Cot death, infanticide & child protection

GENERAL MEDICAL COUNCIL

FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)

Thursday 16 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 FOUR)

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

TIMOTHY JOSEPH DAVID, Sworn
Examined by MR TYSON 16

THE CHAIRMAN: Good morning, everyone.

MR COONAN: Madam, can I mention one small matter. I have mentioned this to Mr Tyson. You may see sitting at the back of the Chamber Dr Margaret Crawford, who is a consultant paediatrician. She has arrived to assist us with Professor Southall’s case. I have mentioned this matter to Mr Tyson and he has no objection, but of course it is a matter for you as to whether you permit her to sit in.

THE CHAIRMAN: The Panel is happy for Dr Crawford to sit in.

MR TYSON: Of course I do not object, madam. I have only one observation. If Dr Crawford is going to give evidence on behalf of Dr Southall, then we would like to see any report that she may produce.

Madam, there is one matter of housekeeping this morning. Can I ask you to replace one document with another? Turn, please, to C7, page 20. I indicated that there might be some words missing at the foot of that page. We have now got a better photocopy and I ask you to take out the existing page and replace it with the new one that is being handed out. (Document handed)

Secondly, I promised the Panel I would put all the appendix documents into one file and that file I now produce as C9. (Document handed) Can I say straightaway that in C9 is the incomplete page 20 document that I have just asked you to replace. We will make appropriate arrangements for that to be sorted out.

We reached a stage where I had burdened you for too long and too technically last night, so what I intend to do now is to say one thing more about Appendix One and start again on computers. Appendix One sounds complicated but in my submission it is in fact simple if you just ask yourself four questions in relation to each item. Question 1: is it a medical record? Question 2: is it an original? Question 3: is it not elsewhere in the child’s medical records at the relevant hospital? If the answer is yes to those three questions, you then go on to ask question 4: why is it only in the SC file?

To assist you on Question 1, Professor David has given you in his first report – C3 – at page 7(a), a general description of what is a medical record. That is at page 227, paragraphs 355 to 356. To assist you on whether a particular item is a medical record, one has to look at Professor David’s second report, which is at C3, 7(b). As will become clear, he deals with each child page by page and his comments relating to Child A start at page 14. His comments on Child B start at page 21. His comments on Child D start at page 28, and his comments on Child H start at page 58. I anticipate that certainly by some time tomorrow I will have produced a spreadsheet which will tie in each and every item of Appendix One to the particular paragraph in Professor David’s report to assist you on Question 1: is it a medical record?

So far as Question 2 is concerned – is it an original – I anticipate that this matter can be dealt with by way of admission, but my learned friend is coming back on that, otherwise I can provide it through a particular witness. So far as Question 3 is concerned – is it not elsewhere in the child’s medical records – again I hope that that can be dealt with by way of admission, and again I look to my learned friend to come up with that in due course as a result of his current investigations. I do not anticipate therefore that you will have much difficulty on Questions 2 and 3. Indeed, I do not anticipate you will have much difficulty on Question 1.

So far as Question 4 is concerned, which is the real issue, there are broadly two answers given by Professor Southall to that question: why is it only in the SC file? Answer one is, “Yes, I agree it is a medical record and I cannot understand or explain why it is in the SC file”. The second main answer that he gives is that, as a matter of policy he determined that it should only be in the SC file because it related to matters of child protection. As you can see by that analysis, you do not have to master the detail of precisely what any document in C9 is saying. You merely have to look at each item and see whether or not you agree with Professor David or Professor Southall that it is or is not a medical record. You do not have to go into the detail of what precisely was said. You just have to follow the exercise that Professor David guides you through in his report, and say whether or not you think it is a medical record. You do not have to get up to speed on any particular test. An overall view should be sufficient.

Thus you do not have to go through each and every one of the SC files in this case, from C5 to C7, absorbing all the material. All you have to do to answer the first question is look at C9 and, based on the evidence before you, decide whether each and every item there is or is not a medical record or clinical document of some sort. If you concentrate on those four questions, your task will be much easier. Question 4 is, of course, the vital one: why is it there?

I now come to the heads of charge 15, 16 and Appendix Two, which relates to the computer information. You will recall that what is alleged here under head of charge 15 – perhaps I can take you to that – is that,

“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 Two”.

If you glance at Appendix Two you will see that in relation to four children it is alleged that the documents there listed are computer records held on the paediatric department’s own computer relating to those four children. To assist you with that, the Appendix Two documents have been collated together. They are also in your SC files but I will distribute a new document which I will label as C10. (Document handed)

Going back to head of charge 15(a), it reads,

“On the computer system held at the Academic Department of Paediatrics, North Staffordshire you maintained, or caused to be maintained, the medical records set out in Appendix Two”.

Those are the C10 documents. You will recall also that heads of charge 15(a) is admitted by the practitioner. Head of charge 15(b) says,

“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)”.

So the assertion is clear that the C10 documents are not elsewhere in the appropriate medical records held by the hospital. Charge 15© takes us one step further and that too, you will recall, is admitted, that,

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

We maintain that the consequence of the matters set out in head of charge 15 are those set out in head of charge 16. You should note head of charge 16(b) where we are asserting that this amounted to keeping secret medical records on the children. We submit that these allegations are serious as well as being self-explanatory. These relate to the matters found on Professor Southall’s own computer in his own department; they are nothing to do with the main hospital records at all. The complainants have only recently learnt of the existence of these computer records held by Professor Southall and the discovery came about in a way which is explained by the statement of a partner in my firm of instructing solicitors, Field Fisher Waterhouse, which is a document I started to take you through before exhaustion set in, document C8.

I now need to take you to C8 and I need to take you to paragraph 4 to begin with:

“On 24 January 2006 Hempsons solicitors wrote to the General Medical Council…reference was made to protocols being established by Professor Southall, including protocol as to how Professor Southall would deal with confidential documents. As a result of this letter I wrote to Hempsons solicitors on 8 February 2006 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’.”

That document you will find in C3, Tab (d)(v). This is a document that was provided to my instructing solicitors in February of this year, and you will see that the objectives included the second objective,

“To ensure information relating to child abuse matters is kept in a secure place;
To introduce a procedure for the storage and retrieval of information relating to child abuse matters”.

You will see the bottom third where it says, “Information is defined as”, and at (v),

“Computer disks containing correspondence of any of the above”.

I need to take you back to paragraph 5 of C8, where it says,

“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 solicitors 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’.”

So the request in March was quite specific. We are now told that there are computer disks relating to these matters. Please produce any computer disks relating to the special cases for files in this case.

I am sorry, I need to take you to paragraph 9 where we were told in June 2006 that there were computer records in relation to the children A, D, H, and B. You can see that in the middle of paragraph 9.

Taking you to paragraph 13, having been told in June that they had them you will see on
18 August we got the printouts relating to D, H and A, but not B. The statement goes on as to various chasing and how it could be sorted, and I need to take you to paragraph 18 where eventually it was agreed that Professor Southall would take the solicitors for each side through the computer system, as well as the other matters. Therefore, the solicitors on each side met at the hospital on Tuesday 31 October.

Then I need to take you to paragraph 31 and we can see:

“I was then shown a computer in the Academic Department.”

Pausing there a moment, as I understand it, the Academic Department consisted effectively of a portakabin in a car park outside one of the four main hospitals in North Staffs. Then paragraph 31:

“I was shown a computer in the Academic Department. I was informed that this computer was stand alone and not networked to other computers.”

Pausing there, I do not know the extent of the computer knowledge within the Panel, but stand alone means just that; it is not connected to any other system, and in particular it is not connected with the hospital system. That stand alone computer, as I understand it, is merely for the use of the department and if you wanted to retrieve matters on the hospital computer or the hospital files, a different computer was required for that. It was not part of what they call the hospital network.

“It was clarified that it was from this computer material had been printed and sent to FFW”,

so effectively it was from the stand alone computer that the material in C10 was obtained.

Paragraph 32:

“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 …”,

in the circumstances there set out.

“On return from suspension Professor Southall was given a new (upgraded) computer onto which his files and databases had been transferred.”

Paragraph 34:

“Professor Southall explained that there were two databases on the computer ‘SC File’ and ‘Recordings’.”

I do not know that I need to go into any technical explanation of what a database is, but, effectively, if you tap in the word “SC File” you will find a whole lot of documents behind those words, and if you tap in “Recordings” you find a whole lot of other documents under that file.

Paragraph 35 indicates who had access to this particular computer and those databases.

“Professor Southall thought that he, together with Dr Samuels and the Clinical Physiological Monitoring Technician (a nurse) would have know the password and would have been responsible for entering the data.”

It is important, madam, because it links these, what we say, secret documents, to, at most, three people responsible, of which the head of department is of course Professor Southall, as he then was.

Paragraph 36:

“In my presence Professor Southall opened the ‘SC File’ database first … 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’. (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)”.

