GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)
Friday 17 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 FIVE)
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
PROFESSOR DAVID, Timothy Joseph, recalled
Cross-examined by MR COONAN 1
Questioned by THE PANEL 26
Further re-examined by MR TYSON 42
MRS A, Sworn
Examined by MR TYSON 48
Questioned by THE PANEL 64
THE CHAIRMAN: Good morning, everyone. We continue with Professor David.
PROFESSOR TIMOTHY JOSEPH DAVID, Re-called
Cross-examined by MR COONAN
MR COONAN: Professor David, could I deal first of all with a preliminary matter of terminology? In other words, the subject of what is or what is not a medical record. The first part of my cross-examination is not really by way of a series of questions to you; it is really by way of setting out, with your assistance, the platform for the questions which are to follow. Could you take Appendix One, and obviously I invite the Panel to follow this process as well. Do you have that?
A Yes.
Q I am going to proceed on the basis that all the documents in Appendix One, save possibly Item 2 – I will explain why in a minute – in respect of Child H -- that is the manuscript entry on page 20 purportedly signed by Martin Samuels MS, you may remember that; I will not bother to turn it up; the Panel has seen it -- I will proceed on the basis that all those documents, save possibly that one which may have to wait for further evidence, are indeed medical records for the purposes of this hearing. I want that to be a given for the next questions. It follows from that that, again for the purposes of my cross-examination, all those documents that I am accepting are medical records, and all the documents in the special cases file, and all the documents in the main file, are or should be accessible to health professionals. You would agree with that, would you not?
A Yes.
Q Secondly, it would follow that all those documents are at least potentially disclosable in the event of a complaint or legal action, care proceedings and criminal proceedings, and you would agree with that.
A I am not an expert in the law. I think you would need a lawyer to say what is and what is not disclosable. That is outside my expertise actually.
Q I fully understand that. That is why I used the word, “potentially”, subject to prevailing legal rules.
A It makes common sense, yes.
Q So with those preliminary observations in mind, I am not going to be suggesting to you that there is a separate category of records here which are not medical records. Do you understand?
A I think so.
Q In other words, whatever ground Professor Southall relies on for the filing of certain of these documents, it is not based upon the concept that they are a different category of record. They are medical records. Right?
A Fine.
Q In contradistinction, an example of records which would be in a wholly different category, a different animal, would be an expert report which was compiled by Professor Southall or indeed you, following instructions from instructing solicitors.
A I agree.
Q Having set the scene, can I move on to the next question? Again it is by way of background and it really addresses this question of the extent and ambit of the debate between us. In Appendix One, I want you first of all to accept from me for the minute, that there are five items in Appendix One, or at least information in the five items – I stress that – that should have been placed ideally in the main file, whether or not they were in the special cases file as well, and filed at the appropriate time. I will come to the five in a minute. In accepting for the purposes of the debate that these five should have been in the main file, the question of whether all or any of those five actually are or at least were at some time in the main file and if not why not, must be a matter of evidence.
A Correct.
Q By that I mean evidence yet to be given to the Panel.
A Correct.
Q Can I take you smartly, then, to the five items that I want for my purposes to take out of this debate? Firstly, Child A, the MRI report 11 February 1987, special cases file page 131. As a matter of proposition, that clearly, or at least the information in it, should have been in the medical files.
A We agree.
Q Child B, the Crawley referral letter of 2 September 1993, special cases file page 33, that document ought to have been in the main file, whether or not it also went in the special cases file. Do you agree with that?
A I do.
Q Next, Child D, item four. This is the patient data. Do you have that?
A I do not have the actual page but I have the entry on the appendix.
Q That will do, the patient data form 13 December 1994; special cases file page 313. Again, I am not going to ask you to turn it up. The Panel have seen that. Child D, that is a document which, for the purposes of my questions it is accepted should have been placed in the main file, at least as well as the SC file. Next Child H, and there are two items that fall into this category for these purposes, Item 1 is the collection of clinical data form of 28 September 1989, special cases file pages 25 to 31. Again, you would agree that that should have been in the main file as well, at least, as in the special cases file.
A Correct.
Q Item six --
A I am on four actually. I must not have written one down. Child A one item; Child B one item; number three was Item 4. Have I missed one out?
Q I am now on Child H. Item one, and I am going to item 6.
A sorry, |I thought you meant there were six items because I have only got five.
Q There are five altogether.
A So it is Item 6 in Child H.
Q Yes. This is a letter from Dr Matthews to Dr Southall, 25 July 1991, SC file page 114. That is the letter which, for present purposes, should have been – whether or not it was in the special cases file – at least in the main file, and we agree about that.
A We do.
Q As I said earlier, five items where we agree they should have been in the main file, even if they were also in the special cases file. There is one further item I want to draw attention to. That comes back, in Child H, to Item 2, the manuscript clinical entry at page 20. Earlier I just set the scene in relation to that and suggested that it may or may not turn out to be a clinical record depending on further evidence; in other words, if I can give you an indication, it may depend upon the purpose for which that document was created. Leaving that aside, again for our purposes – you and I – if it is a medical record then I accept that it should have been in the main file as well, and you would agree with that.
A Yes.
Q Therefore, if I ring-fence for the moment those documents where I accept they should have appeared in the main file, what we are left with in relation to Child A, for example, is nothing; in relation to Child B nothing; in relation to Child D, all the correspondence. Do you agree?
A Yes.
Q Which on my mathematics, and if I am wrong somebody will tell me, is 28 letters. In relation to Child H four letters. I am sorry to be pedantic but it has got to go on the record.
A Our maths tally.
Q Therefore, for the purposes of this exercise, we are looking at letters only and it is again admitted so that you are clear where I am coming from, that that correspondence, the 28 and the four, is not in the main file. Moreover, it consists of a mixture of original letters or original top copies or copies from third parties. I think you agree with that.
A I cannot comment on how many are original and how many are not because I do not have that information.
MR COONAN: You have not done the exercise. For my purposes it does not matter. I am accepting that there was that mixture. I think Mr Tyson’s case is to the same effect.
MR TYSON: I will be asking my learned friend to make formal admissions in light of this cross-examination in due course for the record.
MR COONAN: If Mr Tyson had not asked me I would have put it in in any event to help the balance, so he is pushing at an open door. Professor David, I hope setting the scene has been helpful to you and I hope to the Panel before we then just engage in what I call the debate.
A Was that a question?
Q No, it was a comment before I come to the questions. If you find the exercise thus far to have been unhelpful then please say.
A I do not find it unhelpful but I do have a query. However, it is not my position to ask questions.
Q I have said for my purposes I am putting them to one side. Why I put them aside is a matter of further evidence. I just want, for my purposes to concentrate therefore on what is now a total of 32 letters in respect of two patients, D and H. Would you agree that a proper question to pose in relation to dealing with this debate is to ask oneself the question whether the filing of this correspondence was reasonably justified in the special cases files alone.
A I may have misunderstood the question and if I have I will be corrected, but my position is that my view was that these are medical records and should have been placed in the original patient medical records. I have got no views, or I have never expressed any views on what should or should not have been placed in the special case files. My concern, if you like, has been solely the integrity of the patient records rather than the integrity of the SC files, which has not been something I have addressed.
Q Let me put the question in a slightly different way. Is there a useful question to ask whether it was reasonably justified in not filing the correspondence in the main file?
A Well, I must have failed to make my position clear, but my view is that these items of correspondence comprise medical records and should all have been in the patient’s medical records. It therefore follows that I would be unhappy if that had not happened.
Q Having come here to give I appreciate not particular expert opinion about medical records, but nonetheless posing the question in that way to the Panel may be a helpful method for them to approach it, do you agree?
A I do not follow the logic, I am afraid.
Q Right. Well, I do not want to get involved in a semantic discussion, but you have in effect said, and made your position clear, that this correspondence should be in the main file even if it is in the special case’s file as well?
A Correct.
Q Let us just see where the fault line is. First of all, as you have correctly identified, Hempsons’ letter, at C2 6© – again, I do not invite the Panel to look at it, they are familiar with this document now – sets out Dr Southall’s position, and broadly, just to summarise it, the grounds are that the correspondence related to a background of child protection concerns and issues, in other words a broad policy approach was being applied to these two patients. Fair?
A That seems to be the thrust of the letter, yes.
Q So on the one hand a very broad policy, protocol if you like, unwritten but nonetheless a broad policy, but you would go for a slightly different approach and that is to examine each individual letter for the purpose of deciding whether it should go in the main file?
A I do not think that was a different approach. I simply was asked to look at each item and say whether in my view it was or was not a medical record, so I was doing no more than I was asked to do.
Q We have agreed that they are medical records. What it boils down to is where they are to be located.
A Right.
Q I think your position is, and I am quoting really from your evidence and from your report, you say that simply because there are child protection issues raised does not justify separate filing?
A Well, I went slightly further than that. I did say that the fact that child protection concerns had been raised does not justify withholding items from a patient’s medical records, but I went further and said that if there were child protection concerns, then it was particularly important that that material was placed in the patient records.
Q Well, you did, and I am going to look at that in a minute, but you also in your second report, and I am referring to paragraph 69, really raised the question of whether one should be applying a sort of percentage sliding scale when you look at each of the individual documents to determine how much is child protection and how much is not. Do you want to turn that up?
A Yes. I have it here.
Q It is C3, tab 7(b) at page 32 (sic). Do you have the reference to the sliding scale?
A I do.
Q Can you just read it out.
A Yes. It starts really at paragraph 68, which says:
“The letter from Hempsons dated 24 January 2006 says that these letters related to child protection issues, and that therefore there was no obligation to file the documents in the medical records.
I do have some difficulty with this. As I see it, Hempsons are saying in their 24 January 2006 letter (and if I have misunderstood then I apologise and no doubt they will correct my error) that any letter that is in any way related to child protection matters need not be filed in the medical records. I find it difficult to go along with this. What percentage of a letter has to concern child protection matters for it to no longer need to be filed in the patient records? Supposing that 95% of a letter concerns diagnosis and treatment, but 5% contains a child protection concern, should that cause the letter to be removed from the medical records? To put it another way, at what point does a letter between Dr A and Dr B about a patient cease to be ‘clinical’ and become ‘non-clinical’ or ‘child protection’? I find it impossible to answer the question.”
Q Right. If you are happy, can we just pause there. In the body of that observation you are using, or employing an assumption, that the letter in question is, and I quote, “removed from the medical records”. I am not suggesting for a moment that this correspondence is being removed from the medical records. I am accepting it is still part of the medical records, but filed in a different place. I draw attention to this because there may be a fundamental misunderstanding of what is being said. That observation, I suggest, illustrates the philosophical difference between Professor Southall and yourself, does it not?
A Well, I cannot speak for Professor Southall, but you have made a point.
Q Against what I have called the fault line between you on this approach, I suggest that it would be helpful, would it not, for us to be able to make judgements as to the extent to which you may be right or justified in your view, or Professor Southall right or justified in his view, by looking at a number of background facts in relation to these two cases? Would that be a helpful approach in your opinion?
A I cannot say because I am not quite sure what direction we are going in.
Q Well, let us wait and see. First of all, it would appear that this was a practice policy, protocol, call it what you like, which was adopted and followed by Dr Southall’s team at Brompton and at Staffordshire, was it not?
A As far as I can see, yes.
Q In relation to Child H, the actual care and treatment of him had ceased at the Brompton Hospital by 17 March 1990. Were you aware of that?
A I do not have the dates in front of me, but I am perfectly willing to accept that.
Q So in other words, when we look at the material in relation to Child H in Appendix One, in other words the correspondence, all that correspondence relates to the period after the discharge of this patient?
A Can you just give me the date again?
Q Yes, of course, 17 March 1990.
A Right.
Q I just make this observation, that the correspondence that I accept are medical records, and which relate to this question for the Panel, it postdates that date.
A I follow.
Q I just want you to assume for the purposes of this discussion, as we can see, that that is self-evidently the case; secondly, that he was never treated at the Brompton again, and that it was unlikely that he would be treated at the Brompton or Stoke again.
MR TYSON: I do not want my learned friend, and I am sure my learned friend would not want to make a bad point, but this child was treated in Wales about a year later under Dr Southall’s care, and he was responsible for dealing with that admission.
MR COONAN: I am well aware of that, but my question was on the basis that he was not treated at the Brompton or Stoke again, all right?
A I understand.
Q Thirdly, and we will hear more evidence about this but the Panel already has some evidence in the letter addressed to Dr Dinwiddie dated 22 March 1990, that the mother made it clear that she did not want Dr Southall to be involved in the care of this child again. The next point I would ask you to consider is that of course both these centres were tertiary centres. Now, in relation to Child H, against the background of those facts, do you think it is relevant or not relevant in terms of Dr Southall adopting and applying the policy which is set out in the Hempsons letter?
A I do not think it is relevant.
Q Right.
A Would it be helpful to explain why?
Q Yes, do by all means. I ask you these questions so that the Panel can see exactly where, by the time the case has ended, exactly where the positions are on both sides.
