we have to go through enormous detail each of these documents again, there is a very, very strong risk that we would not finish by Friday. It is disappointing to be told by my learned friend – I accept I knew before just now but nonetheless it is still disappointing to be told – that a case which is being brought on behalf of these complainants is limited in terms of time because his expert is only available until Friday night.

With the best will in the world, on our side we will do what we can to accommodate Professor David, of course, but I can give no guarantee that the evidence in relation to Professor David will finish by Friday night. You may have a significant number of questions for Professor David. I do not know.

The idea that there has got to be this time limited period within which the case is going to be articulated through the mouth of the respective experts in this way may be somewhat unreal. I am just simply stating – it is not intended to be said in any threatening or pointed way – that these are facts that you may have to grapple with in terms of timetable. That is the first matter, whether you would find it of value to take some time to read – and I am not just simply saying, “read it overnight” because we are all human and there are limits to how much more we can do.

The next matter concerns our position. First of all, we have to grapple, as Mr Tyson fairly and correctly said, with this question of accessibility. I am not going to burden you with the details but there is a certain amount of material which is going to require my attention – I have not been able to pay any attention to it before now – and for Mr Tyson and myself after that to discuss it. What the result of that will be, I do not know.

Secondly, I have not yet myself been able to look at any of the original records in respect of any of these four children, and I include the main medical records, if I can use that phrase, and the special cases file. I refer to the original records available.

I anticipate, from what I have been told by Ms Ball who instructs me from Messrs Hempsons and who has had an opportunity of looking briefly at the original special cases files for two of the families, that you may well have to examine some of these original records in relation to the charge or charges which are brought in relation to the special cases files, but in order obviously to prevent you from being burdened unnecessarily with that sort of exercise, again I at least on Dr Southall’s behalf need to spend a little time looking at these documents. Two of the children’s files, medical records, were handed over to us I think round about 4.30 this afternoon. I am just stating a fact that we have not yet had an opportunity of looking at them.

The third matter concerns my ability to respond to Professor David’s evidence when he finishes it. Obviously I have had quite a good indication of what that evidence would be for two reasons: first, I have had the report; and, secondly, I have heard Mr Tyson’s helpful opening. I have not yet heard the totality of Professor David’s evidence. It may be that I will need some time in any event to be able to deal with some of the issues that Professor David raises during the course of his evidence.

All these factors are going towards this question of whether we can actually cram into a pint pot a gallon. These are real issues which I just leave before you for the moment.

Could I just return to the first point? You may therefore find it helpful to take some significant time to read. How much time you need is obviously a matter for you. Whilst you were doing that, we could attempt to grapple with some of the other matters that I have identified and deal with them in parallel whilst you were taking some reading time.

THE CHAIRMAN: Mr Coonan, you well put what you anticipate as being various problems. If I may, I do not want to pursue trying to solve these problems at this time tonight. You put the problems on the table, as it were, but I think that it is not going to be very constructive to try to solve them now. We accept that there are problems. Perhaps leaving it overnight will give both sides an opportunity to consider what ways forward there may be. Further, in terms of what reading the panel may need to do in order to feel abreast of the material that has been presented to them, again I do not know, without consulting the panel to find out, how each individual feels and I have not had an opportunity to do that.

Clearly I understand none of us have read those reports in detail, but how much extra time we need to take in the details of the documents referred to in the SC reports, again I am not sure how much people took in and want to spend more time on it.

What is clear is that we cannot unduly rush matters that need to be taken in their proper course. If I may, unless there is something that has to be said now, I would rather re-open this matter in the morning.

MR TYSON: I just want to say one thing now. I have got every sympathy with the panel absorption of material and any panel difficulties. I have no sympathy whatsoever for any difficulties that my learned friend may have or may think he has because he and I and our respective teams have been involved in this case for over two years now and we have had plenty of time to absorb all the materials and documents within those two years. Panel difficulties, yes; my learned friend’s difficulties, ignore.

MR COONAN: I do not really want to get us into an argument about it but I am rather dismayed to hear my learned friend say that. We are normally the best of friends but he must understand that the way a case develops, the way in which original documents, for example, and statements are served in a particular form today and yesterday – and I exaggerate not – requires attention. It is only through the good offices of the defence that you have had placed before you an agreed statement by Ms Ellson. We have looked at that and were able to agree that, to spare her the necessity of giving evidence.

THE CHAIRMAN: It is very clear that we do face a difficult situation. I think perhaps everyone is tired now and that we should think about this overnight and revisit it in the morning. I am now going to adjourn until 9.30 tomorrow morning.

(The Panel adjourned until 9.30 a.m. on Thursday, 16 November 2006)