Can I just see what we are talking about there? Can I take you, please, to C10? What you have to grasp is that the SC files relate to documents that are headed “Patient’s data.” If we look, say, at the first document in C10, this relates to Child D and we can see that it gives clinical information relating to this child, including the date when the data was inputted, which is the 13/12/1994; the date of birth of the child, details of the parents, the address, the source of referral and the like, including the diagnosis which we can see three-quarters of the way down; then clinical information about the birth weight and the age of referral and matters like that at the bottom. Also, how many admissions and the reason for the admission, and here it was for continuous recording. You see that the only case reference is in the top left hand corner, which says, in this one, “Case No 3874.” That is a reference to the SC file number, not a reference to the hospital number, so it directly links this information with information arising from the SC file as opposed to from the hospital medical records.

In her witness statement at paragraph 36 Ms Ellson indicated that there was a difference in layouts and if you look at the top left-hand corner you will see a reference to “Layout #8.” That is where she is getting the reference.

DR SARKAR: Madam Chairman, can I make an observation?

THE CHAIRMAN: Yes. Do you need some clarification on this?

DR SARKAR: Yes. Mr Tyson, I am not wishing to steal your thunder, but if I am not having a case of déjà vu, have we not gone through all of this yesterday, in putting layout 1 and Ms Ellson’s witness statement in the same detail you have done it today?

MR TYSON: I understood that I was asked to repeat this because not everybody was taking it in towards the end of yesterday, so I said when I opened I would start again on computers because the computer information was being not fully absorbed. That is why I have started again. I did it, as I understood, at the request of the Panel. If you do not want to hear it, so be it.

THE CHAIRMAN: If I could explain to Dr Sarkar, we did indeed suggest to Mr Tyson that he should review rather than leap in in the middle of this, that he should recap, because this was a stand alone and it was clear that towards the end of yesterday there was a question mark over whether everybody was feeling that they were totally taking it in. He was asked to recap, I think.

MR SIMANOWITZ: The only problem is that the referencing now is to C10 rather than to the other references, and while I accept we do not want to leaf through all those pages, could we have the reference to the bundle as well, otherwise there is going to be a lot of confusion.

MR TYSON: Yes, certainly.

THE CHAIRMAN: Thank you. If that is possible, Mr Tyson, that may help some Panel members.

MR TYSON: Yes, certainly. I can give you the references. In any matters relating to Child D you will see that in C6, right at the end there is a separate tag that says “Computer Records.” That, with all the SC files, is a separate tag that says “Computer Records.” In relation to Child H you will find that in C7, right at the back under a separate tag that says “Computer Records.” In relation to Child A and Child B you will find the information in C5, again under the tag sign that says “Computer Records” relating to each of those children.

I also pointed out, and I point out again, that this is material from, as it were, the SC file material. I just merely point to the figure on the left-hand side that says “Records” and the patient’s data in the SC files, it appears, where it says “Records”, that there are 4,449 of such records held.

Madam, it may assist in the long run if we can just do a bit of housekeeping and together number all the documents in C10. I hope you have all reached 14. The records relating to Child D are pages 1 and 2 of C10, the records relating to Child H are pages 3 to 9, the records relating to Child A are pages 10 and 11 and the records relating to Child B are pages 12 to 14. Anything that says “Patient’s data” on it comes from the SC file.

If one looks at pages 1 and 2 you can see that they are effectively the same document produced in a different way. As I understand it, page 2 is if you just press the print button and you get a rather difficult printing system, and page 1, which is exactly the same, but that is, as it were, a picture of what is actually on the computer as you look at it. Page 1 and 2 are the same, but it is just easier to read them in the page 1 form. Similarly, from the SC files would be page 5 relating to Patient H, and that is a document that is in all material respects similar to page 7. So, page 5 comes from, as it were, the SC file selection. Similarly, relating to Child A, page 11 comes from the SC file part of the computer, as did page 12 relating to Child D.

Can I take you back now we have familiarised ourselves slightly with the documents?

MR McFARLANE: Madam Chairman, I would like to ask Mr Tyson a question please?

THE CHAIRMAN: You need some more clarification?

MR McFARLANE: Yes. Mr Tyson, can you tell me what is the difference between the document that we have called page 8 and the document that we have called page 6, apart from perhaps there being a bit more toner in the photocopier on page 6?

MR TYSON: In order to assist you with that you need to look at pages 3 and 4, which are the better versions of those two documents, and they relate to different dates of admission. This child was admitted twice and you can see from page 3 that one relates to the admission on 28 September 1989 and page 4 relates to the admission on 16 March 1990. The two documents you took me to, sir, would say the same things, but because of the printing difficulties there was a technical glitch in producing those documents, thus pages 4 and 5 are easier to read.

MR McFARLANE: I am most grateful to you for the explanation. Thank you.

MR TYSON: Can I take you back please to paragraph 36 and we can re-read it and now understand it:

“In my presence Professor Southall opened the ‘SC File’ database first (it uses Filemaker software).”

Just pausing there a moment, look at page 1 and you will see at the top left-hand corner the words “Filemaker.”

“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.’ ”

She goes on,

“(In fact I noted when I reviewed the documents again that we have been provided with screen shots of layout #8 for D”

– and we can see that on page 1 where it says “layout 8” on the top left-hand corner.

Paragraph 37:

“Professor Southall indicated to me that he had searched for all the families relevant to the GMC case on the database and had printed out and sent…. 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 [the first name of that child] and the computer suggested that there were 30 or so records. We then searched the second name of that child] and located the one entry for [that child].”

You may like to put that that is C10, page 12. There we see this is another patient’s data. I need to emphasise again that anything that has patient’s data on it is a reference from the SC file part of this case. You see the diagnosis and the admission, and the date of admission is 1Septembr 1993.

So this document was produced, I think for the first time, at that meeting but I will corrected if I am wrong about that.

Paragraph 38:

“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.

39. Professor Southall then printed out the page we had found for [Child B].”

This is page 12.

“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.”

This goes to the answer to the question that Mr McFarlane was asking earlier. If you print out, you get something that looks like 12. If you go for what is technically known as a screen shot, you get something like page 1.

Paragraph 40:

“The data printed out for B from this database consisted of one page.”

That is our page 12.

“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).

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

That is on page 1. I have taken you to that figure.

Paragraph 42:

“We then repeated the search exercise for the other families. On this database we found one entry for [H]…”

You will see that at page 5.

“…and one for [D]…”

You will see that at page 1.

“…and one for [A]…”

You will see that at page 11.

“We had earlier been sent these printouts by Hempsons on 18 August 2006.”

That is the SC part of his database. He then has another completely separate database entitled “Recordings”. Ms Ellson goes on to deal with that at paragraph 43.

“I was then shown the second database ‘Recordings’. This database contains the template letter where the information ‘We performed a x hour overnight recording on the {date}’ with recordings and signals and result set out.

44. There are 1856 records on this database (this figure can be seen on the screen shot version of the print out for B)”.

We can see it, for instance, on page 3. This is, as it were, a standard letter held on the computer and you just fill in the little bit relevant to this particular patient. This is under the “recordings” section. You can see at paragraph 44 that Ms Ellson is making reference to the fact there are 1856 records on this database. You can see that at page 3 in the top left-hand corner where it says “Records”.

Paragraph 44, second sentence:

“Again Professor Southall demonstrated a search in relation to each of the relevant families. We found entries for B (this was apparently found on the morning of my visit…”

If I can take you to the B numbers found on the morning of the visit, this is page 13, what they call the screen shot version of that, and page 14 is how it happened when it was printed out. You see it is equivalent to a technical document called a discharge summary where it is a report back to the referring clinician about the results of the admission. Here we can see, by looking at 13 and 14, that it was a letter to the referring clinician at the hospital there mentioned. It says:

“Your patient was referred with”, going back to 13, “recurrent apnoea …. We performed a continuous recording on 1 September 1993”.

It gives the results of that recording. This is under what we call the recordings section. It says, “We found entries for B…” which I have taken you to.

Back at paragraph 44:

“There are in fact two entries for H both of which have previously been provided (marked record 1 and 2…..) Professor Southall indicated that this was because of the two recordings undertaken on H.”

Can I take you to page 3, the reference? You will see that record H is referring to an admission on 28 September 1989. In the top left-hand corner, just above the word “records” you will see a numeral 1. On the next page, page 4, you will see that there is a numeral 2 in the same spot and that this, as we see, relates to –

“Your patient was referred with
We performed a 12h overnight recording on 16th March”

Page 1 relates to the admission on 28 September 1989, hence the 1, and 2, on page 4, relates to the second admission on 16 March.

THE CHAIRMAN: Mr Tyson, may I ask for clarification here? On Appendix Two, as we have had it revised, under Child H, under the medical records and under (iii), it says “Discharge letter referring to 19 June 1990”. I see that 19 June 1990 is the date that has come up as the date of the letter. Should that in fact be 16 March? I notice under (ii) it says “Discharge letter referring to 28 September…”.

MR TYSON: Madam, you are absolutely right. There are some bizarre dates, which is the middle column, that bear no relation to when the child was actually there, but you are right, it does relate to that, and I seek leave to amend Appendix Two under Child H (iii) to “Discharge letter referring to 16 March 1990”.