A The point that was being made in the question, or one of the points, was that at a certain date the patient ceased to be treated at a hospital. Now, no implications or inferences were drawn from that, but somebody listening to that might infer that that effectively was the end of the matter, and that therefore, after that point, because the child was not going to return to that hospital, it really did not matter what ended up in his medical records or not. Now, that has not been said and that point has not been made, but what I had in mind when I was listening to that was that of course there are many things that can happen in relation to a child after he or she has been discharged form hospital, even if that child’s mother has said, “I am never going to come back here again”, there are nevertheless reasons why people may need access to that child’s medical records. There are therefore reasons why those records need to retain their integrity and must be complete, even though the child will never enter the doors of that hospital again.
Q I follow the point. Ultimately, you are raising there, within that answer, ultimately questions of accessibility and integrity, and we will come on to that later.
A Fine.
Q That is a fundamental issue which informs your approach to this, does it not?
A Well, it informed my answer to the question.
Q It has nonetheless loomed very large in the process of your analysis of the case?
A I was not sure what implications you wanted to draw from the fact that the child had never been treated again at the hospital, and that is really why I just made that point.
Q Well, let us just move on to Child D, so again dealing now simply with the correspondence for the purposes of these patients. This child ceased being treated in December 1994 at Stoke. He was never treated at Brompton. I do not know whether you were aware of that?
A I do not think I have related Child D to the Brompton, have I?
Q No, no, I am just setting the scene to help the Panel.
A That was my understanding, that Child D was dealt with at Great Ormond Street and at other district general hospitals around Greater London.
Q His treatment at Stoke finished in December 1994. The next factor, again if you look, please, at Appendix One, all the correspondence that falls for consideration for the purposes of this today postdate December 1994, yes?
A I have not checked it, but I accept that you are accurate.
Q Well, if I am wrong somebody will correct me. He was never treated at Stoke again. If it be the case that it would be unlikely he would ever be treated at Stoke again, not least because of geography and the fact that Stoke is a tertiary centre, are those factors not of some relevance in informing Professor Southall’s blanket policy for filing separately that correspondence?
A Well, my answer is not. My answer is that there is an absolute need for a patient’s hospital medical records to be intact.
Q I am not sure how much you read into the medical notes of each of these two patients, so if it is a question you cannot help me with, then please say. The care and treatment of both Child H and Child D, by the time they have been discharged, had in effect elided into child protection concerns.
A Well, I think they are different in a sort of fundamental way, and again this is me speaking from memory, but if I recall correctly the difference between the two cases is that in one of them, in Child H, child protection issues had actually been raised by the referring hospital, which was Great Ormond Street (I think they had referred to the topic in their letter of referral), whereas with Child D those concerns were mainly raised once the child had come to stay. So I see them slightly differently.
Q Well, insofar as there is that difference, I am prepared to accept that for the purpose of the question, but the thrust of the question was that by the time of the discharge of each child the case had, whatever the history had been, there were in fact child protection concerns in place?
A That is correct.
Q The next factor concerns the correspondence itself. From your understanding of the examination of the correspondence and the situation at the relevant time, that is post discharge in both cases, these letters were not sent or received, it would appear, by Professor Southall, and that includes receiving the third party correspondence, or copies of it, in his capacity as a treating clinician in either case.
A Was that a question or a statement?
Q Yes.
A I do not think I would agree with that. It seems to me that he was wearing two hats; one was that he had been a treating clinician and one was that he had child protection concerns. It is hard to separate those two things out. If you have a patient in your unit, and while the child is with you you acquire child protection concerns, and the child is discharged, you do not cease to be a clinician; your involvement was as a clinician and you had child protection concerns. So I would not unpick the two roles quite so easily.
Q Professor David, you might have a little difficulty with that concept but do you accept that there is a contrary view, that a clinician in a tertiary centre, who has cared for and treated a child, that the care and treatment of that child at that stage, as far as he is concerned, is complete, if correspondence is then received in his capacity wearing his hat as someone concerned in child protection issues, there is a difference is there not?
A I do not agree. If I could pick up the words that you used? You talked about somebody caring and treating and I think if a paediatrician has concerns about a child who has been discharged then that paediatrician is still wearing their caring hat; they care about the child, they have concerns about the child. I do not see that changing the minute the child walks through the door of the hospital and says good-bye.
Q Do you accept that that might not be a universally shared view amongst your brethren?
A I cannot claim as to what other people’s views are, I can only give you my opinion about that.
Q Whatever may be the correct way of looking at that issue, what I am going to call the primary treating clinicians – you may jib a bit at my expression but I hope it is sufficient for the present purposes – that we see involved with these two patients would clearly have kept copies of the originals of their correspondence and the receipt of material in their own hospital notes, would they not?
A If we leave out the term “primary treating” because I think that anybody that has treated the child is a treating clinician. But if the question is, for example, would the doctors at Great Ormond Street have retained correspondence in the child’s records at Great Ormond Street then the answer is yes, I hope so.
Q The same applies obviously to material which we see – and I am not going to go through the laborious exercise with you of looking at this, it is evident the Panel will have spotted it – that many of this individual correspondence is of course copied to other clinicians, GPs certainly. So when I used the word “primary” what I meant by that was the treating clinician who is in effect initiating or sending the correspondence from A to B, so both A and B would keep copies in their notes.
A I am a little confused. We are talking about Great Ormond Street as an example. We have Professor Strobel, who clearly had concerns of his own about child D. Are we saying that he should have stopped filing materials in the Great Ormond Street records once he had child protection concerns? Sorry, is there a double standard or …
Q No, I am not suggesting that; I am not suggesting that at all. Sorry, you have misunderstood the question. It was really a question in the nature of an observation, that if a doctor at Great Ormond Street, who is actually actively treating the child, sends a letter to the GP or the social services, both Professor Strobel would keep a copy in his main file and the recipients would keep the original or a copy in their file.
A I would hope all originators and recipients would keep copies of letters in the patient’s records.
Q And the same applies if there is correspondence going directly to social services, they would file in in their filing system.
A I actually do not know how social services operate their filing systems.
Q Thus far I have just been examining with you the factual backdrop to both these two case and the factors that might or might not have affected the way in which Professor Southall’s policy was applied. Can I come to the question of accessibility? Obviously, whatever the policy was, if the material is filed in the medical notes but not in the main file – and I am using that expression because I do not want the idea to get abroad that these are not medical records – this part of the correspondence is filed as part of the medical records but simply not in the main file. Obviously if those documents filed out with the main file are not accessible to clinicians who need to know then there is a problem, and you would have strong objections to such a system.
A I have difficulty with the proposition of the question. It may be that I am being over simplistic and I am happy to be corrected, but my understanding of the term “hospital medical records”, which is what we are concerned with, is that that is a file, a bundle of papers – there may be many volumes but it is one volume – that is the patient’s medical records, that is the hospital medical records. So I struggle with the concept that there is something else, another bundle of papers somewhere else, wherever they are stored, that is being labelled the hospital medical records because, as I understand it, there is only one thing that is the hospital medical records and that is the original records. When you ask to see the child’s medical records that is what you get. So I have got a bit stuck with the proposition of the question.
Q If you are approaching this on the basis that when we talk about hospital medical records that all that does exist and should exist are either one, two, three or four, however many buff folders, I suggest that that is a far too narrow approach because – and I will come to it in more detail – hospital medical records is a much broader concept and includes material stored in other sites, in computers, laboratories, other clinics, where there are no records of that information kept in the buff folders. Do you agree?
A I am not sure there is very much between us on this. It is a point I have made in my report that it is a fact that information about patients can end up in all sorts of places. There is no disagreement about that, but ultimately I think – and the point
I make is very simple – it is about what is a medical record? I think what this discussion is about – and you have used the word – is accessibility, and I accept that.
Q Absolutely. This material is medical records, they are filed out with the buff folders and the big question is whether they should be accessible.
A The big question is whether they should be in the patient’s medical records or not.
Q I have dealt with that point and I am now dealing with accessibility. You would say that it is vitally important that wherever hospital records are stored or filed – for example, laboratory results, pathology department results – wherever they may be located you have to have accessibility.
A The vital thing about pathology reports – and the Path Lab may keep their own records – those data are of absolutely no use to the patient unless a copy of that laboratory report is in the patient’s medical records. So you are right, there may well be records of a laboratory result in the Path Lab, but the key thing is that the report of the test must be in the patient’s medical records.
Q Professor David, the ultimate reasoning for where you locate something has to be whether it is accessible or not, surely?
A Clearly accessibility is one reason why the integrity of medical records is so important.
Q I entirely accept that, there is nothing between us on that. If it be the case – the Panel will have to receive evidence in due course – that the medical and nursing staff were fully aware of the existence not only of the SC files but what was in them, and could get into the files, knew where they were, and so far as the relevant health professionals are concerned, that meets the test of accessibility, does it not?
A You are assuming in that question that the only reason for having medical records is for the purposes of other people looking after the child in that hospital, and of course one of the issues, particularly in child protection cases, is that the medical records get used for other reasons that go outside the hospital. So the fact that a nurse on the ward knows that there are some other papers hidden away somewhere does not really help us.
Q Professor David, I was dealing with nurses and health professionals as a separate category of people, an important category of people who were involved in the care of the child. In that sense my suggestion was that it deals with the problems which might be caused to the health and safety of the child if there was no accessibility.
A I do not think there is any disagreement that at the time such a child was in hospital I am quite willing to accept that the nursing staff on the ward were well aware that there were other materials stored somewhere else. I do not think there is any disagreement about that; I personally think it is just not the point.
Q We will have to see the extent to which that other concern that you have ends up being met by the evidence, but your concern in that respect is noted. One of the practical reasons, I suggest, for adopting this policy, as we see it was adopted, by Professor Southall, was that it is possible for him – particularly him because he was a consultant – to take a view and advise the Trust in respect of documents which are readily available when requests for disclosure come into the Trust. You know that that commonly occurs, does it not?
A It does.
Q If we can flesh that out. A request for disclosure simply out of curiosity by a patient or the possibility of legal action or a complaint, it might raise a question whether there might or might not be an objection by the Trust to the disclosure, at least at first, to the entirety of the documentation.
A That is absolutely correct.
Q Again, all that would be subject to any relevant legal rules applicable at the relevant time.
A I am sure you are right.
Q So purely from an administrative and practical standpoint it is material relating to child protection – and I am using that in a broad sense – if child protection is filed separately that allows the doctor, the consultant to take a good look at the matter in the round, so that he can determine what advice, if any, he should give to the Trust on disclosure.
A I disagree with that proposition.
Q One has to look, when one is examining the weight to be attached to that proposition, to particularly the legal position, I suggest, particularly prior to the Data Protection Act 1998; do you agree?
A I am not an expert in the Data Protection Act or when it applied but I am happy to accept whatever you say about it.
Q It is just an observation I think worth making that the Data Protection Act, although receiving the Royal Assent in 1998, of course in effect postdates all this correspondence.
A Yes, I think the relevant legislation is different. I am not sure that this has much to do with the Data Protection Act. The legislation that I am conscious of – and again I really know very little about it – is concerned with patients’ access to records and disclosure of records, and those are the regulations that I am thinking of, and it is under those regulations that we consultants get asked by our Trust if it is all right to disclose copies of a patient’s medical records either to the family or to solicitors.
I think that is the controlling legislation.
Q I do not dispute that but I was just taking the Data Protection Act as a factor which now governs the topic of disclosure in a way in which it did not do prior to 1998.
A I am not sure it is relevant to the issue of consultants being asked because you are saying that it would have been helpful to Professor Southall to have these files available to him so that when the Trust go to him and say, “Would it be all right with you for us to make copies of these records and disclose them?” you are saying it would be very handy for him to be able to refer to his own files in order to answer that question, and what I am saying is that I do not think it has much to do with the Data Protection Act, I think it is to do with the legislation that controls disclosure of records.
Q Professor David, I do not dispute that but I am simply saying that there is an extra feature post-1998. All of what you say, I do not dispute that, and I think we agree that the consultant is, in those circumstances, very frequently asked for a view as to whether there should be disclosure fully, or at least to a part. So I think we agree about that.
A The only thing that I am uncertain about is the relevance of the Data Protection Act, simply because this is a very frequent request that us consultants face, and no doubt when I go back to Manchester, having been here for three days, it is quite likely that there will be a set of records waiting for me with that request, and I just do not recall the Data Protection Act being invoked when I am being asked for my comments, but I may have missed it.
Q I am not emphasising the Data Protection Act, I am using it as a milestone in the development of these matters. Can I just deal with this question of tampering? Both in your report and your evidence yesterday you used this phrase – and I make this absolutely clear, that nobody on this side of the room is seeking to condone tampering with medical records or seeking to justify the tampering of medical records. Everyone accepts on this side that medical records are inviolate and they are sacrosanct and that principle does not need any limitation. But what I am going to briefly examine with you is the way in which you use that expression. I suggest to you that what we have here is not a case of tampering at all; what one has here is filing in a different place – and we have been through that – but they are all securely kept; none of them, it would appear, have been lost; none of them, it would appear, have been damaged; none of them spirited away; and, depending on the evidence, all are available for access. I am not following, therefore, the basis for you saying that the medical records have been tampered with.
A Would you like me to comment?
Q Please.
A I think it is a very fair question. I have not brought a dictionary with me to explore the meaning of the word “tampering”, but it may be helpful for me to clarify as to what I do not intend it to mean?