THE CHAIRMAN: I take it there is no objection to that?

MR COONAN: No, absolutely none. I do not accept they are bizarre dates.

THE CHAIRMAN: But you accept that it needs correcting?

MR COONAN: Yes.

THE CHAIRMAN: Thank you.

MR TYSON: I am grateful for that, Madam.

Whilst we are on Appendix Two, looking at it, the panel may find it useful to write beside Appendix Two under Child D that the reference to that is at C10 at page 1. In relation to Child H, the first document is the patient data document we find at page 5. The discharge letter relating to the entry for 28 September one finds at page 3. The discharge letter relating to the 16 March 1990 entry is at page 4. The patient’s data relating to Child A you find at page 11. The patient’s data relating to Child B you will find at page 12. The discharge letter referring to that entry you will find as a combination of 13 and 14.

Madam, can I take you back to a paragraph 45 of Ms Ellson’s witness statement, which is C8?

“We could not find entries for D (although we searched under [all the names there listed] or for A [though we looked under all the names there listed]. Again I asked if the database contained more information than that shown in the printout. I was told that it did not.

46. I was asked whether either or both databases…”

That is the SC file databases and the recordings database.

“…had ever been copied. Professor Southall indicated he did not know exactly what had happened when the computer was taken away [during the period there mentioned]. He told me, in answer to my questions, that he did not have a copy of either database either on disc or on his laptop. He added that he viewed the information as confidential which is why he would not have it on his laptop.”

The Complainants rely heavily on that last sentence because this is confidential information, acknowledged to be confidential information, by Dr Southall that is being kept on a stand-alone computer in his department, about which, it appears, no one was aware.

MR COONAN: I am sorry to interrupt. My learned friend has mentioned “about which no one was aware”. I just wonder what the evidential basis for that is.

MR TYSON: I also said the words “it appears”.

MR COONAN: The panel, having heard the evidence of Ms Ellson earlier in her witness statement as to the accessibility by others, I just wonder therefore what the basis for the gloss on that comment was.

MR TYSON: I am grateful to my learned friend for interfering with my opening, but I will answer the point that he made. No one was aware, apart from the three people there mentioned earlier in the witness statement, and in particular not other clinicians, hospital administrators or patients, which is the gravamen of the charge.

MR COONAN: I am grateful.

MR TYSON: Paragraph 47:

“I asked about the request which I understand the Trust made some time ago that all material relating to children who were not patients at North Staffordshire Hospital should be removed from Trust property. Professor Southall said that he had not fully complied with this request. He said that he had removed the physical SC files for the relevant families…”

Those are the paper files.

“…(indeed his solicitor confirms that she now has (from Professor Southall) the original SC files for H and A). He said that he had removed such SC files to a secure storage site.

46. Professor Southall said that he had refused to remove the tapes. He felt they should remain at the hospital secured in a secure room. Following discussion with the Trust it was agreed that the tapes could stay. In relation to the databases, he could not easily remove part of them: he agreed that the databases included children who had and had not been Trust patients.”

I need not take you to any more of Ms Ellson’s statement.

To go back to my last submissions on this matter, we submit that all this reveals a truly extraordinary story that on his own computer in his department not linked to the hospital computer, Dr Southall held all these secret files on these children. What is more extraordinary, in our submission, is that in the cases of Child H and Child A, held on his North Staffordshire computer, these were children who had never been treated at North Staffordshire. These children were old Brompton Hospital patients. One has to wonder at the motive and reasoning behind holding these files.

There is one document that I need to refer you to in C3 and it is C3, Section 7(d)(i). This is a document from the National Heart and Lung Institute, which is at the Brompton Hospital, which is where Dr Southall was working at the time. It is a document dated 12 December 1990. It is a letter from a paediatric registrar, Dr Jawad, copied to Dr Southall and the ward clerk.

THE CHAIRMAN: I think it is 14th December, Mr Tyson. You said 12th.

MR TYSON: I do apologise. It plainly does say 14th .

“Dear Madam,

This is to inform you that following discussions with Dr David Southall, it was agreed that all the cases admitted for overnight monitoring will not require any discharge summaries except for the complicated cases which require further procedures and management. Dr Southall is quite happy with a copy of the computer sheet which usually sufficiently states the aim of the admission and the possible diagnosis and the recommendations. The computer sheets are usually typed and provided by Dr Southall’s department which should be filed in the notes by the Ward Clerk.”

We would say and submit that that is evidence as to the proper practice that the computer discharge summaries should be filed in the notes and were not so filed. There is a manuscript on the right hand side which appears to say “Copy of all [overnight] monitoring records must go into [hospital] notes”. That is the manuscript down the right hand side. The significance of this letter and that manuscript addition will have to be explored in the course of the evidence.

So my submissions on the computer aspect of this case are effectively six: firstly, that the advice in 1990 at the Brompton Hospital was that these records, certainly the records or discharge letters, should be filed in the hospital medical records; secondly, none of these computer printouts were filed in the hospital medical records either in the case of A and H at the Brompton, or C and B at North Staffs; thirdly, and I will not take you to it now but I just ask you have a look at one of them that appears in the paper special cases file, and that is the one relating to Child D at C6 at page 313; the fourth point I would like to make is that the existence of these computer records has only been discovered and disclosed late this year; the next point I wish to make, they are clearly medical records; and the next point I would make is that they are also clearly secret medical records held on these children, of which the complainants, it appears, the hospital administrators and certainly subsequent clinicians were completely unaware because they were just held on this computer, and this we say is inappropriate.

Madam, you will be delighted to hear that that is the end of my opening submissions.

The question is where do we go from here?

THE CHAIRMAN: Thank you, Mr Tyson. I understand we now need to discuss the matter of the Panel reading.

MR TYSON: Can I tell you what my suggestion is. My suggestion is that the Panel reads the two medical reports of Professor David, which are to be found at C3, at section 7(a) and 7(b). They should also read Dr Southall’s explanation of the SC files, which they will find at C2, section 6©. In my submission, you should not at this stage read anything more. You do not need to read anything more, although I cannot stop you. You are the masters of your own procedure and you prepare for this case as you think fit, but, as I said, if you want to glance through Appendix 1 and Appendix 2 to familiarise yourself with them, C9 and C10, fine, but please do not get bogged down in the detail. All you need to do is answer the questions that I posed in relation to them. Do not try and understand, as it were, everything about each of the individual children’s things, because you would get bogged down and it is not relevant to the issues that this Panel has to decide under the heads of charge. So my reading course to you is certainly the two reports of Professor David, certainly Professor Southall’s explanation of the SC files, and glimpsing at C9 and C10, and that, I anticipate, may take a bit more of this morning.

THE CHAIRMAN: Thank you, Mr Tyson. I think obviously, if I can address this to both of you, the important thing is what the Panel is understanding at the next point where evidence is being given so that they have got appropriate background, and obviously, as you say, the Panel itself will set for itself certain objectives, but we appreciate your guidance, both of your guidances, on what would be helpful for us so that we can appreciate the next stage of the evidence.

MR TYSON: Can I give you the witnesses in the order that I intend to call them, which may assist you. I intend to call, as soon as you have finished your reading, Professor David, and I anticipate that his evidence will last until Friday evening, and he can make himself available, if we cannot finish him this Friday, in the afternoon of next Friday by video link from Manchester. Next week I intend to call Mrs A, Mrs H and Mrs D, and, subject to conversations that I have with my learned friend, the administrator of Brompton Hospital, or the Head of Administration. Then I will have to read out various agreed statements, but those are going to be my live witnesses, and I anticipate, again subject to what my learned friend says, that I might be able to close my case on that basis on about Wednesday or Thursday.

MR COONAN: The solicitor Ms Parry.

MR TYSON: I am grateful to my learned friend. I have this poor lady, who has been here for rather a long time, who is the solicitor to Mrs M, who was going to come and give us some evidence. I have sent her back to the county where she comes from, and she can give evidence on Tuesday at nine-thirty. I am grateful to my learned friend for pointing out the witness’s plight.

THE CHAIRMAN: Mr Coonan, what are your observations on how the Panel should best prepare itself for the next stage?

MR COONAN: Well, again, just simply to be helpful, I do not want to make any prescriptive demands at all. What I suggested yesterday remains a suggestion: it is entirely a matter for you the extent of your future reading now. Whether you accept Mr Tyson’s view that a slightly wider reading of the material is or is not relevant, again is a matter for you. You must decide collectively what approach you should take, bearing in mind that the next witness is to be Professor David, and he is bound, with Mr Tyson, at least to look at the documents within C9. So that is the first point. Again, a matter for you. So to that extent I agree with Mr Tyson that some reading is in order, and it may well be it will take, with the break, pretty well most of the morning, I know not.

The next matter concerns the timetabling. I understood yesterday that Professor David was available on Thursday afternoon and Friday, but now I am told it is reduced even more. Quite how inflexible all of this is, of course, is another matter, but what I am saying, looking ahead to this, is that Professor David is clearly going to deal with quite a deal of evidence, and certainly, as you know, I also yet have to deal with – well, you may not know, but I do have to deal with the computer aspect of this, and of course it is an issue which has only arisen relatively recently. I have not had the advantage of having Professor Southall at all for more than a week before this case began.

So there are a number of difficulties, as I indicated yesterday, which I need to iron out before I am in a position meaningfully to cross-examine Professor David. So what I am suggesting is that that matter, in other words the question of when I cross-examine Professor David, we might just leave for the moment. It is not a matter, with respect, that needs to be rigidly factored into the timetable. Subject to that (I do not want to jump too many fences in advance) I go along with Mr Tyson in inviting you to decide the extent of your reading now.

THE CHAIRMAN: Thank you. It seems to me that although it is correct in one sense to anticipate possible problems so that suitable planning can be made, we can do no more than move forward stage by stage, conducting each stage with the time that it takes to do it properly, and then solve the problems if and when they arise.

MR COONAN: I respectfully agree.

THE CHAIRMAN: Thank you.

MR TYSON: It seems to me that my learned friend and I are basically agreed on your reading list.

MR COONAN: Could I just add this? I do not want to go back on any of the cautionary comments I made, because I agree with what you say. My learned friend and I also have outstanding business to conduct in relation to questions that he indicated to you yesterday. They are not questions that can be dealt with in five minutes between us. I have not actually read the material yet, and I have to read it, take instructions and then have discussions with him. In all our interests, and indeed in your interests, we need to sort this out before the close of business on Friday, because it is going to have a knock-on effect with the intention to call any further witnesses, as regards administrators and other witnesses on the question of accessibility, next week. They have to be factored in and arrangements made. So at some stage he and I are going to have to ring-fence time, and I will have to ring-fence time with my client, in order to sort this out. Well, my learned friend shakes his head, but he is the one who has carriage of this prosecution, material is served, I have to deal with it. It is as simple as that.

THE CHAIRMAN: I think all we can do now is move forward a stage at a time. There is now going to be some period when the Panel are engaged in reading. Hopefully this will be time that you can also use for some things that you need to do. After that, when we come back together, I think all we can do is take it stage by stage. You have flagged up your concerns, but we must consider it as it arises. I see that a Panellist has a question.

MR MCFARLANE: I just wanted one point of clarification on one piece of evidence that Mr Tyson was opening on, which was the letter he drew our attention to, which you corrected him and clearly is dated 14 December, and I was just wondering was this letter supposed to have retrospective effect?

MR TYSON: I cannot assist on that.

THE CHAIRMAN: May I suggest that we will reassemble no earlier than two, if that may be helpful. I think the suggestion is that the Panel will need some time. Is that a reasonable suggestion? If, after two o'clock, the Panel still needs more time we will let you know, but let us all aim to begin with Professor David at two.

MR TYSON: I am grateful.

(The Panel adjourned to read documents)

THE CHAIRMAN: Good afternoon. I can confirm that the Panel has completed its study of the documents that have been recommended. I think it is fair to say that we would not be looking to sit beyond five, or very very shortly afterwards, so if we can look for an appropriate place to adjourn when we do reach around five o'clock that would be helpful.

MR TYSON: Madam, before I come to call Professor David, I have just two more bits of housekeeping. They both come with apologies from me. Can I ask the Panel, please, to look at bundle C3 at 7(d)(vi). It should be a document with a bird on it. Can you take out that section because the wrong bird was photocopied, if I can put it that way, and you will be given the correct set now. (Document distributed) Madam, can I apologise for the administrative error that led to the wrong document being put into the Panel’s bundle.

The second and last administrative matter is this, that in your bundle C9, about six documents from the back, you will get to the manuscript note, at page 20 at the bottom there is a manuscript note which you have all seen, and can I ask you to add at the bottom the following words under “needs”: “neuro opinion/local paediatrician”.

For my next witness you will only need, I anticipate, C3, C9 and C10, and I call Professor David.

TIMOTHY JOSEPH DAVID, Sworn
Examined by MR TYSON

MR TYSON: Sorry, there is another document that you will need to have, and I would ask for Professor David to have it, and that is a copy of the heads of charge. (To the witness) Could you give to the Panel, please, your full names.
A Timothy Joseph David.

Q Your professional address?
A Booth Hall Children’s Hospital in Manchester.

Q Are you a Professor of Child Health and Paediatrics at the University of Manchester?
A Yes.

Q For this matter have you produced two reports of which the Panel is aware, and could I ask you, please, to look at Panel bundle C3, which should be in the documentation at your left foot. It is actually out. If you look, please, under tab (a), right at the beginning under 7(a). Is this an extract, relating to medical records, of a report that you prepared for Field Fisher Waterhouse on 24 July 2005?
A It is.

Q You also produced a second report relating to these matters, and can you look under tab (b), please, and is that a report that you prepared in relation to these matters on 10 September 2006 and amended on 31 October 2006?
A It is.

Q Do we see, looking at the first report under tab (a) at page 6, the introduction, and do you there give in paragraphs 1 and 2 a very brief curriculum vitae indicating your qualifications and experience?
A Correct.

Q Just picking up from that, have you been a Consultant Paediatrician for 23 years and have you held the post of Professor of Child Health and Paediatrics at the University of Manchester for 13 years?
A Yes.

Q Are you the editor or author of over 350 medical and scientific publications, and do those include approximately 30 books and conference proceedings?
A Yes.

Q Turning now under tab (b) to deal with any possible conflicts of interest, can I ask you, please, to look under tab (b) at page 5, your paragraph 3. Have you worked on behalf of the General Medical Council in the capacities you set out in paragraph 3 and, as we see at 3.1, have you acted as lead assessor for the General Medical Council in paediatric matters?
A That is correct.

Q Have you participated in the development of aspects of the performance assessment procedures for the General Medical Council?
A Yes.

Q Over the page, have you given lectures on the subject of the General Medical Council’s performance assessment procedures to the people listed in paragraph 3.3?
A I have.

Q Including to your Royal College?
A Yes.

Q Have you trained members of the General Medical Council’s referral committee?
A Yes.

Q Have you acted as specialist adviser for a number of the General Medical Council’s committees, including the Health Committee and the IOC?
A I have.

Q Have you also been involved with General Medical Council activities in the Professional and Linguistic assessment Board in various capacities?
A Yes.

Q Have you also acted on behalf of the General Medical Council’s main solicitors – Field Fisher Waterhouse – as an expert in cases that have come before the Professional Conduct Committee and the Fitness to Practise Panel?
A I have.

Q In relation to Professor Southall himself, have you acted in the past as an expert in previous proceedings involving Professor Southall?
A Yes.

Q Have you also acted in some child protection cases in which both you and Professor Southall have been involved?
A I have. I am not really sure that these last two paragraphs, 12 and 13, really come under the heading of previous work for the General Medical Council. These two really have no connection with the General Medical Council at all.

Q They show involvement with the doctor in this case.
A Correct.

Q Did Professor Southall contribute a chapter on home oxygen therapy to a book of which you were the editor?
A He did.

Q In relation to any children in this case, have you reported in another capacity in relation to Child D in the circumstances that are set out at page 28 of your second report at (b) at paragraph 65?
A Yes.

Q In relation to Child H, looking at page 58 of your second report under Tab (d), were you involved in that case many years ago?
A Yes.

Q Dealing, Professor David, with matters of paediatric medical records, would you indicate to the Panel the basis upon which you felt able to write what you have about these matters for the Panel?
A I am not sure I follow the question.

Q Can I take you, please, to your first report at page 223?
A Yes, paragraph 345.

Q You indicate there that you have no special expertise in the subject of hospital medical records and the regulations that govern them and their use. The question I ask, therefore, is on what basis do you feel able to provide the guidance you have to the Panel?
A Really based on my experience as a doctor, and I have also looked at the medical literature, when I was preparing the original report, to see what I could find in relation to regulations or advice in relation to the preparation of medical records.

Q So is it a combination of experience and what you have researched for this report?
A Yes.

Q Can I go, please, to your first report at page 222, paragraph 344? Do you there set out 10 questions that you asked yourself and in the body of the report do you seek to answer those questions?
A That is correct.

Q Can I turn to the first question which you asked yourself, which was about medical records, and ask you please to look at page 227, paragraphs 355 and 356, and do you there set out your understanding of what the term, “hospital medical records” encompasses?
A I do.

Q When in paragraph 355 you say,

“a record is anything which contains information (in any media)”,

what media did you include?
A I did not specify. It covered all media.

Q Does that media include information that is held on a computer?
A Yes.

Q You set out at paragraph 357 the essential purposes you saw of medical records, at 357.1 as a factual record of information; point 2 as a means of communication. At the second sentence you say,

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

Would you like to expand on why notes are important for, as it were, future clinicians?
A The medical records of a patient are the only way that other healthcare providers can be aware of a child’s previous history.