Q Right.
A I do not think there is any evidence of any deliberate intent to mislead or damage or cause harm. I use the word “tampering” simply because it is a word that is used quite frequently when reference is made in circulars that we get about the integrity of medical records being lost, and I accept that some of those cases will concern deliberate interference with a medical record, a doctor deliberately taking out a set of notes because he or she does not want someone to see what he has written. Clearly nothing like that is involved here. Or it might be used where a doctor – I suppose Dr Shipman is the most famous example – created his own false medical records. There is no evidence of anything like that. So I think the question is very fair. Tampering is not a word that I normally use, but I meant it as a word that is used to describe a process that adversely affects the integrity of medical records, and I guess the justification for a fairly strong word is ultimately what I think everybody agrees, which is the sacrosanct nature of medical records. I hope that helps clarify where I am coming from?
Q I understand and that is certainly helpful to me, at least to a degree. But the argument against it is somewhat circular because if, as I say, the documents are available, are accessible, are safe and not damaged or lost or any other actions that we have discussed, again it is hard to see, is it not, how the documents, the medical records are not sacrosanct?
A I agree it is a circular argument but, with respect, I feel that it was not me who made it circular. The truth is that medical records need to be intact because they need to be accessible. You have asked me to make an assumption in that question, which is that they were accessible.
Q I have, but I said “assume” that.
A I cannot assume that. The whole problem is that there are items that were not in the medical records and that means that they are not accessible. They may have been accessible to the nurses looking after the child, but to somebody outside the hospital requesting copies of the records, they would not have been provided.
Q That is a matter of evidence but I am just asking you, for the purposes of the discussion, the principle that if the system set up here was accessible – whether or not it is just to professionals – that the people in the hospital knew about it and could have got the material if necessary, how the system worked in practice may be another matter we have to examine, but if the principle was one of accessibility, what I say to you – and I do have to put this to you – is that there is no basis for saying that these medical records were no longer sacrosanct or that the integrity had been interfered with. It is a simple point.
A It is not a simple point. You are asking me to consider a hypothetical position and then going back to fact. I am quite happy to accept a hypothetical argument, but you cannot then relate it to the facts.
Q I am putting this purely on the basis of the hypothesis that there was accessibility. If there was then any suggestion of tampering or reduction in integrity falls by the wayside.
A I can see the point. I think the basic point is that a patient’s medical records should be complete and should be intact. I would not be happy for somebody to say, “Well, that is OK. Actually if they are stored somewhere else and they are available then it does not really matter”. I do not go along with that.
Q You have set out your position, as you say; that is your opinion. Just to complete this section, you referred yesterday to advice commonly given by medical defence organisations on the subject of medical records. In effect you used the word “tampering” in that context as well. Again, I do not dispute that the medical defence organisations have said that, indeed for the very reasons you have said; that is, to guard against doctors deliberately tampering in the ways you have described, with medical records. It is a very serious matter. But just for the purposes of this part of the discussion, the medical defence organisations’ advice has never had occasion to deal with precisely this issue, has it?
A I cannot answer for the medical defence organisations and I have absolutely no idea what they have been called upon to consider.
Q If I can just move on to the next topic, I think we have drawn, as it were, I hope helpfully for the Panel through you, where the arguments lie on both sides here. This is not intended to be in any way offensive, but the Panel should be alert, should they not, in approaching this issue, to guard against too prescriptive or too rigid an approach to topics like this?
A I am not sure I am in a position to advise the Panel on how they should approach this.
Q There ought to be, ought there not, your advice and assistance to the Panel ought really to reflect to a significant extent the realities of professional life as paediatricians when dealing with topics like this.
A I can only repeat, I do not bring special advice to the Panel. I hope that I bring with me experience of working with the NHS.
Q Again, I do not want this to be offensive, but to be somewhat excessively pedagogic would be excessive, would it not?
A I am not quite sure what you mean.
Q A rather excessive teaching approach to an analysis of this issue, which I suggest is a simple, practical one.
A All I can really do is reflect my own medical upbringing, if I can call it that, and the various things that get drummed into one during one’s career. One of them is that the one thing you must not touch or interfere with, or do anything to harm the integrity of is the patient’s medical records. I mean, there are lots of facets there. It is kind of, not exactly one of the Ten Commandments, but one of the things that really – I have received many messages of that sort and I am really doing no more than reflecting that prevailing approach. If the Panel disagrees or feels that is excessive, that is up to them.
Q Leaving aside the Panel’s view, do you accept that there is room for a different view in your approach to this issue?
A I certainly accept that there may be different approaches and different opinions on many topics.
Q Right. These matters, as we can see from Appendix One, the spread of correspondence, which is what we are dealing with, is from about 1989 to about 1998 – that is the last dated letter. It is fair, is it not -- and one makes a judgment as to whether or not this is a system that should have been adopted -- to bear in mind that there has been, over this period of time, a climate change in the approach to the entire subject of management of records and the sharing of information and so on. Do you agree?
A Yes and no.
Q What is the yes?
A I am sure there have been many many changes.
Q The no?
A The basic need for medical records to be intact is the sort of given that is the theme that has always been there and I do not think that has ever changed.
Q I agree, so ultimately it may well be that the question arises whether, on the facts of this case, the records as a whole were intact and the integrity was preserved, ultimately. Do you agree?
A I am not sure what the ultimate issue is. I guess that is really for the Panel.
Q Again I am just picking out a couple of passages from your report. If we need to look at them then do so, but the Panel read your reports in detail. As to the yes part of the question I put to you, you referred – I will give the Panel the reference – in your first report, at paragraph 345 to, as you expressed it, the general situation of certainly some aspects of the approach to records being now vastly more complex than it was.
A We never used to have the Caldecott guidance for a start.
Q That, as you very fairly pointed out, is a concept, or an innovation – call it what you like – which comes in right at the end of the period with which we are concerned in this case.
A It may have come in after, I am not quite sure.
Q That is a fair point, but it is a sort of book end for the period, is it not?
A It is something new.
Q Again, I think in paragraph 353 in your first report, you highlighted what you have described as “new thinking”.
A Yes, “the” new thinking.
Q One must not lose sight of the fact that, quite apart from the unchanging proposition that you have highlighted about the fact that records are sacrosanct and should be intact, the way that one goes about managing records and having records communicating with each other and the ability of practitioners to communicate with each other via records has undergone something of a change.
A I am not sure that has undergone much of a change. I think the Caldecott guidelines and all these new things are really concerning access to records rather than to the way you file them away. I am not sure that that has really changed. I think the main change in relation to the storage and filing of records is the computer. That is the main change.
Q Very often in cases it is helpful to draw upon either national or local guidance dealing with the management of issues arising in a particular area. I think you very fairly indicated that you had carried out something of a review of this and there was no national or, it would appear, direct local guidance which informs this issue.
A I could not find any. There are one or two references, actually – I hope you are not going to ask me what they are – one or two protocols that do refer to the need for materials to be stored in the records and things, but there is very little guidance. I think there is one local protocol that refers to that. There are one or two references as to where things should be stored.
Q It certainly does not deal with this particular issue, does it?
A Not the matter of keeping certain things away from the main hospital records. I have not seen that discussed anywhere.
Q Again, in so far as national guidance has developed in relation to the issue of child protection and the area of fabricated or induced illness, and the approach of paediatricians and the way they go about dealing with records in that context, one only gets any degree of national guidance in the year 2000 FII. Is that right?
A I am not sure what you are referring to actually.
Q I am referring to the Department of Health publication 2000 FII, and also the publication by the Royal College published in 2002.
A Right, OK.
Q You have also, so the Panel are aware, referred to a Department of Health circular 1999 which appears in your report. For the purpose of the questions, I just draw attention to the fact that there has been a development in the thinking and analysis of general matters relating to child protection and the way in which you handle records but it comes after this period. Is that a fact?
A I would have to look at the documents in some detail, but there has been a great deal of new thinking about child protection matters and how you handle them. There is no question about that. What I cannot remember is how the two documents, the Department of Health 2000 report and the Royal College guidance 2002, exactly what they say about medical records. So I cannot, off the top of my head, say whether there is something new that they have to say about medical records that was not already a given or common sense.
Q I am not suggesting that those publications actually focused on this particular issue, but certainly, as occurs in many areas, the Royal College or Department of Health or other agency, feels the need to provide guidance on issues precisely because practice would have been at best patchy or variable throughout the country up until that moment.
A There are a number of reasons for issuing guidance.
Q You do not dispute the proposition I put to you.
A No.
Q You agree that it is in a sense perhaps ironic that in the case of Stoke, where Professor Southall was, there had in fact been the promulgation of two policies by the end of this period of the correspondence. The Panel were aware of that. There were the security guidelines published in March 1995, which I think you have seen. Is that right?
A I cannot remember offhand.
Q It is C3, Tab 7(v).
A What is the actual document?
Q It is called Security Guidelines.
A No, I mean where do I refer to it in my report.
Q I was just asking whether you had seen it.
A If I refer to it in my report, then I have.
Q I cannot recall whether there is specific reference to it. My learned friend says 88.5 in the second report. It is a short policy.
A I am not sure what you would like me to do. I would need to dig out what reference I have got to this document. I can see it in front of me.
Q Do want to look at the passage in your report? It is 88.5.
A That is what I was looking for.
Q Just for my purposes, I simply wanted to point out through you that during the period of this correspondence that we are focusing on, Stoke, and for these purposes I will include Professor Southall, had gone into print and attempted to deal with aspects of record keeping. First of all, we have this single document, the Security Guidelines. Then, if you turn the tab in C3, you see the Child Protection Policy Procedures, which the Panel were given yesterday as a substitute for yet another Stoke policy, which is available if you need to look at it. I do not think it helps any of us, one way or the other, to deal with the present issue. But this document is dated – bottom right hand corner – January 1997. Again I just highlight that. In the document we see the date in the bottom right hand corner. Obviously in due course the Panel will be invited to consider that document and read through it. Just to point out one matter, Professor David, if you go to page 20, bottom left hand corner, you will see that under “Background” at 1.1 there is a reference to the trust policy for clinical record keeping, policy number 10. That was the policy you referred to yesterday in your evidence when you remarked that you had not been able to obtain that.
A I think that is right. Do you have that?
Q No. The trust has not been able to help. Again, I just wanted to highlight the fact that we have those two documents which fall within the period of the correspondence we are looking at. I have one further point to deal with and then I have finished this document. In the course of your evidence you referred to inquiries and such like which have highlighted difficulties arising from body A and body B not communicating information and individuals not communicating information. You mentioned that yesterday.
A I mentioned that potential problem.
Q In fact that did happen in a number of inquiries, did it not?
A It has been a thread. If one looks at inquiries into fatal cases of child abuse, that is a recurring theme.
Q Indeed so. I think the Climbie Inquiry, Lord Laming’s inquiry in 1999, had a lot to say about the need for keeping unitary records.
A I cannot remember what Laming said on this point, I have to admit.
Q Again, I will just keep this very short, but he did have something to say about the need for keeping unitary records; in other words, almost the precise thing that you are talking about. But those recommendation have not been published to the professions and nor have they been accepted.
A I am not sure that is right. The Laming recommendations have been very widely disseminated and there have been Department of Health circulars instructing all trusts to make sure – there were numerous recommendations that he made – that they were all followed.
Q But not in terms of dealing with this particular issue.
A I cannot remember what the individual issues were, but they are regularly referred to.
MR COONAN: The wider matters, of course, I am not disputing. They were, if I may say so, very helpful and very good recommendations. Madam, that was the point I wanted to deal with and that may be a convenient moment.
THE CHAIRMAN: We will adjourn then for 15 minutes.
(The Panel adjourned for a short time)
MR COONAN: Professor David, can we just move on, please, to talk about a separate topic now briefly. I am referring to the letter from Dr Southall to Dr Dinwiddie dated 22 March 1990, and you will find that at C2 2(i).
A I am not quite there. Right.
Q I see what you are doing. It is not in Appendix One.
A That is what I was searching for.
Q I though you might be. No, it is not in Appendix One. This is a letter which was in the main hospital file.
A Thank you very much.
Q So I am dealing now with a freestanding topic.
A Right.
Q So we are not dealing with special cases files now. Now, yesterday, towards the end of your evidence yesterday afternoon, you were asked some questions based upon this document, and I just want to explore one or two aspects of that, if I may. I am going to ask you, please, to address it on the basis of – forgive me if it is a hypothetical basis, but you were asked a number of questions on a hypothetical basis yesterday by Mr Tyson, and it is not a criticism, but it is the only way you can do it because you have not heard all of the evidence yet – so if it be the case that Dr Southall had child protection concerns and wished to alert a paediatrician in Gwent about this, and about the existence of a tracheostomy, then - and I am going to ask you, please, for the purposes of this question to leave aside for the moment that there was no covering letter, to leave aside for the moment that, on the face of it, it appears it was sent to an unidentified consultant, so those are matters which will have to be addressed in the evidence, so take those out of the equation – do you accept that if he did have those concerns (child protection, tracheostomy, the fact that the child might be admitted to this local hospital at some stage), that sending a letter in those terms was justified?