Q Over the page at 357.3 you set out that they provide important information about past illnesses, and in 357.4 you come to legal documents which are an essential resource. Can you indicate in the case of paediatricians why the legal aspect becomes important?
A I guess there are three. The first would relate to a complaint, if the hospital receives a complaint. If there is litigation then clearly it is essential that the medical records are intact. The other kind of situation which is particularly relevant in a child protection context is if the child is subject to care proceedings or there are criminal proceedings ongoing in relation to injuries to a child. So for those three main reasons the integrity of medical records is extremely important.

Q In those last two matters, child protection cases and criminal cases, in your experience is there full disclosure of the notes to the relevant parties?
A It is essential that there is full disclosure.

Q How essential is it that there is not only disclosure, but full disclosure, of everything possible?
A The answer is that a case can hang on one piece of paper or one laboratory result. I can give examples of that but that is the simple fact: the devil is in the detail, or may be in the detail.

Q I will come back to that aspect in a moment. At paragraph 358 you deal with a Department of Health circular in 1999 which sets out various principles. It will doubtless be pointed out to you that this document is dated after some of the patients involved in this case. Do you have any observations of the value of the guidance notwithstanding that?
A I do not think there is anything in paragraph 358 that is new. This merely summarises and codifies what was existing understanding. People just had not bothered to put it together in this way. I do not think there is anything new here.

Q Paragraph 361, page 230, you set out a section from one of the appendices of that circular:

“4.1 What are the general principles to follow?”

You set out,

“Records are valuable because of the information they contain and that information is only usable if it is correctly and legibly recorded in the first place, is then kept up to date and is easily accessible when needed”.

There are various other references to the question of accessibility, but who should these records be accessible to?
A Any health professional with legitimate access to the records – doctors, nurses, other members of the healthcare team in the hospital.

Q Other than healthcare professionals have others got the right to see these documents?
A I do not know the exact regulation, but patients have the right to see their own medical records and can apply to see them.

Q You set out at 4.2,

“Good record keeping ensures that”,

and we see the third bullet point, the point has already been covered in a sense, that,

“those coming after you can see what has been done, or not done, and why;
any decisions made can be justified or reconsidered at a later date”.

In your view are those both important bullet points in record keeping?
A They are.

Q Over the page, under paragraph 4.4 of the guidance we see it says,

“It is therefore vital that you always”,

and then the Panel can read the first two bullet points. I want to take you to the third bullet point,

“It is therefore vital that you always…put it where it can be found when needed”.

Is that an important principle in your opinion?
A It is, and it is simple common sense. There is no point in having a medical record if it is not accessible to other people.

Q Over the page at paragraph 363 you make the statement,

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

Do you stand by that statement in these proceedings?
A That has always been the case and has always been regarded as very important.

Q I now take you to Question 4, which you answered at page 239 at paragraph 389.
You ask the question:

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

and you indicate at paragraph 390:

“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.”

Then you lead on to a discussion that in some units in-patient medical records are left by the bedside, and at the bottom of the page you indicate that this could lead to a problem, and you say:

“…this open system does not lend itself to clinical situations when a full sharing of clinical thinking with parents could be counter productive.”

You go on, at paragraph 391:

“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.”

Just having laid that trail, as it were, are you dealing in those two paragraphs only with an in patient situation?
A Yes.

Q Once the investigatory aspects of child protection are, as it were, over – and I think it is a phrase you used in one of your reports, “the cat is out of the bag” – is it appropriate then to keep the records separate or to return them to the medical records?
A I do not think the cat being out the bag is anything to do with it. The expectation is that the two bits of records would be reunited once the child went home.

Q After the in-patient stay in which they had been kept separate?
A Yes, correct.

Q Would the separation then be only for that short period while the patient was an in patient?
A Whatever length of period the child was in hospital, yes.

Q Can I take you, please, to your answers to question 5, which we pick up at paragraph 397 at page 243? Here the question you asked yourself was about separate case files and the question you asked yourself we can all read there. You put at the bottom of page 243:

“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 paragraphs 398 and 3999 you indicate that you do not know the origin and purposes of these SC files and I will come back later to Professor Southall’s possible explanations for them. In paragraph 400 is the key, that much depends on the purpose of keeping such files.
A That is what I have written, yes.

Q In paragraph 400 you deal with the question that if they were to provide a failsafe, that is not something that you would endorse, and at paragraph 401 you deal with the question that if they were for the purposes of research then other considerations come into play, such as whether research ethics approval or the like has been obtained and informed consent has been obtained.
A Correct.

Q In paragraph 402 you deal with the question if they were kept purely for administrative convenience to assist at home, as it were, when working on reports, and you say it is hard to see what criticisms could be made.
A That is right.

Q Then you carry on at paragraph 403 to say what you there say, that you are not aware of any regulation prior to 2000 that disallowed paediatricians from keeping separate photocopies of selected medical records. You go on to say:

“… in the period under consideration it is unclear to me on what basis one could seriously criticise the practice, provided:

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

and the second bullet point relates to the matters not being in any way connected with research unless appropriate consent had been obtained. Can I ask you about the first bullet point, that the files contained only carbon copies or photocopies and did not ever contain any original medical records for a patient? What is the risk or potential risk, Professor David, of having an original medical record not available elsewhere and in a separate file?
A The risk is that that information is unavailable, either to other people looking after that patient or subsequently in any litigation or court proceedings.

Q I think you said earlier that you could illustrate this, and perhaps you would like to illustrate the potential risks to the Panel?
A I believe you yourself referred to Mrs Sally Clark, who served three years in prison before a single set of results became available and she was released on appeal. You could not get a more graphic illustration. I can think of others that I have been involved in; I can think of one particular, very complex child protection case, where in fact the whole court proceedings, the care proceedings, revolved around a single piece of paper, and there was one very alert barrister who spotted a piece of information on that which really had a major effect on the outcome of that hearing. It was a good illustration that it may just be one piece of paper that has some key bit of data that affects the outcome of a case.

Q That was question 5. Can I ask you, please, to go to your question 10, which we see at paragraph 414 at page 247? This covers the situation where a paediatrician has either removed or failed to place an original medical record in the child’s medical records and there is no copy or anything else actually in the medical records, so that the information is simply not there or the document is simply not there. You make your criticisms of that practice in paragraphs 415 to 417 and you use words such as “tampering” and “quite unacceptable”. Would you wish to expand upon any of those matters to the Panel?
A You could not practise medicine in this country without being aware of pretty constant warnings that you get from defence organisations who send circulars of cases and warn about the importance of keeping good records, the importance of keeping records intact and the need to avoid removing items from medical records. I have not brought any examples with me, but it has been a constant theme and as long as I have been practising medicine people have been warned about the dangers of interfering with an original set of medical records. The integrity of those records is important and the word “sacrosanct” has been used, and that is how I was brought up, if you like, that they really were absolutely fundamental and I cannot think of the number of warnings that I have seen reminding doctors of the importance of that.

At the bottom of page 247 in paragraph 415 you deal with the issue of accessibility or lack of accessibility to those involved in the care of the child if such a practice is made.
A That is right.

Q Finally, on this section you see that in paragraph 418 you refer to a policy there which in turn refers to a policy called the North Staffordshire NHS Trust Policy on Clinical Record keeping. Since the date of that report in July 2005 have you been asking for a copy of that policy on clinical record keeping?
A I did ask the instructing solicitors for a copy.

Q Do you understand that the instructing solicitors have been seeking to obtain a copy?
A That is my understanding.

Q Have you in fact received any copy of that document?
A No.

Q Can I ask you, please, to go to your second report now, which is under tab (d) in the same bundle. Can I take you to paragraph 10 of that report on page 9. Do you there set out the purpose of your second report, namely that you were asked to consider whether the items in the Appendix One that you then had, if I can put it that way, were medical records, and secondly, were you asked to comment on the responses provided by Messrs Hempsons on behalf of their client, Professor Southall?
A That is correct.

Q Can I ask you, please, to go to the heads of charge, which should be in the yellow pages down to your left, and can I take you to the documents in Appendix One, or the Appendix One with which you have been provided?
A I have got both copies. By that I mean I have got the copy I used originally plus the latest version.

Q Just for the sake of the record, is the latest version the one that I gave you this morning?
A Yes.

Q For the sake of the record, can I indicate to the Panel that the one that Professor David saw this morning is the one I opened and gave to you at the beginning of my opening, if I can put it that way. (To the witness) Can I ask you, please, a global question in relation to the documents in Appendix One. Can each and every one of those items properly be said to be medical records that fall within category 10 of your analysis?
A Yes.

Q I need to take you to some in particular in order to indicate to the panel where you have made particular comment on any particular document. Will you look at the document C9? Can I tell you that C9 is all the documents in Appendix One in the same order as they appear in Appendix One? With any luck, the first document that we see in C9 will relate to Child A, and you deal with that particular document at paragraph 27 of your second report that the panel has at C3(b). Do you have any problems, Professor David, with that being a medical report?
A No. It is a straight forward MRI report.