A There is not a problem with a paediatrician sharing his concerns of a child protection nature with another paediatrician who might have contact with that child. One might go further than that and might say you would have a duty to do that.
Q Again, if I may just flesh that out a little. In those circumstances, he would have no duty of care to the parents?
A The duty would be to the child, absolutely correct.
Q In other words, not only no duty of care to the parents, but no duty of confidence owed to the parents?
A No need to obtain their consent.
Q No need to obtain their consent.
A Absolutely.
Q Or, alternatively, if you look at it another way, insofar as there may have been a duty of confidence owed to the parents, a paediatrician in those circumstances would be justified in breaching it?
A That is absolutely right.
Q As you have said, the paramount duty is owed to the child?
A Correct.
Q As I have said, and again I close this part by just a comment that the precise circumstances in which the letter came to be penned awaits the evidence. Professor David, can I just turn briefly, please, to the question of the computer material. I think you will need C10 for this. There are two aspects of this, and it really arises out of the evidence you gave yesterday rather than anything in your report, which the Panel has got and which we all have. So can I just take the two points quite separately. The first point concerns page 3 of C10. Sorry, before we get to the detail, can I just ask you a general question? What I think you said yesterday was that each one of these documents, and you used the word “documents”, in C10 are first of all medical records, and, secondly, they (that is the documents) should have been found in the medical records.
A Correct.
Q Now, again I do not want to be over-pedantic about this, but, first of all, strictly it is the data in the computer which forms, first of all, part of the hospital medical records, because it may not be printed off.
A I was referring to the printed copy before me.
Q Yes, but our printed copy, we have heard evidence as to the circumstances in which it came to be printed off.
A I accept that, but I was simply dealing with the bits of paper that were put before me.
Q Let us just see, however, just with your assistance if we can just deal with the technical side of this. If the data that we see in these documents is stored in a computer, then you would agree, I think, that that data should be viewed as part of the hospital medical records.
A Yes, I would.
Q As and when the data is printed off by somebody, all right, the print off becomes again part of the hospital medical records?
A Yes.
Q So again, and this may be self-evident, the document only becomes part of the hospital medical records when somebody thinks to print it?
A It does not exist until it is printed.
Q It does not exist. Now, with that background, again let us look at the example that Mr Tyson took you to. You said that the document on page 3 should be in the main hospital records following what is called the letter signed by Dr Jawad. You were taken to that, Professor David, and it is C3, tab 7(d)(i) – do you have that?
A Well, I know what you are referring to, but my views on this letter did not depend on that.
Q Well, I am just wanting to try and tease out really the basis of your answer, because I have not checked the exact transcripts and I am relying on my manuscript note from yesterday, and my note and my recollection was to the effect that you appear to be saying that the document at page 3 should have been with the medical records following the Jawad letter.
A No. To use your word, you have elided too thin.
Q That is why I wanted to explore this.
A My view on this item on page 3, and the rest are all the same, is that this appears to be a summary relating to a child being admitted to hospital to have some observations done. The observations were done, the results of those are recorded here, recommendations, follow up, clinical impression, and I would call this a discharge summary, and I would have expected this to have been placed in the records and sent to the referring hospital and sent to the GP. Now, my expectations are derived from first principles. They have absolutely nothing to do with the document that you are talking about. The document that you are talking about used the words “computer printout” and I was assuming that that reference was to these kinds of materials.
Q It is just that it may be that your answer was on the platform of a question to you by Mr Tyson. It is not a criticism, but I want just to flesh out what you meant. So in other words, your answer in relation to page 3 of C10 is wholly irrespective in the context of the Jawad letter.
A That is correct.
Q Just pointing out in passing, of course, the Jawad letter is dated after the discharge on page 3.
A I did not place any reliance on that and I was not even sure, when there was a reference to computer summaries or computer printouts, that this is what it was I was getting, but this is what that letter refers to and no more.
Q Very good. That clarifies it for me. The next letter in the document bundle is at page 13.
A Page 30 of?
Q 13 of C10.
A Is that my report?
Q No, no, the thin bundle.
A Sorry. C10, is that what this is called?
Q It is called C10.
A Thank you.
Q The other larger one is C9, I do not know whether that is marked either.
A Well, I have marked it now, so---
Q Again, Mr Tyson took you to this document, and you said, and again it is based on my recollection and on my manuscript note of yesterday, that the document was a medical record and it should be filed in the main hospital notes, again making reference to the Jawad letter.
A Well, the same comments apply. My opinions on this, where it should have been, are not derived from the Jawad letter, they are derived from first principles.
Q Very helpful, not least I was going to observe of course that the Jawad letter related to a completely different hospital.
MR TYSON: Well---
MR COONAN: Anyway, you have clarified the point for me. It was suggested that it should be included in the main hospital records, and I do not know whether the implication lying behind that, that in fact it was not, but if there was an implication that it was not, can we look at C2 5---
A I think I might need some help here.
Q C2 5(iii).
A Thank you very much.
Q As I say, I do not know whether the implication that was being sought to draw was that it was not in the main hospital records, but this document at C2 5(iii) is an extract from the main hospital records.
A Is it?
Q That is what we are told. So it follows, does it not, that the document on page 13 of C10 is in fact in the hospital records?
A If that is correct, that follows.
MR COONAN: Professor David, thank you very much indeed. That is all I ask.
Re-examined by MR TYSON
Q You were asked about five items that were not, as it were, clinical correspondence, and in particular you were asked about the manuscript entry written by Dr Samuels in relation to Child H, which we see at page 20, so it is C7, page 20.
A Right.
Q You may recall you were given five items that ideally should have been in the main file, and then we came to, as it were, the fifth and a half, if I can put it this way, where it was suggested to you by Mr Coonan that this, whether or not it is a clinical entry it was suggested, may depend upon the purpose for which it was created. Can I ask you, is that a valid test as to whether or not this is a clinical entry, i.e. does it or does it not depend on the purpose for which it was created?
A (Pause) It is quite a difficult question, which is why I am pausing. If one is making clinical notes about a patient, then the purpose is simply to record statements or record facts or record opinions about that patient, and the purpose is quite simply to make notes about the patient, and that is the primary purpose. Why I paused is that I suppose I could conceive of an alternative circumstance in which somebody might write something down, but basically writing medical records is for the purpose of writing medical records..
Q The evidence will be, as I anticipate, that this is a note, amongst other things, of a consultation of the parents with Dr Samuels shortly before they left the Brompton Hospital in the middle of March 1990. If, amongst other things, it is a record of a consultation with the parents does that assist?
A It is a straightforward note of events that is part of the child’s records.
Q A proposition was put to you that the SC files were part of the medical records, albeit filed in a different place. Before you heard that proposition being put to you today, had that been your understanding of the SC files?
A No, that was a novel suggestion.
Q From your recollection was that novel suggestion put forward in the explanation that Professor Southall gave of the purpose behind the SC files?
A No.
Q Could you look at C2, section 6, which is the Hempsons’ letter? The page number I would ask you to look at is page 12.
A I have it.
Q We see at the bottom of the page two possible explanations as to why Professor Southall used special cases files. And dealing with the second one you see it says:
“To store confidential documents relating to child protection issues.”
Going back to the paragraph before we see:
“Professor Southall was informed in his discussions with social services, the lead agency for child protection, that these documents were not to be placed in the hospital medical records. It therefore became Professor Southall’s practice to keep documentation relating to child protection issues in special case files.”
On your reading on that matter does that indicate that these special cases files in relation to child protection were part of the medical records of this child?
A No, but I think what is more relevant is item one at the bottom of the page, where it says:
“Thus, Professor Southall used special case files in two situations:
To keep documentation relating to the specialised monitoring of children that he was undertaking. In our submission these documents were not part of the usual medical records …”
That is the key point. The earlier thing that you were referring to, about documentation relating to child protection issues, that really refers to child protection case conference minutes, and they usually come with a warning saying that they should not be put in medical records. As I indicate in my report, I personally disregard that, but I think most of my colleagues do not disregard that; so to be perfectly legitimate and not file a child protection case conference minutes in the child’s medical records, and I do not that that really gives any authority about the filing of medical records.
Q The basic point to this Professor David, in anywhere of your reading of this letter from Hempsons does it indicate that the special cases files are part of the child’s hospital medical records?
A It is the reverse of that; this sentence says that these were not part of the usual medical records.
Q Is it your understanding from your knowledge of this case that the parents of child A, child D and child H have made extensive requests for copies of their children’s medical records, out of which the SC files have not, until very, very much later been produced.
A I do not actually have any information about that topic.
Q On a hypothesis, that these parents that I have mentioned, had been seeing their child’s hospital records and when they had achieved it those hospital records did not include the SC files, do you have any comments on that in relation to this novel suggestion that they are part of the hospital records?
A It is a hypothetical situation and the answer is that it would drive a coach and horses through the argument that these were actually part of the child’s records.
Q In two cases you have indicated in your reports that you have been instructed by the parents to look at the medical records, to give the parents certain advice in the past.
A The cases I was referring to, I was not instructed by the parents. I am sorry, are you referring to two of these cases?
Q Yes, I am referring to the fact that as you gave evidence yesterday that you have been involved in two of these cases in a separate capacity.
A I am sorry, I was on the wrong track. You are correct; we are talking about case D and case H.
Q When you were involved in your separate professional capacity in those two cases were you given a copy of the child’s medical records?
A I was.
Q Did the copy of the child’s medical records that you produced include the SC files?
A As far as case H is concerned we have to rely on my memory, but I have no recollection of seeing an SC file. I say that partly because I had never heard of SC files until I was asked to report on these seven cases. It was a new concept to me. Child D is different in that with child D I was potentially working on that case in parallel to working on that case for this, for the purposes of these proceedings. Of course, I have been provided with the SC file by Field Fisher Waterhouse. What
I cannot say from memory is whether I had been provided with the SC file by the solicitors who were instructing me in the parallel matter.
Q You also said in evidence that there have been a number of cases in litigation where you and Dr Southall have been both involved.
A There are not many but there are a few.
Q In those cases had the existence of the SC files ever come into play?
A No, not as far as I can remember. I have no recollection of ever having heard of SC files until I was instructed to report on these seven cases.
Q You were asked a separate matter in relation to child H and the same point was put in relation to child D, that the matters in Appendix One came into existence after the particular child was an inpatient at the relevant hospital, and you indicated that for reasons of integrity it was important that these matters remained in the child’s medical records even though the child would never go there again. My simple question in re-examination is, why is it important, even though the child may never go there again, that these matters remain in that child’s medical records?
A I think for the reasons that those records may be needed, for example, in legal proceedings, such as care proceedings, which would concern the removal of the child and other children from the family, or criminal proceedings.
Q You were asked questions about a clinical correspondence in child D’s case that was going between, for instance, Professor Southall and Professor Strobel of Great Ormond Street. Just looking at Appendix One, 1(a), the letter from the Professor, would it surprise you that that letter can be found in the Great Ormond Street files in the main Great Ormond Street files?
A No, it would not surprise me.
Q Indeed, would you expect it?
A If it had been sent there, yes.
Q I am sorry, I think I have asked you the wrong question. 1(a) was a letter from Professor Warner. Would you be surprised to know that that is in Professor Warner’s own hospital medical records file?
A I would be amazed if it was not.
Q Ditto 1(b), the letter from Professor Strobel of Great Ormond Street, would you be surprised to hear that that is filed in the parallel Great Ormond Street children’s medical records?
A Not at all.
Q Just dealing with some examples from 2, at 2(a) the letter from Professor Strobel to the GP. Would you be surprised to know that that is in Professor Strobel’s Great Ormond Street medical records?
A No.
Q You were asked under the general heading of “accessibility”, about the fact that whilst the child was an in-patient, the nurse may well have known that there were other papers relating to the child and it was suggested to you that the fact that the nursing staff on the ward, as it were, at the time was a useful matter. Your answer was, “I do not disagree but it is not the point”.
A Exactly.
Q What is the point?
A The point is that subsequently, if the mother of that child faces a murder trial and everybody depends on the medical records of the case to get expert reports, and if those medical records are missing all sorts of documents, then that whole trial is corrupted.
Q You gave evidence in chief that if there was a temporary separation of files during the in-patient period, immediately the in-patient period ended they should be re-merged. Is there anything as a result of cross-examination that makes you go back on that main point?
A No.
Q It was suggested to you that a good reason for holding SC files was for the practical reason that if there was a subsequent request for access to those files, the use of an SC file would assist the clinician to decide on whether or not to disclose material. Is that a good enough reason for keeping these kinds of files?
A It is completely incorrect. Indeed, it would be most unwise to rely on what amounts to a partial set of records in order to advise the trust as to whether it is appropriate to disclose the entire records. The only way you can do that is to see the hospital records for the child and that is exactly what happens. You get a letter from the trust saying, “We have been asked to supply a copy of this child’s medical records for the purposes of litigation, do you, as the treating consultant agree? Is there anything that we should not supply because it would be harmful to the child?” That is the question. There is only one way that you can answer that question, and that is to see the hospital records and see everything that is in them and answer either “Yes, it is fine to supply these”, or “No, there is a piece of paper in here that really should not be disclosed because it could be harmful to the child”. The only way you can answer that question is by seeing the hospital records. You could not answer that question by seeing a subset of those records that you have kept for other reasons.