Q Where should one find it?
A In the medical records.

Q When we refer to medical records, are these the medical records relating to the child at the hospital where the child there is?
A That is correct.

Q Dealing with the third page in this document, we see that it is a referral letter relating to a child we know a Child B, addressed to the Registrar, to Professor Southall, from an associate specialist there named. Do you have any problems with any description of that document, Professor David, as to whether it is a medical record or not?
A No, that is a medical record.

Q We then turn to Child D, and just glancing at Appendix One, do we see that principally there are three aspects to that: that it is incoming correspondence, copies of letters between third parties; and outgoing correspondence?
A Correct.

Q Can I take you to your second report where you consider the matter of clinical correspondence generally and incoming correspondence in particular to paragraph 68 of you report at page 29? Do you set the tone to your subsequent discussion by referring to the letter from Hempsons, which the panel will have seen, which is at C2 (6)©, where they say that these letters related to child protection issues and therefore there was no obligation to file the documents in the medical records? Do you comment on that suggestion, in particular starting at paragraph 73 of your report?
A I comment on it starting at paragraph 69.

Q Is part of your conclusion in the middle of the page in paragraph 73?
A That is correct.

Q Do you conclude in the middle of paragraph 73:

“… I would classify the above listed documents as items that should all rightfully belong in the patient’s medical records.”

A That is correct.

Q Do you expand on that aspect in paragraphs 75 and 76 of your report on page 31, where you indicate that it was

“particularly important that correspondence between clinicians that voices child protection concerns should most assiduously be placed in the patient’s medical records”?
A Correct.

Q Would you like to tell the panel a bit more about way you think that they should most assiduously be placed in the patient’s medical records?
A I think it is self-evident. If somebody else in the hospital is looking at the child’s medical records, it is obviously fundamental that that other member of staff is able to see that there are child protection concerns. It would obviously be an important aspect of the case, and anybody looking at those records needs to be aware of that.

Q Because there are lay and other members on the panel, why is it important that clinicians should know that there may or may not be child protection aspects to a case?
A It is a fundamental piece of knowledge to members of the health care team at the hospital. They need to be aware that the child is suffering from an illness or has injuries where there is a suspicion that these have been caused unnaturally in some way. It is important that everybody looking after that child knows that. One of the basic principles of child protection work is good communication. That is a thread that has come out of all the inquires that have been held into child protection cases that have gone wrong or where bad things have happened, and the need for good communication between professionals, which may be positive – a doctor reporting a worry – or it may be simply that things are in the records for people to see. It has been repeatedly stressed.

Q At paragraph 76 you look at it from the point of view of what was in the patient’s best interests and you conclude in the third sentence:

“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.”

Is that broadly what you were saying when I asked you that?
A Yes, I think that sums it up.

Q In relation to the category of documentation in Appendix One relating in Child D to original copies of letters between third parties, do you deal with that at paragraph 77 of your report just under the paragraph we have been looking at, and do you indicate that there is no difference in principle from that which you have been discussing under incoming correspondence?
A That is correct.

Q To complete the picture, at paragraph 103 of your report at page 52, do you make a similar point about outgoing correspondence basically falling into the above category, and do you make the additional point there that most of these documents emanating from Professor Southall 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.”

A That is correct.

Q I need to take you to some, but by no means all, of the records relating to Child D in the medical records because you deal with them in your report. Can I ask you to go within C9 and, after about five pages, where you will find that we start coming to correspondence, for instance, from Southampton University Hospitals, with numbers and we see the first number is 281.
A Yes.

Q Going through these numbers, which are descending, I would ask you to look at page 229, which I hope will be a letter from the Community Health NHS Trust there listed from a Dr Whiting, and accompanying it should be a chronology.
A I have that.

Q Keeping that file open a moment, can I please take you to your report where you analyse that letter and the chronology. It is your second report at paragraph 107, which we find at page 54 of the report. There are two aspects I want to ask you about, both of which you cover in the section of your report dealing with this letter, which goes from paragraph 107 to 117. Dealing with the aspect as to whether they are medical records or not, could I take you to paragraph 116 at the bottom of page 56 and the top of page 57? You state that –

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

A Correct.

Q You repeat the point on its own at paragraph 117 about where the letter and the accompanying chronology should be filed in the medical records.
A That is right.

Q Are there aspects of this letter concerning the fact that you found both two copies of the letter and two copies of the chronology when you were going through the SC file?
A That is a fact.

Q This was picked up by an alert medical member of the Panel, who asked about it, and do you (without going into any details), do you deal with your discussion about the fact that there were two copies of either at paragraph 108 in your page 54?
A I did.

Q You conclude that discussion about the two copies and the possible consequences of that in between paragraphs 108 and 111?
A Yes.

Q If you are asked about the matter, you can expand upon those paragraphs, if necessary?
A Well, I can try.

Q Dealing with some of the third party letters relating to this child, we see that the first one referred to in Appendix 1 is the letter 2(a) from Professor Strobel to Dr Rogers dated 5 September 1995, and we see that that is a matter upon which you comment in particular, and I may, because there is independent pagination of this document, but it can be found about halfway through C9, but I can take you to the original if this is otherwise rather burdensome, and perhaps that might assist. The relevant original file I would ask you to look for is C6 at page 273 and 274, and you will be relieved to hear that C6 is actually paginated in ascending order. Do you have that letter, Professor?
A I do.

Q Could I ask you to keep that letter open, and go in your report, please, to paragraph 80, your second report in relation to this case, and that is at page 32 of your second report. Can I take you first to paragraph 79 on page 32, where you set the scene, as it were, where you say:

“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 concerns, all subsequent correspondence between doctors could be classed as relating to child protection issues. I mention this only to say that I do not agree with the logic.”

That remains your view?
A It is.

Q Then you say at paragraph 80:

“Rather than attempting to categorise each item ….. let us take ([for] example) the letter dated 5 September 1995 from Professor Strobel to the GP Dr Rogers ….. What I have set out below is a list of the components of this letter”.

Then do you seek, in all the sub-clauses of paragraph 80, from 80.1 down to 80.20, do you set out the aspects of this letter as you have analysed it?
A Yes.

Q It is pointed out at 81 that the view of Dr Southall is that it related to child protection matters and accordingly it was obligatory for this document to be filed in the medical records. You set out in the next four or so paragraphs why you disagree with that, but perhaps if you can just make it clear to the Panel orally as to why you consider that this letter, as an example of many others, should have been in the child’s hospital medical records.
A Well, I am not sure I can improve on what I have written. I mean, I have said in paragraph 82 that I did not see how one could categorise what I call the ingredients of this letter, which are listed in paragraph 80, I did not see how one could categorise those as relating to child protection issues.

Q Perhaps I should take you and the Panel to paragraph 85, after your analysis in the previous paragraphs. You say:

“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 growth, 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.”

Have you said it all there?
A It sums it up.

Q I need to take you to two other matters in relation to this child in particular. In the outgoing correspondence you will see at number 3, we see letters ©, (d), (f), (g) and (h) – perhaps I will take those again, letter 3©, (d), (f), (g) and (h) – all, as you have noted, appear to be letters written to a member of social services. Can we just look at one, for example, while we have C6 open, and can we look, please, at page 277 at C6, which is letter 3© in the appendix. We see that this is a letter from Professor Southall, as he then was, making a number of points, and copying his concerns to Professor Strobel at Great Ormond Street, to Professor Warner at Southampton, to Dr Rogers, who was the general practitioner, and to Dr Connell, who was the paediatric consultant at the hospital there mentioned. Having shown you that letter, can I take you, please, to your report in relation to this matter, and it is at paragraph 105 at page 53. Do we see there, Professor David, that you deal globally with all those letters, where you say that:

“The letter to Mr Banks, Social Services Manager [dated – and it gives a date] 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 in the child’s hospital medical records.”

You make the same comments in relation to all the other letters that are in the appendix.
A That is correct.

Q So does it make any difference as to whether it is “clinical correspondence” that one of the recipients happens to be a member of the social services department at all, if the information is important clinical information?
A No. We have already made the point that it is important that other members of the healthcare team are aware that somebody has child protection concerns.

Q The last matter relating to this child is again if we look, staying in C6, at 313, and there are several items and it is item 4 in Appendix 1 relating to this child. Looking at this document, Professor, is that a typical medical record?
A It is.

Q Dealing with the question of clinical correspondence and the like, have you had the opportunity of looking at a number of protocols with which you have been provided in this case?
A I have, and they are listed in this report, I think they are at paragraph 88.

Q Yes. If we go to your second report at paragraph 88 at page 37, and do you list, as we can see by 88.1 onwards, do you list over the next pages all the way up to page 44 nine separate protocols which you have looked at?
A I do list them.

Q Sorry, it even goes further than that. There are thirteen different protocols you looked at, or thirteen matters relating to medical records, going up to page 47.
A Yes.

Q Can I take you, please, to paragraph 89 at page 48. Were you assisted by studying those protocols that deal with matters with Brompton Hospital and the North Staffordshire not only hospital but also Area Health Authority, was there anything in those protocols that you examined that helped you find the answer to whether or not it was appropriate to have clinical correspondence without the ordinary hospital medical records?
A Well, the answer to the question is the first sentence of my paragraph 89:

“I cannot find an instruction in these documents that clinical correspondence (such as the letter from Professor Strobel to Dr Rogers described above) should not be filed in the patient records once child protection concerns had been raised.”

Q Going further than that, Professor David, you did not find anything in the protocols and the like which you were provided; have you found any such guidance in any other document?
A No, I have not.

Q Have you looked for other guidance elsewhere?
A Well, in my original report I did my best to look at guidance on medical record keeping.

Q Just to put it another way, as you are aware from having read the Hempsons’ letter of January 2006, the basic line, if I may put it that way, in relation to this clinical correspondence, was that it was appropriate to file that elsewhere. Have you found any protocol, either local or national, that supported that line?
A I could not find one.

Q I will now take you in Appendix One to Child H. The Panel can see matters relating to Child H right at the back of C9. You will find that about 15 pages in from the back. The document has the number 25 at the bottom and is entitled, “Dr D P Southall Cardiothoracic Institute”.
A I have that.

Q It is a questionnaire pro forma which is filled in in manuscript. Can you look at your second report, while keeping that page open, at paragraph 141? To put it in context perhaps we ought to look at page 64, paragraph 136. Between paragraphs 136 and 140 do you analyse the nature of that document?
A I do.

Q Do you come to the conclusion that you do at paragraph 141, that,

“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”.

A That is what I said.

Q If you carry on in the numbering in C9 you should get to a manuscript document in what appears to be a clinical document with the full names of the child at the top and it is manuscript throughout. It has page 20 at the bottom.
A Yes, I have that.

Q You deal with this document in your report, Professor David, at page 65, paragraphs 146 to 148. We see from the letter written by Hempsons in January 2006 that the suggestion is that this is an entry by a Dr Samuels in March 1999. Do you have any observations on whether this document should have been not in the child’s hospital medical records and only in the child’s SC file?
A My views are summarised in paragraphs 147 and 148. It is quite clear that these are medical notes and should have been in the medical records.

Q Dealing earlier with clinical correspondence relating to an earlier child, you indicated that this correspondence should have been in the child’s medical records. I suspect with correspondence at least one could see it in another file of the recipient or the sender. Does that apply to this kind of record?
A I think what you are trying to do is to distinguish between an item that is to be found in other hospital records, like a letter from Great Ormond Street to this hospital, in which case you ought to find a copy in the patient’s medical records in both hospitals, but the difference here is that this is clearly a document that is handwritten at one hospital, and it is either in those records at that hospital or will not be available for anybody to see. So it is in a slightly different category, if you like.

Q In terms of seriousness, so far as the Panel have to consider that concept, as it is in a different category and not available in any other hospital records, is it a more serious document to be found here than anywhere else?
A I would not say that. I think a patient’s medical records should be intact, period, and either everything is in them or everything is not. Whether it is a handwritten note or a typed note, the integrity of the record has been lost and the principle is that.

THE CHAIRMAN: Mr Tyson, we are looking to have a short break. Are we nearly at a point where it would be convenient to do so?

MR TYSON: I should like to finish Appendix One in relation to Child H and then we can go on to other matters. I suspect I shall be no more than five minutes. Going back to Appendix One, we see after that manuscript note which the Panel have in front of them, three letters. Page 48 is a letter from Dr Dinwiddie to Dr Southall. The next letter is a letter from Dr Weaver to Dr Southall, and the third letter, at pages 55 and 56, is a letter from Dr Weaver to Dr Southall. Do you deal with these letters in your report at page 66, beginning at paragraph 149?
A Yes.

Q Do you analyse them at pages 66 and 67 and come to your conclusion at paragraph 153 on page 68?
A I do.

Q You say,

“these letters, which all contained important information, should have been filed in the patient’s hospital medical records”.

A That is correct.

Q After the Dr Weaver letter of 12 June of 1990 there then comes a manuscript letter numbered 144 – the penultimate document in C9. It is a manuscript document dated 25 July 1991 addressed to Dr Southall from the senior registrar to Dr Weaver. Is this a medical record?
A It is.

Q Should it have been in the child’s clinical records?
A It should.

Q The last letter which we see is one numbered 332. Do you comment on this letter at paragraphs 157 to 160, pages 68 and 69 of your report?
A Correct.

Q Do you conclude that, notwithstanding the references to a foster family and a supervision order, this is a letter that should have been filed in the patient’s hospital records?
A That is correct.

MR TYSON: Madam, that might be a convenient time.

THE CHAIRMAN: We will adjourn now for 15 minutes.

(The Panel adjourned for a short time)

MR TYSON: Professor David, we have just been going through Appendix One of the heads of charge. In relation to Appendix One can I ask you to look, please, at the heads of charge themselves? We have been looking initially at head of charge 10, which is creating or causing to be created an SC file where the allegation is that certain original medical hospital records were placed. You see the allegation is that the cited medical record is not elsewhere in the medical records. The allegation in head of charge 11 is that the placing or causing to be placed such original medical records in an SC file, (a) amounted to tampering, and (b) caused such item to be inaccessible to others. You see that in head of charge 12 there are various descriptions of the actions set out in heads 10 and 11 above. I wonder whether, despite the fact that I am fully aware that this is the Panel’s function, as to whether these descriptions are correct or not, you had any observations on them?

MR COONAN: I have not had any notice of this, it is not in the Professor’s report, and as my learned friend has rather indirectly put to you, this is a matter for the Panel. It has nothing to do with Professor David.

THE CHAIRMAN: I think the Panel has some concern. Indeed, the Legal Assessor took that view as well.

MR TYSON: Perhaps I can make my own submissions and then you can rule against me, or otherwise, as the case may be. In my respectful submission, it is entirely proper and happens in all of these cases that an expert comments on appropriateness. He can comment on whether any action is appropriate or inappropriate and he can also, in my respectful submission, comment on 12(a), but certainly 12(b), in relation to his own expertise. He is permitted, and people usually do, in my experience in these kind of hearings, and the expert is permitted, with due deference to your fact-finding function, which is exactly how I placed it, to comment on the appropriateness or inappropriateness.

THE CHAIRMAN: Perhaps it depends a little on how you phrase it, Mr Tyson.

MR TYSON: I will phrase it as openly as I can.

THE CHAIRMAN: I see that there is still some expression of concern. If you put your question, then I will see whether there is any formal objection to it or advice against it.

MR TYSON: I will put the question, but I will not expect Professor David to answer.

(To the witness) In terms of the heads of charge set out in paragraphs 10 and 11, Professor David, if all found proved, would you consider the actions or otherwise of the doctor to be appropriate or inappropriate?

MR COONAN: I am sorry, I do object to that.

MR TYSON: I will not waste any time on it. My learned friend has made his point and I have made my point. Let us get on with it.

(To the witness) Can we please now look, Professor, at heads of charge 15 and 16, which relate to the documents held on the computer system at the academic department of paediatrics. Can I ask you to look at C10?

MR COONAN: Could I just mention one point. I am not stopping my learned friend nor inviting you to stop him, but I have not had any advance notice of any of this which I anticipate to follow. As I say, I am not objecting in principle, but I do not know what is coming and nor do you, because it is not in the Professor’s report. That may or may not cause me difficulties, but we will have to wait and see.

MR TYSON: I am intrigued by what my learned friend has to say and I would ask him to bear with me as to how I put it.

MR COONAN: Yes, certainly.

MR TYSON: (To the witness) Can you look, please, at C10. Have you had an opportunity, as you set out at page 45 of your report, to see the documents in C10?
A I have.

Q To be fair to you and to my learned friend, there are two documents there that you may not have seen or you would not have seen at the time you wrote the report because they had not actually been produced, which were the ones related to Child B. I do not know if your C10 is paginated, but they are at pages 12, 13 and 14, the last three documents in the bundle.
A Right.

Q The format will not surprise you, but perhaps you can just look at that. To use your own expression, Professor, the exam question is: Are each and every one of the documents in C10 medical records?
A They are.

Q Should they have been in the child’s hospital medical records?
A They should.

Q Can I ask you, please, to look at page 44 of your second report and paragraph 88.9 and could I also ask you to look, perhaps keeping your finger or whatever there, in C3 to section 7 under the tabs and to get to subsection (d) and tab (i) within that (d)?
A I have got it.

Q You should have in front of you a document from the National Heart & Lung Institute, dated 14 December 1990. In your report at page 44, 45 and 46 do you deal with your observations on that letter?
A I do.