Q You were asked about various protocols and you indicated that there were no general protocols that assisted as to whether child protection matters should be filed deliberately in separate files. You indicated that there may be some assistance in the North Staffs’ own documentation. Can I ask you to look at C3, Section 7, subsection (d)(vi)? Can I also take you to page 20 of Appendix Two? You see under the general heading “Recording Observations during Child Protection Procedures”, under 2 on page 20,
“Guidelines for documentation in situations where to inform parents could jeopardise the child’s safety”?
A Yes.
Q Do you see some guidance under 2.1 that,
“Where there are concerns regarding Child Protection issues and a decision has been made in the interests of the child’s safety not to inform parents”,
the bullet point on the top of page 21 says,
“record concerns on a separate sheet of paper which should be stored with the medical notes in a separate folder and must be signed and dated (Note: these should not be kept by the bedside)”.
Does that or does it not indicate that even if there are child protection concerns, the matter should still be part of the medical records.
A That appears to be the message unless the medical records are being kept at the end of the bed.
MR COONAN: I hope I made it clear that I accept that these documents are part of the medical records. My learned friend predicates these questions on the assumption that they are not. I would invite my learned friend to use the terminology “the main file”, because if this matter has to be looked at elsewhere later, the terminology needs to be clear.
MR TYSON: I have difficulty in adopting my learned friend’s stance because it is one that has only come to the attention of anybody in this case in the last hour, that SC files are part of the hospital records.
MR COONAN: I am not going to rise to the bait.
MR TYSON: Professor David, if one was to apply the test, if it is child protection it must be kept separate from the document produced by Hempsons to which you have just drawn the Panel’s attention, if that was the test, could you look please at C2, which is the unnamed paediatrician letter, if I can put it that way? This is the letter which is the subject matter of heads of charge 8, which is being dealt with separately. This is a letter, if I can put it this way, would you agree that as well as clinical matters, it also includes child protection matters?
A That clearly is the case.
Q Can you see any consistency in the stance being put forward by Professor Southall that letters relating to child protection matters should be in the SC file when, as we know, this particular letter was in the child’s main hospital records.
A It is not consistent.
Q I will not burden you or others with other examples, but can take my witnesses to them as required. It was suggested to you in relation to that letter that a letter in those terms, provided they were covered by a suitable covering letter or whatever, in sending information to other clinicians about child protection concerns, you do not need to obtain consent, and you agreed with that.
A Yes. It was a hypothetical discussion.
Q Yes, a hypothetical discussion. Again a hypothetical discussion that in cases of child protection you were justified in breaching confidences.
A Correct.
Q In a particular case where it is claimed that there was consent for such a letter, do those hypothetical considerations apply?
A No.
Q Just one last sweeping question in re-examination and that is this: in respect of any or all of the matters that were put to you in cross-examination, have you any reason to go back on any of the propositions that you put in either of your two reports or when you were giving evidence in chief?
A No.
MR TYSON: Thank you very much.
THE CHAIRMAN: Professor David, the next thing would be for the Panel to put its questions to you. What I would like to do is take a short break to give the Panel time to consider any questions it might wish to put. Another 15 minutes would be sufficient for that, and we appear to have plenty of time in hand. We will come back in 10 to 15 minutes and I remind you about not discussing the case at this time.
(The Panel adjourned for a short time)
THE CHAIRMAN: The Panel is now ready to ask questions, so I will go round and see who is indicating.
Questioned by THE PANEL
MR SIMANOWITZ: Good morning, Professor. If I may, I would like to start with something you said right towards the end of your evidence, in fact under
re-examination, and then I will move to a more chronological system. You were talking about one of the reasons given by Professor Southall for keeping separate files was if requested to give advice the documents would be more easily accessible, and I think what you said was that it would be unwise to rely on a partial record to advise the Trust as to whether to disclose. I wonder whether it is possible for you to give an example of what would happen if you relied on a partial record?
A Well, basically, the Trust is asking the consultant the simple question “Is it all right for us to provide a photocopy of the set of medical records and send it off to the solicitors that have asked for it?” That is the question one is being asked, and, as I understand it, the only reason that anybody can object to that at the hospital end is if somebody feels that there is information in there that, if it were disclosed, could harm the child. The only way you can answer that question, “Is there any information in the hospital records which are about to be photocopied which might harm the child?”, there is only one way you can answer that question, and that is to see the hospital records. You cannot answer that question by looking at a subset of those records, or what ought there to be.
Q In other words, you are suggesting where there is a request to disclose the entire hospital records?
A It is always entirely – well, not always, but in a child protection context one is asked to supply the entire medical records, absolutely every piece of paper, and you cannot answer the question unless you can see them.
Q I understand. Thank you. If I could return now to your report at C3, and if you look at page 241.
MR TYSON: This is the first report.
MR SIMANOWITZ: Page 241, paragraph 392. Have you got that?
A It starts on the previous page, yes.
Q This is the second paragraph on page 241, and you are talking about accessibility, and at the end you say:
“A system may be needed which alerts staff to the fact that other information is available”.
I just wonder whether that “may” is correct, or whether it is “must”, because you seem to be suggesting that there could be other records and in some circumstances there does not have to be a note to alert the staff if there are those others.
A Right. I simply copied a chunk of text from the Royal College guidelines, well the Working Party report in 2002, so I am merely quoting their words. I suppose the question is could one improve on their wording---
Q In other words, do you consider that “may” is sufficient, or would you think that there was always a reason for alerting the rest of the staff that there are other records?
A It is very hard. I think it would depend on the circumstances. There is obvious logic to the question that you are putting, but I would need to think carefully and reflect on what the possible variations might be. Obviously, it is vital, for all the reasons that I have given, that if anybody in the team has child protection concerns it is vital that those are in the medical records so that if anybody else deals with those medical records they can see that people have been worried, if the child gets readmitted, it is obviously essential.
Q It was because you used the word “vital” on a number of occasions that it seemed to me that “may” was inappropriate.
A It is self-evident that it is vital.
Q Thank you. Page 242, paragraph 396, in paragraph 1 you refer to accident and emergency departments keeping their records separate, and you say nowadays it is common to put a photocopy in the records, but it did not used to be the case.
A That is correct.
Q Is there not a parallel then with the case we have here, that records in the past were kept separate without any indication that they were?
A I do not think it is a parallel, but it is an example, and all these are examples of where one might find information about a child somewhere other than the main records, and it is self-evidently undesirable if that information is not available in the main records. I do not really see this as a parallel because you are comparing arrangements in an A&E department with a systematic process of setting up separate records which should be in the main records. This is different, at the point when A&E departments were first established and people had not thought through where the records ought to be. The issues in this case concern correspondence between doctors at Great Ormond Street and doctors at Stoke on Trent, and that medical records that ought to have been kept in the main medical records. So I see that as being a bit different.
Q It is not clear to me why it is different because are they not part of the medical records if you are using that term?
A Well, they are not part of the main records, and clearly they are part of the hospital’s accumulated records, but the problem of course is that they are not available, and if somebody, in the old days we are referring to, asked for a child’s hospital records, they might not get the A&E department records because somebody did not trouble to provide a photocopy of them.
Q Those might be very important records.
A They might be.
Q When you are talking about the “old days” what period are you talking about? Is it similar to the beginning of the facts in this case?
A It is very hard to say. Originally, and if I think back to our own accident and emergency department, which has been the only paediatric one in the North-West, originally there were not separate records, but there might have been an attendance card, but where the child got to see the physicians, then the main hospital records would be made up. Then later on the A&E department became a sort of autonomous article, and then they had their own record system, and then further down the stream it was appreciated that that had to marry up with the child’s main records, but I could not put timeframes as to at what point people realised that you really had to have a system to make sure that when a child was seen in the A&E department, that a copy of that went into the child’s main records.
Q Turning to your second report, page 29, paragraph 68, referring to the Hempsons letter, I just want to know would you regard it as satisfactory is photocopies were placed in the file or the medical records file?
A The correct procedure is that originals should be placed in the child’s main records, and if one is going to have a copy somewhere else, then it should be a copy somewhere else, but the main issue really is not having any copy in the main records. So the correct answer is that the original should be in the main records, and if somebody wants to set up another file, that should have a copy, but I do not think there are going to be any serious consequences, or it is hard to think of many situations where there would be a serious problem if actually what was in the patient’s records was a copy and the consultant took the original home with him. So long as there was a copy in the main records, that is the main thing.
Q Whereas you think that if there was nothing in there, there could be serious consequences?
A That is the point.
MR SIMANOWITZ: Thank you.
THE CHAIRMAN: Dr Sarkar, who is a medical member.
DR SARKAR: Good afternoon, Professor. You said in the report that you are involved in a number of child protection cases, or you have been.
A Yes.
Q Would those cases have involved your attending strategy meetings?
A Yes.
Q Would there be any paper record of those strategy meetings kept and sent to you?
A Yes.
Q Where ordinarily would you file those?
A If that was a patient I was looking after, I would put those in the patient’s records.
Q If it was a case where you were not looking after the child, where would you have kept them?
A It would be unlikely that I would be invited to a strategy meeting. Strategy meetings are, for the benefit of colleagues who might not be familiar with the concept, are held where one has concerns of a child protection sort but one does not want to share those with the family to start with; what you want to do is to share them with other professionals, so you might meet up with social services, with the GP, with the health visitor, other people involved, but it would not be a child protection case conference. Is that clear?
Q Partly. Thank you for clarifying what a strategy meeting is. Now, our questions are not really questions, it is seeking clarification on your testimony, on the paperwork that already there is. I would like to take you to a hypothetical situation where you, as an expert in, say, cystic fibrosis, have been invited to comment on a suspected child abuse case in Hampshire. You have no direct clinical responsibility for that child. Your colleagues in Hampshire are very grateful for your involvement and seek your input. They hold a strategy meeting, not a case conference at that stage, minutes are kept, detailed minutes, and at the end of it they send you a copy saying, “Professor, just make sure that we got it right, and if we have, keep it”. In that hypothetical situation where would you file this paperwork, or would you have destroyed it?
A It is a hypothetical question, because I am not involved in that way, in that I do not usually get called in to advise on other people’s strategy meetings. If it is a patient in Hampshire, then the way I would be involved is if care proceedings had been initiated and the court has directed that various experts should be involved and one of those is me, then that is how I become involved. To answer your hypothetical question, I would have to find somewhere to put those. I would have no medical records for that patient. The child would not be under my care. So I would have to find somewhere to put them.
Q Continuing in the hypothetical vein, would you, rather than shred the paperwork, have created a file which you would not call an SC file but some other file?
A If that happened, I suppose I would have a plastic folder that I would put somewhere and wait and see if it is needed, or if my involvement is needed, and if, after a period of time, it is clear that I am not involved and I am not required, then my usual practice, not in exactly that situation, but my usual practice, when I want to get rid of bits of paper, is to ask for permission to shred whatever papers I hold, because I have got nowhere to store things like that. So that would be my procedure when I want to dispose of papers in a matter, which I do because I cannot hold on to them forever, then I ask for permission, and I always give the opportunity to the person I am writing to saying, “If you want me to return the papers to you so that you can store them, of course that is fine”.
Q Thank you. The next question takes you to page 240, paragraph 392, which is your Royal College of Paediatrics and Child Health, February 2002. Do you agree with this guidance in general?
A I would not disagree with it.
Q So it might be lawful to keep separate files if the keeper of the document finds that it is of such nature that it needs to be kept separate from the main bulk of medical reports?
A I could not really comment on the lawfulness of it; it says here it is lawful, and I do not know the answer to that.
Q But if it says lawful you would agree, or not?
A I would read that and say, I do not really know about that, I do not know who says it is lawful. There is no reference to any law that says it is lawful. It would clearly run counter from my practice, which is to not keep separate records, and that has been discussed in my report, that the only time that one would keep something separate is when the records are at the end of the bed; but otherwise, generally, one keeps them separate. My guess is that this sentence refers to the situation of an inpatient unit where it is there practice – and there are one or two units where this happens – for the medical records to be freely available to the parents, to be by the bed or at the end of the bed and it is self-evident that under that situation if you do not want the parents to know that you have child protection concerns you cannot leave those lying about, they have to be put somewhere out. So, I do not know about lawful, but it is commonsense.
Q My next clarification deals with a piece of paper which has not been addressed. It appears in the list of Appendix One as child H, item 2. It has been troubling me. You said in your testimony that you considered that part of the medical record.
A Yes.
Q I think Dr Southall’s team did not comment either way.
A I think it was flagged up by Mr Coonan as being an uncertain area that was yet to be clarified, that was how I understood it.
Q You thought that it would have been an ordinary medical record?
A I did.
Q I am not going to be hypothetical about this because you said that you do some legal work, but is it your practice to have, what I call it, a crib sheet summarising points from which you would then dictate a report? I do not know if you dictate or type yourself, but people who dictate might find it useful to have a summary sheet with salient points, and if you do that would that be part of the medical report, even if the patient was yours?
A First of all, my own practice is to type everything myself, I have nobody to do it for me, if it is in this kind of situation. If it is clinical, if I am looking after a patient there are medical secretaries to type things, but if I am preparing a report like the reports that you have before you, they have all been typed by me.
Q So you really cannot give an example from your own practice. So hence
I have to move to the hypothetical realm again. So a doctor acting as an expert, as doctors sometimes do on their own patients, have been asked by the court to provide a report, and for the purpose of providing the report, other than furiously going through page after page the doctor decides to make a bullet point summary of the whole case, from which he will then expand his dictation. He writes it down, does not put a date on it, but of necessity puts the patient’s name or initial. Will that be a medical record and then ought to be filed in the patient’s main bulk of medical file?
A It is a hypothetical question. It would not be my practice. You are talking about a doctor who has clinical care but who has been asked to prepare a legal report nevertheless?
Q It does happen.
A It is very hard to answer because I do not prepare summaries in this way and
I would not use that approach, but I could conceive of the possibility that somebody might, and if one was preparing a note or whatever materials one was preparing – it might be the first draft of a report, that would not form part of the medical records, and I have clarified that in my reports already.
Q Thank you, I was just going there. If the information in that crib sheet, sketch book, whatever you want to call it, or the first draft, contained therein is then subsequently produced in another written document, which is circulated and available in the main clinical note, as this particular piece of paper was, would you say that it probably does not make sense to file that piece of paper in the medical records as well?
A If I understand the question correctly – and I want to make sure I understand it – we are saying that I am hypothetically preparing a report and I have made some notes for the purposes of my report, but then I think we are saying that at some stage
I then send those notes to another clinician. That really is hypothetical because
I cannot think of a reason why an expert would send a draft or a note of their notes that they are using to prepare a report to someone else, unless one had permission and requested to discuss with another expert matters relating to the case. But normally one would not do that until one had finished writing a report. So I think the hypothesis is really completely out with my experience.
Q Let us take this manuscript entry by MS, whom I understood at that time was
Dr Southall’s junior. If the information contained in that manuscript three days later, six days later finds its way into a clinical document, a letter written to a consultant, copied widely, would there be any prima facie need for that piece of paper to be filed in the patient’s medical record?
A If it has been sent to other doctors who are involved then it is clearly part of the medical correspondence and is clearly part of the child’s medical records.
Q The letter is, but the piece of paper?
A Anything that was sent with it.
Q But the piece of paper was not sent, I am asking you ---
A I am sorry; I thought you said that a piece of paper was sent with the letter.
Q No, the piece of paper was relied on in writing the letter, the letter was sent to four different doctors. Would there be any need for that piece of paper to be filed in the patient’s medical record?
A It would depend on why that piece of paper was created. But if the hypothesis is that these were notes that I had made for the purposes of writing a medico-legal report, I do not see how I would rely on those if I was writing to another colleague;
I would rely on the medical records. I feel I am not being terribly helpful here.
Q No, it is okay; you tried. You talk about consent in your report. Could you, for the benefit of the Panel, myself included, give us what are the components of a valid consent?
A Can you refer me to the bit of the report we are talking about?
MR TYSON: If I can assist, as a matter of information the issue of consent and valid consent came up in relation to child H, about which Professor David had written a separate report, but that report is not before the Panel, at the request of my learned friend.
DR SARKAR: That is correct, I apologise. It is not actually in the body of the report but in your testimony you said there are issues about consent if a letter was sent about somebody, and you said that in certain circumstances consent is not only not required, you would bypass consent requirements if it is in the interests of the child. If there is a suspicion of maltreatment or abuse and a professional is writing to another professional alerting that professional that there might be concerns – not necessarily proven concerns – would that be sufficient to bypass parental consent?
A It would.
THE CHAIRMAN: Mr McFarlane is a medical member.
MR McFARLANE: Good afternoon, Professor. I have a number of questions. I am quoting verbatim from your evidence when you started and you said that medical records were the only way that healthcare providers are aware of medical history. Is that your belief?
A There may be other ways that people involved in the care of a child might obtain information – they might talk to each other – but ultimately the repository of information about a patient is in the medical records.
Q I see where you were getting from because also you can obtain aspects of the history by taking a history from the carers and the parents and you can also get aspects of medical history from examination, so operation scars, an appendectomy scar is an appendectomy scar and you do not necessarily need to rely on the notes there. You are obviously extremely experienced and you have been working in hospitals for 30 years at least and looking at notes. From your own experience how often do – for instance you have discussed X-ray reports and Path reports – X-ray reports and pathological reports get misfiled in the wrong notes?
A It happens.
Q Would you say that it happens often?
A No, not often, but it definitely happens.
Q Certainly in my own cases if I see something that is clearly misfiled I take it out of the notes and make arrangements to get it filed in the correct notes, and
I presume you would do something similar.
A I believe that one of my reports actually mentions that.
Q But from the case in point, whilst this report has been misfiled, as it were, it is not in the original record where it is meant to be.
A Correct.
Q So it have happened that a document was produced, two copies, one was put in the SC file, and the other one, which was intended to go to the main file, had become misfiled.
A Absolutely.
Q So this could have occurred in these cases?
A Yes.
Q I must admit that I have been involved in some child protection – not a great deal and it was over ten years ago – and I am the holder of a Diploma in Community Child Health, which looks at this in particular. From my own experience I find that the actual size of the folders of these particular children tend to get very large very quickly. Would you say that is true?
A It varies but some of them are very large and if you look at the documentation in these cases they are large.
Q So if you look at the actual records themselves you find that information within the files is quite often repeated. You will have documents and aspects of diagnosis or separate episodes, or what have you, and these are copied within the documents within the folders, so there is quite a lot of repetition of information within the actual files themselves.
A Maybe. You may have the same document filed more than once.
Q Yes. So one area we have in terms of the actual data that is kept on these SC files, is it not likely that the data is going to be filed somewhere else within the child’s main record?
A I cannot say what is likely or not. It depends on what it is. If it is an original item, then it may be it is not available anywhere else.
Q I see. From the point of view of the computer records – if you want to look at C10 – even if you just look at the very first page, you will find that in there you have got details of the patient’s name, the patient’s parent’s name, the patient’s address and details of their general practitioner and phone number and what have you. All these things are likely to be replicated elsewhere in the child’s file, are they not?
A The name and address, certainly, yes.
Q But in actual fact most of the data on this document will be replicated elsewhere and I would imagine that even the aspect of the multiple allergies and the low body temperature, in fact we have got direct evidence that those particular terms were used in the actual records themselves and were available within the actual records. So the data here, which was kept on a computer, there is no harm done by this data here being kept on a computer because it was available in the main file, is there?
A I am not sure that I would agree with that. Obviously some of the information is going to be on almost every page of the medical records; for example, the child’s name, date of birth and address is probably present on every single letter that has ever been written about the child. So that is absolutely correct. But there will be other things that are unique and, if you like, the unique thing about this document is that it is either a discharge summary, summarising the situation, giving the diagnosis at the end, or it is a summary of the investigation that is done. That is actually something that might not be duplicated elsewhere.
Q If we take this particular record into consideration, have you been asked to look for evidence that any of the information on here was unique?
A No, I have not. I am not sure that that was really the task that I was set, which was to answer the simple question: are these medical records or not? Whether the records had information that was or was not unique and could or could not be found somewhere else was not an issue really that I addressed.
Q When you were talking about other departments of the hospital which tend to keep their own separate notes – again I have to advise that one of the jobs that I do currently is a very specialist job working within a hospital setting in Scotland, and we do keep our own files within our department; they are accessible but we do keep our own files and we get referrals; we respond to them and we send out our findings. You did give a list of certain circumstances and what have you whereby it was considered to be acceptable for various units to keep their own files. Are you aware that one of the major defence organisations in its guidance to doctors does specifically say that child protection notes should be kept separate from the main record?
A Could we turn to the page where I deal with this, first of all?
Q Yes, please do.
A Could you remind me of the bit you are referring to? It is in my original report, is it?
MR TYSON: It is page 242, paragraph 395.
MR McFARLANE: Thank you very much.
A I think the question was that I had said it was “acceptable” for these separate records to be kept. I do not think that is actually what I said. What I was doing was to list a number of possibilities where records are sometimes kept separately. I do not know about the defence organisation recommendations that you are referring to. In my general dredging of regulations I tried to get what information I could. I certainly went to the website of the Medical Protection Society and the Medical Defence Union – this is all from memory I have to say – and I do not recall the medical Defence Union having very much but I remember the Medical Protection Society had quite a lot of documents about records and record keeping. I am afraid I cannot remember what they said. I did try to be extremely faithful and rigorous in reproducing everything that I could find. If I had found something that had a bearing, I would have quoted it, so I am not sure what is being referred to
Q Maybe I was asking you a little bit on the periphery of that. Certainly, genitourinary medicine clinics keep their own files, and they are usually kept very much separate from other files. Is that not the case?
A I am not an expert in genitourinary medicine and I have no knowledge of how they run their affairs.
Q Looking at the records that were made regarding the recordings of respiration that have been alluded to, was this particular technique of recording respirations an accepted technique or was this an experimental technique?
A What do you mean by “recording respirations”? Do you mean measuring oxygen saturation and respiratory rate, and things like that?
Q Yes.
A That is an accepted technique.
Q That is very useful, thank you. The other thing that struck me as very interesting was the large distances that people seem to be referred. We had someone in Elsham who was referred down to Southampton and also up to Stoke. Is this usual in child protection cases?
A It depends on what sort of expertise is being sought. I would say that in most cases there would be resources available relatively nearby, but there are some difficult cases where assistance is sought from elsewhere because there is some particular expertise that one can only get at a distance. That is a feature of working in tertiary units, that one does get referrals from well outside one’s area if one has got a particular interest or expertise in some area.
Q Very good. From the point of view of the letter, a copy of which was sent to an unspecified paediatrician, certainly from my own practice, when I practised as a locum and say if I had been referring somebody for a surgical referral and I do not know who it is, I would put down, “The General Surgeon”. So far as I know every letter has been seen and opened and the patient has received an out-patient appointment. When I was working in surgical specialities I was often referred patients and it just said, “The general surgeon” or “The orthopaedic surgeon”. Have you, as a paediatrician, ever had a referral to, “The paediatrician” at whatever hospital you were working at?
A Certainly. But the context is quite different. For example, we get referrals from general practitioners, a patient with asthma and that letter is likely to be written, “Dear Doctor”. It is sent to the paediatric department of the hospital and it is done for a very good reason, that the GP who is making the referral would like that patient to be seen by the consultant who has the shortest waiting list, so he does not necessarily want to put a name. That is standard practice. I think one has to bear in mind that in the context of child protection one would not want to be so relaxed about where letters went. That really is a situation where good communication is really important and if you were referring a patient with child protection concerns in mind, you would want to target that letter pretty carefully. So it is a different context.
Q I take your point on that, however, obviously Professor Southall may have been wanting to cover every base here because as we can see, with that particular child there were some aspects of dysfunctionality within the family. He was aware that they lived on the border between one particular hospital and another and it could have been likely that the parents presented at either hospital. Given that there is usually some appreciable delay between dictating a letter and actually having it back for signature and subsequent sending out, if he was not terribly sure of whichever doctor he was referring to, he could have just dictated that at the bottom and subsequently found out somebody and put a “with compliments” slip in, and that could be done manually a week later.
A As a hypothetical quite clearly that is possible. It is not something I would do but if the secretary was involved in that, then they would usually add in the details for the copy that goes in the hospital records as well.
DR SARKAR: Also quite often they may just have locum consultants at a small hospital and there may have been some information on that. As I say, this is speculative. Can I say thank you very much indeed. You have been most helpful.
MRS LLOYD: Good afternoon, Professor David. Going back to C3, Tab 7, paragraph 392 of your report, one of my colleagues asked you a question about the paragraph you quoted from the Royal College. I just wanted to ask you in relation to systems being needed to alert other staff as to whether there is other information available, whether you have any personal experience of such systems in place?
A No, because the units where I have worked have not split records up in that way and I have never personally worked in a unit where records were available at the end of the bed or at the bedside. In all the hospitals where I have worked, they were kept in the ward manager’s office or what we used to call the ward sister’s office, so the issue of having separate documentation did not arise.
Q The only other question I have is that, in your reference on page 242 on the other departments and services that are likely to hold their own records because they are all a speciality in themselves – for example, occupational therapy, physiotherapy – in most cases would not the clinician be initiating the involvement of these services and would there therefore be some indication in the main record that other departments and services were involved?
A That is exactly right with the exception of the A&E department where there probably would not be that flow chart. You are quite right otherwise.
Q So in a case where special monitoring is being done, in the case of Professor Southall, there would not be any particular indication, as this is perhaps not widespread activity, in the file to indicate this.
A I presume there would be something in that if the child is admitted for the purposes of monitoring, then one of the things that should happen is that one of the doctors in the team – usually a junior doctor such as a senior house officer or possibly a registrar – would take a history, (it is called “clerking”), where they would admit the child, write down the basic plan and that process would include mention under the plan of action that monitoring would take place and some details of that would be provided. So there would be reference to that in what we call the “clerking in” notes, when the child was admitted to hospital. If other tests were planned, there would be reference to those as well.
Q Would it state who was doing the special monitoring?