Q In relation to the reference in the letter in (d)(i) which I just took you to, when it is said, three sentences in:

“Dr Southall is quite happy with a copy of the computer sheet which usually sufficiently states the aim of the admission and the possible diagnosis and the recommendations. The computer sheets are usually typed and provided by Dr Southall’s department which should be filed in the notes by the Ward Clerk”,

that is a document that relates to a possible diagnosis and recommendations. If you look, please, at C10, and turn to the third document in there, is that a document that indicates the possible diagnosis and the recommendations? Does it have the ability so to do?
A It says, “Your patient was referred with” and there is no comment as to that, and it says that a 12-hour overnight recording was performed and it describes what the instrument was and what measurements were made, and the result was normal recording. The clinical impression was no comment and the recommendation, there was none. “Follow-up: Control Recording if CE occur.” That is it.

Q This kind of letter, of which another example or other examples we can see under the last or the penultimate page in this document (page 13) appears to be the same proforma the patient was referred with, and then gives what the patient was referred with, that a continuous recording was made, the clinical impression given and a recommendation. Do you see that?
A Yes.

Q In relation to, say, that sheet at page 13, in your view is that kind of document the one being described in the document dated 14 December 1990, the letter from the National Heart & Lung Institute?
A I have said in my report I assume it is. I do not know that for a fact.

Q Turning now to a completely separate matter, and that relates to heads of charge 7 and 8, this is the final matter I will be dealing with, Professor David. You see it relates to a letter involving Child H that was written by Professor Southall to a Dr Dinwiddie. Could you look please at bundle C2 at (i)? Do you have that?
A I do.

Q This is the letter referred to in head of charge 8 and the allegation in relation to this head of charge relates to, on page 24, the third person who is therein copied, namely a consultant paediatrician at the Royal Gwent Hospital?
A Right.

Q Have you at one time, Professor David, written a report on this aspect of the case?
A I have.

Q Madam, that is not the report that is before you, may I emphasise. Dealing with aspects of what you say about this case, looking at head of charge 8©(i), in which it is said:

“you did not seek, nor obtain, Child H’s parents consent,

i. to the fact of involving a local paediatrician in Child H’s care …”,

is it your conclusion that that is a purely factual matter for the Panel to decide one way or the other?
A Correct.

Q In relation to the issue of consent generally, could you indicate to the Panel, please, your views about involving another paediatrician in the child’s care? What kind of consent is required or what kind of information is required to the patient, in your opinion, to provide a valid consent?
A If the consent is to be valid then the person giving the consent has to know what the contents of the letter will be, or at least what the thrust of those contents will be.

Q We see in the letter at page 24 at the bottom of the first major paragraph, it says:

“We also feel that it is vital that [Child H] has his overall care managed by a local paediatrician.”

We see that a paediatrician is listed in item number 3 there. In your opinion, is a letter such as this, a copy of a letter such as this, sufficient to enable Child H’s overall care to be managed by a local paediatrician?
A A letter like this would normally accompany a letter of referral, so one might refer a patient to another paediatric colleague, explain why, and then say, “Please see a copy of the letter I have just written which gives you some further information”.

Q If you felt that it was vital that a child had his overall care managed by a local paediatrician, would it be important or otherwise to seek to identify a local paediatrician?
A It would, otherwise the letter risks floating around on receipt with the mail room or whoever not quite knowing what to do with it.

Q Could you look at 2(o) within C2? Do you there see a letter dated ---
A I have not got 2(o).

Q (Copy handed to witness) Have you had an opportunity to read that letter?
A Yes.

Q Do you have any observations on the last paragraph in respect of a local paediatrician?
A The writer of the letter obviously knows the local arrangements and has pointed out that where this family lives is on the border between two units and that either of them would be appropriate. Presumably this person could have suggested somebody suitable at either or both of them.

Q Going back to the original letter at (i), page 24, and bearing in mind the fact that it appears that this patient’s home lay between the two possible hospitals, how does that assist? I am looking at the fact that it was felt by the writer of this letter to be vital that the child’s overall care was managed by a local paediatrician?
A My worry is that this letter might not achieve that objective. It would have been more efficient to have actually addressed it to a named consultant saying, “Please would you look after and get involved in this child”, and, if one was not certain, then one could ring up or write to Dr Weaver saying, “Who would you suggest, given the circumstances here? Which unit and which consultant should I write to?”

Q If you were seeking a local paediatrician to have his overall care managed by that paediatrician, would this letter as the sole accompaniment to the letter to the named paediatrician suffice?
A No, it would not. There would need to be a letter of referral.

Q For the benefit of the lay members of the panel, what kind of things would one include in a letter of referral?
A One would write to a named person and say that one wanted them to either be involved in or take over the care of a particular child, and one would spell out the reasons why one had selected that person and that hospital, and then one would give whatever medical information and background information one felt would help the person one was writing to and one might enclose with that letter copies of other letters that have recently been written.

Q If it was suggested to you that the purpose of this letter was to alert ‘a’ or ‘the’, I do not know whether there is one or more than one, consultant paediatrician in the Royal Brent Hospital of child protection concerns, do you have any comments about that?
A It would not be a very effective means of communication because there is a risk that it does not actually arrive on the desk of a named consultant. It might do. It may well do at the end of the day, but it might be delayed whilst it gets passed around.

Q If it was suggested to you that this letter had been written with the consent of the Child’s H’s patients (sic), does that fit comfortably with the idea of a child protection letter?
A I do not quite follow the question.

Q If it is suggested that the involvement of the local paediatrician was for child protection purposes, and if it was also suggested to you that this involvement of the local paediatrician was for child protection reasons – so I am putting two bases to this question – would the two be compatible?
A I will have a go but I may miss the point of the question, in which case I apologise.

Q If you are not happy with the question, it is my fault and I will re-phrase the question.
A Shall I have a go and then we will see whether we are along parallel lines or not?

Q Pause there a moment. Perhaps you would just like to remind yourself of what you say at paragraph 515 of your report relating to this particular patient.
A Right.

Q Which the panel do not have.
A Shall I read out that?

MR TYSON: Do not read it out. Just answer the question.

MR COONAN: Put the question again.

MR TYSON: If it is suggested to you that the parents have given their consent to the involvement of a local paediatrician, that is basis one, and if it is, secondly, suggested to you that the reason for sending this letter to the local paediatrician was because of child protection concerns, that is basis two, would this letter on those bases achieve either of those aims?
A It is not a referral letter anyway, so it would risk not achieving those aims.

Q If one asks the parents to agree the involvement of a local paediatrician, is that compatible, asking their consent, with ongoing child protection concerns?
A Let me try to dissect that out. If one is saying to parents, “I think it would be a good idea for your child to see a local paediatrician. Would it be all right if I write to them?” and they say “yes”, that is straight forward. If the letter actually says, “The reason I am writing to you is that I am worried; I have child protection concerns” and you have not said that to the parents, then I think that puts into question whether you have actually obtained their consent.

MR COONAN: Madam, these are matters of fact. (inaudible)

MR TYSON: I am about to end this matter and end my examination of this witness. It is all good stuff but you know it is not going to go any further. Thank you very much, Professor David. Those are all the questions I have in chief.

THE CHAIRMAN: I know it falls to you, Mr Coonan, but I suspect you may not wish to begin at this time. Is that so?

MR COONAN: Madam, you are right. In the light of the indication you gave about rising at about 5, I would be extremely loath to start. I would only end up duplicating whatever effort I had put into it tonight. In any event, it has been a long day and I think, in the interests of the doctor, it would be better if I deal with it one of a piece. I can promise to be much more efficient and shorter.

MR TYSON: Madam, I was wondering if I can float for consideration, bearing in mind the extreme difficulties of this doctor being with us after Friday, the possibility of starting at 9 o’clock rather than 9.30 tomorrow?

THE CHAIRMAN: I think I would need to consult the panel about this because without notice, of course, that might not be possible.

MR TYSON: I am not asking for an instant decision. I was wondering, if we retired for a moment, if you could discuss it amongst yourselves.

MR COONAN: Can I help? I do not mind Professor David hearing this. I am not going to be at great length and so I do not think there is much danger of the Professor’s evidence not finishing tomorrow night. I do not give any guarantees. That may help your management on timing for tomorrow morning.

MR TYSON: My learned friend might not be long, and he usually is quite expeditious in his cross-examination, but I know not how many and how wide ranging the questions of the panel might be. An extra half an hour would assist case management, if I can put it that way.

THE CHAIRMAN: Why not give us a couple of minutes and I will consult the panel?

Professor David, I know you are a very experienced witness. I know I do not need to remind you that you should not discuss the case while you remain on oath.

THE WITNESS: I understand.

(The Panel retired for a short while)

THE CHAIRMAN: Mr Tyson and Mr Coonan, the Panel is willing to aim for a 9.00 a.m. start, and that is transport willing, and so on. We think that we can be here by nine as long as nothing untoward happens, and we are happy to aim for a start then, and we think that might assist us, and that we would certainly prefer perhaps to put in any extra time in the morning than in the evening, if that is acceptable.

MR TYSON: I am very grateful indeed.

MR COONAN: Thank you very much.

THE CHAIRMAN: So we will adjourn to nine o'clock or as soon thereafter as everybody is here.

(The Panel adjourned until 09.00 on Friday, 17 November 2006)