A Not necessarily. I mean, if we take out special monitoring, there might be a plan for the child to have a CT scan of the head. One would not say who was going to do that. You would know it would be done in the X-ray department. Similarly with the monitoring, you have got multiple people involved. You have got the nurses involved at the clinical end, because they have got to connect the child up to the various monitors, and you have got somebody who has got to keep these activity charts where you record how the patient is and whether they have got any symptoms, and then this lot, plus the recordings that are made, are then handed over to somebody else who analyses the data. So you have got lots of people involved.
Q What I was trying to establish is whether you could clarify whether it was possible to trace, an audit trail if you like, to other records that were being kept with regards to the monitoring?
A I am not sure about an audit trail. I mean, if you have got a note that investigations are being done, then I suppose one can then go to the place where they are being done to see what records there are.
Q Perhaps audit trail is the wrong word. What I am trying to say is if it is established by the medical record that the physiotherapy department is involved and somebody wanted information – a clinician or another member of the hospital staff – wanted information about the physio’s input, could go there, and what I am trying to gauge is whether, by the clerking in and everything that is being down which would be in the medical record, would another clinician know that they could find other recorded information by special monitoring in the sense of a special case file?
A It is hard to know what other people would know. If we take your physiotherapy example, if your hypothetical child is admitted to hospital and one of the things you say is “Refer this child to the physiotherapist”, and then the physiotherapist will see the child, they will make their own notes which they will keep within the physiotherapy department, but they will usually write in the hospital records, saying, “Date, seen by physiotherapist, signs of left hemiplagia. Recommend the following”, so there would be something to show that the physiotherapist has got his or her hands on the case, and I think it would be evident that if one wanted to know more, one could go to the physiotherapist and say, “Could you dig out your records?”
MRS LLOYD: Thank you very much.
THE CHAIRMAN: Mr Simanowitz has got a supplementary question.
MR SIMANOWITZ: Sorry, I did not ask these questions before. One of them is a question of clarification, and I am not sure whether you are the right person to answer this, but it is something that is troubling me and perhaps you can help. In C10, if you look at document 3, and there are others, these purport to be letters but they are not addressed to anyone. You will see letter 3 says “Dear [blank]”. In that situation would that be part of the medical records?
A Yes.
Q Would you file that even though it is not addressed to anyone?
A It does not matter whether it is addressed to anybody, it is clearly a summary of the case.
Q Is it not incomplete?
A Well, it might or might not be. I mean, I am not a great expert on computer systems, but one way that they operate is that you have data of names and addresses in one file and then you have your letter in another file, and then you have a process called merging, where you put the two together, then you print the thing out to produce a report. If you go back to the computer and look at the data, it will not be merged unless you tell it to merge it, so you might have gone to the computer, looked up the records for Child H, but it would not have the merged name of the GP. So it is still a summary of the case.
Q So this could have been printed out without having given the instruction to press the button to merge, in other words?
A I think that is probably what happened. I mean, I was not there, but my understanding is that these were printed out separately. We have been shown one by Mr Coonan this morning that was in the patient’s medical records, but I think these were specially printed out as a result of a visit to the hospital.
Q Thank you.
A So I think it is understandable as to why some of those details were not there.
Q That is helpful. I understand the position. The last question relates to disclosure of documents and the practice, and you have got long experience of this. Is it right that certainly in the old days consultants would keep separate records for their own purposes and often in litigation those records would not surface because they had been kept separate, not necessarily deliberately, but they had been keep separate and were therefore not known about?
A I have never come across that.
MR SIMANOWITZ: Thank you.
THE CHAIRMAN: It now falls to me to round up the Panel’s questioning. I am a lay member. I would just like to go back to, if you could help me with, because I am a lay member, the whole business of records of patients so that I can just be very clear on this. Is there any difference between the term “hospital medical record”, does that mean something special as compared with, say, the term “medical record” in general?
A Yes. I mean your hospital records relate to when you went to hospital and were treated for a, b and c. There will also be, for all of us, a general practitioner’s set of medical records. So the word “hospital” means that it is records that relate to a patient’s attendance at a hospital, but there will be other medical records, particularly the GP will have medical records on everybody.
Q If a patient has been seen at more than one hospital, do those notes get brought together?
A No. Each hospital will have its own records. So if you have been lucky or unlucky enough to be treated at four different hospitals, each of those four hospitals will have a separate set of records for you. The only time that they would be merged is if those hospitals were all part of the same Trust, but apart from that they will be separate.
Q You have pointed out in your report other types of medical information that might be retained by different specialties for one reason or another, and indeed Mr McFarlane suggested others, so any individual patient, in some sense there might be medical information about them in many, many different places?
A That is true.
Q Is there any system in place that makes any effort to try and link those so that if the patient shows up in one place, suppose a completely different place from any of those, is there any kind of way of finding out where information about that patient is located?
A The answer is there is now, in that there is a direction that there should not be separate records in separate departments, and what I described as a situation that could happen is quite clearly now frowned upon, and the Department of Health has given directions that this should not happen, and Trusts up and down the country are now making a lot of effort to stop separate records being kept, so that in the future there will not be separate physiotherapy department records, there will not be separate genetics department records, they will all be in the main hospital records. So there is a system, but it has not been fully implemented yet.
Q Perhaps in the context of this case we heard that the SC files that are in contention originated in 1980. Was there a different philosophy at that time?
A Well, my answer to that would be “No”, that the philosophy has always been that basic bits of medical records, like correspondence from one consultant to another, should always be placed in the main records.
Q By “the main records” you mean---
A I mean the main hospital records.
Q You mean a hospital doctor should be placing everything in relation to a patient that she or he is seeing at the hospital where they work in this one entity?
A That is exactly right. The fact that there was a physiotherapy department that kept its own records really does not have any bearing on that.
Q The acknowledgement is that in practice that has not always been the case because---
A No, I do not think that is true. The acknowledgement is the arrangements have been standard, that if you have got correspondence between consultants they were stored in the patient’s hospital records. What I am saying in my report at paragraph 395 is that if you go to a hospital, until now you will be able to find information about patients scattered in different places like the physiotherapy department, like the path lab, like the EEG department, and that does not have any bearing on where you file correspondence between consultants.
Q Thank you. That helps very much on that point. Two other separate matters. If you could look at the Hempsons’ letter. This is C2 6©. I think it may have been in re-examination you were referred to the two reasons that were given as to why Professor Southall used special case files in two situations.
A Page 12.
Q That is the one, yes. You commented on one being, where it says:
“To keep documentation relating to the specialised monitoring of children ….. In our submission these documents were not part of the usual medical records…”
Now, am I right in thinking that originally when you did your report, you were looking at a number of documents that do not now feature in our Appendix One?
A Correct.
Q Are you able to comment on whether this category 1 refers to documents that were in an older version of Appendix One, and do any that fall into that category, do they feature in our present Appendix One?
A No, I do not think they do.
Q They do not? They are not in our present Appendix One?
A I do not think so.
Q So in fact the documents that might fall into that category of not being part of the usual medical record in Dr Southall’s submission are now featuring in our Appendix One?
A That is what I understand.
Q So that does not really apply to our consideration?
A I follow.
Q Is that fair in your view?
A Well, it is not quite right. The things that have been taken out, as it were, were charts that were kept when children were being monitored and observations were being made about their state and their symptoms, and whether any events happened. That has all been taken out. What is left, if you like, is the Appendix Two documents, which are the summaries of those investigations.
MR COONAN: Well, madam, I think there may be a limit, with respect, as to how the Professor can deal with this, because one would have to ask the maker or Professor Southall what was intended by the words that were used in that letter and the basis on which they were used.
THE CHAIRMAN: I was just seeking clarification on, I think, some answer that Professor David gave, I think, in answer to a question in re-examination, when he referred to that, and it was not clear to me whether he still thought that that referred to any documents that were under our consideration, but I think he has answered it now.
MR TYSON: As the drafter of Appendix One and Two and the heads, I can give information by way of illustration that you will note in the second report of the Professor at D, in relation to each and every child, for instance at C3 7(b), page 14, there is a discussion at the beginning of paragraph 28 on infant activity level, do you see that, and that discussion goes on and you will note in respect of that that the professor says that in certain circumstances, keeping those in a separate file could be valid. We see that at paragraph 32. If you look at your initial heads of charge in your yellows, you will see, for instance, under Child A there were other matters in the original Appendix One under 2 to 5, and under Child A there were originally four other matters originally in the appendix bundle but not now, is due to the fact that you have the original appendix bundle, then you have got the second report from the professor because he said that it could be valid, we took them out. So Appendix One has what we say are invalid matters. I hope you understand the point. Appendix One is a working document that contains all the matters that we say were invalidly in the SC files.
THE CHAIRMAN: I think basically I was seeking to clarify that comments or criticisms about this reason one really stem from documents that are no longer in Appendix One. Is that not the case?
MR TYSON: No.
THE CHAIRMAN: One final question is, you were asked about the use of the word, “tampering”, and we took the opportunity in the break, we had to consider the meaning of tampering. I just wanted to be clear that we were understanding this the same way, because obviously we want to see a word that is in a head of charge as having the same meaning. As I had understood, it seems to be reflected in various definitions that we have to mean to interfere in a harmful manner; to engage in improper or secret dealings as in to “tamper” with a jury; to play around with, alter or falsify, usually secretively or dishonestly, to interfere without authority so as to cause damage. All those definitions seem to imply a level of perhaps either intent or dishonesty or whatever which I think you said you did not intend in your use of the word.
A That is absolutely correct.
Q But we have in the heads of charge something that says it amounts to tampering with, so I wanted to be quite clear whether the Panel’s view of the word “tampering” was the same as your view when we were perhaps looking at the evidence in your report in connection with this head of charge?
A I accept that there are obviously many different definitions of the word, and some of them imply intent and quite clearly that is not what I am saying. I suppose my summary of it is just two words, and that is damaged integrity – the integrity of the medical records has been damaged – and I use the word tampering simply because it is a word that appears in the context of medical records when that has happened.
I accept that many examples are where somebody has intended something quite dishonest, and that is not the case, but it is damaged integrity of the medical records is my use, if you like, of that record.
Q I think that perhaps the distinction is that tampering in its most usual word would be to do something to something that exists, to alter it, whereas I think that you are saying, as I read what you said in your report again, that to fail to put something in that in your view ought to be there amounted to tampering because, as in the words you are now using, it damaged the integrity. Would that be a correct way of interpreting how you have used the word?
A Yes. I have not gone anywhere near the factual matters as to who did what and whether something got taken out or whether it was never put there in the first place; I have not attempted to go near that.
THE CHAIRMAN: I seem to have provoked yet another question here. That completes my questions anyway, Professor David.
MR SIMONOWITZ: This does follow one of the questions the Chair asked you. You were talking about separate departments and if there was correspondence it would go into the medical records. I suspect it could arise that, say, a consultant in one genetics department wrote to a consultant in another genetics department and got a reply. Where would that correspondence go?
A I think that would all go in the medical records. I do not think that genetics departments keep separate medical records, what they keep are separate records of genetic investigations and things like that.
Q Perhaps I selected the wrong separate entity. You have listed a whole number, are there any of those?
A Really what I was saying is that I do not think they have any bearing on the central issue of where would you expect to find correspondence between two consultant paediatricians, and the answer is that you would expect to find that in the main hospital records. The fact that the physiotherapy department has its own little records does not really have any bearing on that.
DR SARKAR: This follows on from what my colleague Mrs Lloyd was asking. If we accept that there are separate departments, divisions in the hospital who tend to keep their own records, in the main hospital record one would expect to find some clue as to the existence of those records, I understand. So if the handwritten note said, “Refer to physio” that would be a clue. By examining the notes of, say, child H and child D, would an ordinary person like me be able to ascertain that there exists a bunch of different notes which were called secret files, SC files, whatever? Was there any indication because you might have examined the entire medical records of child H and child D?
A I do not think there would be specific reference. I think a local person on the unit, as has been pointed out, for example a nurse working on the unit, would know that when a child has been monitored there will be a separate repository of information about that. But I do not think that anybody from outside the hospital who was not absolutely familiar with those local arrangements would know that, unless there was a specific entry that says there are other records in this case. I am speaking from memory but I do not recall entries of that sort.
Q In some cases in psychiatry it sometimes has a sticker on the buff files, “Other notes may be available” or something of that nature, but in your examination of the notes of these two children, D and H, you did not find anything like that, like a flag directing to the existence of separate case notes.
A I have no recollection of it and, to my recollection, I had never heard of special case files or SC files until I was instructed to report in these cases.
THE CHAIRMAN: Before Professor David stands down are there going to be further questions from counsel? Can I enquire, if there are, whether there are many?
MR COONAN: I have none at the moment.
MR TYSON: I have about six or seven.
THE CHAIRMAN: So that might take a little while.
MR TYSON: I am conscious of the time and it would be better if they were not dealt with now as they may take some time into your lunch break.
THE CHAIRMAN: In that case we will take a lunch break now and the final questions will be after lunch. You are still on oath, Professor David. If we reassemble at two, please.
(Luncheon adjournment)
Further re-examined by MR TYSON
MR TYSON: Professor David, I have some questions arising out of questions put by the Panel. You were asked questions by various Panellists including, in particular, Dr Simanowitz, about your first report, which we see at 7(a), page 242, paragraph 391. There are a number of questions arising out of the Panel questions on this. Do you understand Appendix One and heads of charge 10 to 12, to be dealing with paediatric records as opposed to A&E records, other department records and the like.
A Yes.
Q In relation to the paediatric part of the hospital medical records, again is it your experience that if you were wanting to access, say the A&E department notes, that there would be any problem in asking, for instance, for the A&E department notes?
A No.
Q Is it your experience that any of these departments that you have listed in paragraph 295 would have parallel files?
A What is your definition of a “parallel” file?
Q A file such as an SC file going, as it were, alongside the main file.
A No, I have not come across that.
Q You were asked by Dr Sarkar in this context whether one could, by looking at the notes, discern the existence of a separate file relating to these children being made, for instance, in relation to Child H? Were you involved in a different professional capacity in looking at the files of Child H in the past?
A Yes.
Q Did you, having looked at all the notes there given, discern the existence of an SC file in the background?
A I have got no recollection of ever having heard of an SC file until this present case.
Q Can you see any reason at all for having – I am going to break this down into parts – clinical correspondence between consultant paediatricians anywhere but in the child’s hospital medical records?
A No. I can see no objection to an extra copy being somewhere else.
Q That leads me to my second question. Can you see any reason at all why original clinical correspondence should be kept in a separate file?
A Original documents should be in the main hospital records.
Q You were asked various questions by Dr Sarkar about the manuscript clinical note which we see in C2 at Tab (h).
A Is this the page 20 document?
Q Yes. It was suggested by Dr Sarkar that it may be some form of crib sheet prior to the preparation of a report. Do you recall those questions?
A Yes.
Q Can I ask you to look at what Dr Southall says about that particular document, which we see in the same bundle, C2, at Tab 6? It is the last © tab, page 19, which I think is the last document in the whole of C2.
A I have page 19.
Q Do we see what Professor Southall himself says about that, that this document looks like an original? He says,
“It is a note made by Dr Samuels. I think it is the note made by Dr Samuels on 16 March 1990 when he reviewed Child H prior to discharge”.
A Yes.
Q Do you see the reference there where it says, “See page 60 of the Brompton Hospital notes”?
A Yes.
Q Again, in the same bundle please, can you turn back to (e), the first document in that bundle? Is this page 60 of the nursing notes to which Professor Southall made reference in his explanatory document that we have just looked at?
A I am sorry, was that a question?
Q Yes.
A Could you repeat it?
Q I want you to look at the first document in the bundle and the last document in the bundle. Turning to the last document in the bundle, page 19, you will see it says, “See page 60 Brompton Hospital nursing records”.
A Right.
Q Going to the first document in the bundle we see that that is page 60.
A Indeed.
Q If I have to prove it I will, but can you take it from me that these are the nursing notes there referred to?
A OK.
Q Do you see on the nursing Cardex note for 16 March 1990, it records that the child slept well, etc., and records that the overnight monitoring continued then,
“pm Up and about all care given by parents s/b Dr Samuels. To go home with PCO2 monitor”.
A Yes.
MR TYSON: As it shows in those notes, the child was seen at that time by Dr Samuels. Does that assist you as to whether or not this document on page 20 that we have been looking at was a clinical record of that clinical visit or whether it was a crib sheet for a possible report?
MR COONAN: I am sorry, I object to this. True it is that this line of questioning was opened by Dr Sarkar, but this is a matter that must wait for the evidence to be given. Otherwise this becomes a wholly speculative exercise.
MR TYSON: He is allowed to give his impression, which is what he was asked for by Dr Sarkar, and it arises directly from a question posed by the Panel so I am entitled to ask the question that I do. The weight of the answer is, of course, a matter for the Panel to consider, but he is entitled to give his view on the question that he was asked by Dr Sarkar. Such weight that the Panel give to his answer is another matter, but he is entitled to answer the question.
MR COONAN: Madam, it is entirely a matter for you whether you think this is a profitable line asking an expert to decide the status of a document when he has not heard the evidence.
THE CHAIRMAN: Mr Tyson, I have been wondering myself about the line of questioning, if I can put it that way, as to whether this witness had knowledge in order to answer this particular question.
MR TYSON: He can answer as best he can. What value you put on his answer is a matter for your evaluation, but it does not stop me asking the question, bearing in mind it is a direct area about which he was asked by Dr Sarkar.
THE CHAIRMAN: Perhaps it would help if you could reiterate the question. There was quite a long preamble to it.
MR TYSON: I had to show him the documentation. I have shown you the explanation given by Hempsons, and I have shown you the nursing record there referred to in the nursing Cardex. Does that assist you in answering the question that you were asked by Dr Sarkar, as to whether this document was a “crib sheet”, to use his own words, to help him dictate a report.
MR COONAN: I do object to this. I am sorry, but Dr Sarkar’s question, as I understand it, was put on a hypothetical basis. He was not asserting as a fact that it was a crib sheet. He was asking whether, if it was, what one might expect to happen. That, as I understand it, was the question. If it had been a direct suggestion, then I accept that my learned friend would be entitled to ask the professor in re-examination. But there are limits because it is becoming a speculative exercise.
MR TYSON: I can only deal with the question that was asked. I am entitled to ask questions arising out of Panel questions. That must go without saying. If a hypothetical question – I do not necessarily accept it was hypothetical – but let us assume for the sake of my learned friend that it was a hypothetical that was asked, whether this could be a crib sheet, I am entitled, having shown the professor what Professor Southall has to say about it and what the nursing Cardex says about it, to ask him whether it assists him in answering the question he was asked by Dr Sarkar.
THE CHAIRMAN: Some concerns remain, especially as there is a difference between you. I am going to ask the Legal Assessor for his advice on that.
THE LEGAL ASSESSOR: Dr Sarkar’s question was based on a hypothesis. To extend the hypothesis into the field of speculation, which you may think – it is entirely a matter for you – is the effect of Mr Tyson’s question, the Panel may find to be wholly unhelpful. Indeed, speculation based on hypothesis you may feel would lead you to a conclusion that this is not a question which should properly be put, but it is of course entirely a matter for you.
THE CHAIRMAN: You heard the advice, Mr Tyson.
MR TYSON: Of course I accept it, madam, and will move on. You were asked by Mr McFarlane, I think it was, about the unnamed paediatrician letter in relation to Child H. Mr McFarlane was putting to you various examples of when he in his practice might say, “copy to general surgeon”. You answered that the context of this letter is quite different. I was wondering whether you could explain further as to why the context of this letter in these circumstances is quite different.
A I was trying to explain, I think the analogy was given in relation to general surgery and a referral to an unnamed surgeon. I was simply saying that that really is a completely different situation from a child where one has child protection concerns, where the need for really clear communication is quite clear and not disagreed by anybody. I was saying that we get referrals – I get referrals or see referral letters – that are written, “Dear doctor”, because it is quite clearly immaterial which of the consultants end up seeing the patient and there may even be an advantage in not putting the name on because the patient may get seen quicker that way. But that is really nothing to do with the need to communicate very carefully and very precisely when one is dealing with a child protection case. I think they are really quite different scenarios.
Q Can we just look at that letter for a moment? It is in C2, Tab (i), about the fourth or fifth letter in. Can I ask you to look at page 24, please? Can I ask you to look at the bottom sentence and the top paragraph, where it says,
“We also feel that it is vital that Child H has his overall care managed by a local paediatrician”.
Is this letter an effective or appropriate way of informing an unnamed consultant paediatrician to deal with the management of his overall care?
A I would say no, only if it was part of a referral process that included a specific letter of referral.
Q Second question, if it was a letter seeking to alert the unnamed consultant paediatrician about child care concerns, again is it, on its own, an appropriate or effective means of passing on those concerns?
A It is not.
MR TYSON: That finally completes your evidence. Thank you very much.
THE CHAIRMAN: Thank you professor. You are now released from oath and may stand down.
(The witness withdrew)
MR TYSON: Madam, as far as where we go from here, I would ask you to rise for a short time so that my learned friend can have a discussion which may or may not require your determination. If I can indicate what the nature of the discussion is, it is that I will seek to call evidence from three of my clients, Mrs A, Mrs H and Mrs D as to the difficulties that they encountered in seeking to unearth the SC file. I also seek to call evidence from the Head of Administration at the Royal Brompton as to his knowledge, or, as he will put it, lack of it, of SC files when it was his responsibility to hand over documents which were requested. At present, as I understand it, my learned friend is seeking that that evidence cannot come in---
MR COONAN: My learned friend really does not represent the current position. I think we would be grateful if my learned friend did not embark upon his understanding of the position until we have talked. It is far better to do it that way. My learned friend knows full well, because we have agreed that we should have a short chat, and then we can get on with the next piece of business, but to spend time telling you about what the issues are going to be between us at this moment probably does not help you.
THE CHAIRMAN: I will take it that Mr Tyson was just in the interests of being helpful to the Panel so as not to leave us in a complete state of mystery, but we understand that your chat is to do with whether certain witnesses should or should not be called and where---
MR COONAN: Or to the extent of their evidence.
THE CHAIRMAN: Yes. So you are asking for a short adjournment?
MR TYSON: That is exactly right, madam. I was not having a dig at my learned friend, I was just trying really to tell you what we wanted to have a chat about.
THE CHAIRMAN: Perhaps what might be of even more interest to the Panel might be is if when you say “short” whether you are talking about five minutes or an hour?
MR COONAN: Oh no. Madam, I have done the reading. There are a number of queries I have got. I am sure that we can sort this out. You want an indication from me now, can I say no more than 20 minutes.
THE CHAIRMAN: Thank you. We will not hold you to it, but thank you for the indication, and we will retire downstairs until you tell us you are ready.
MR COONAN: Thank you. If we hit a problem of any sort, could we get a message to you through the usual channels?
THE CHAIRMAN: Yes. I will ask members of the Panel to make sure we stay available in the members’ room.
MR COONAN: Thank you very much.
(The Panel adjourned for a short time)
MR TYSON: Madam, I am extremely grateful for giving us the time. It has in fact saved a considerable amount of time, as a result of which we will not have to have a determination by the Panel this afternoon, and my learned friend has indicated, and I now indicate to you, that I can give to you, the Panel, evidence of the individual patients’ attempts to find their SC files, and attempts by the administrator of the Brompton Hospital, also dealing with his knowledge or otherwise of SC files. Accordingly, it is my intention to call this afternoon Mrs A - and again I am grateful to my learned friend, and I have to say there has been considerable cooperation behind the scenes in making this case be effective, and I am grateful for that and I publicly acknowledge it - I call Mrs A, and my learned friend has indicated that for a lot of what she has to say I can lead her through her witness statement, as I take you to various documentation of her attempts or otherwise to discover matters relating to her son’s medical records. To that end, can I ask you, please, to go to C2 at section (a), which you may not have even an (a), and I am going to ask you to put in some material under (a) and we will get the dividers to you. (Document handed)
THE CHAIRMAN: After which number tab is this?
MR TYSON: This is going to be under 3, immediately under number 3, and I have also got some tabs for you to put in. (Same handed)
THE CHAIRMAN: Mr Tyson, while this is being circulated, can I say that I think you had originally indicated you would be calling your witnesses after Professor David next week. You say you have a witness here this afternoon.
MR TYSON: Yes.
THE CHAIRMAN: Given that the Panel started early this morning, we were not really wishing to sit later than around four-thirty to quarter-to five, but obviously we would not wish to recall a witness for a few minutes on Monday. You have no idea of course how long this witness might take at this stage.
MR TYSON: Madam, can I just indicate two matters in relation to that. I mean, one is pushing on a Friday at an open door as far as I am personally concerned because I do not live in London, and so of course on Fridays I am rather anxious to be elsewhere, but my learned friend has indicated that (a) I can lead this witness, and (b) that he wants to review his position after this woman has given her evidence in-chief and it may be that he has no questions in cross-examination. So we are hoping that this is going to be a short witness that can be slotted in. That is the hope.
THE CHAIRMAN: That is a helpful indication.
MR COONAN: I think the plan was, and I entirely agree with Mr Tyson, that at the end of her evidence, taken much more shortly than would otherwise be the case, if I could have two or three minutes literally and I could make a decision, and if there is no cross-examination then I for one would be hopeful that we could conclude her evidence today.
MR TYSON: I call Mrs A.
MRS A, Sworn
Examined by MR TYSON
(Following introductions by the Chairman)
MR TYSON: Mrs A, we are going to call you Mrs A during these proceedings.
A Fine.
Q I was wondering if, on a bit of paper, which hopefully is in front of you, you could write your name and address down.
A Just on here? (Indicated)
Q Yes.
A Okay. (Witness wrote down her name and address)
Q I wonder if that could be shown to Panel members so they can put your real name to the files. (Paper shown to Panel members) Mrs A, I am going to ask you some questions about your son, and in particular I am going to take you to some documents, and in particular I am going to take you to some documents which show how he arrived up at the Brompton Hospital.
A Yes.
Q Then I am going to take you to some documents that refer to after he went to the Royal Brompton and what happened thereafter.
A Okay.
Q Then I am going to take you to some documents to show your attempts to trace his medical records.
A Sure.
Q First of all, can I ask you, please, there should be a bundle in front of you at C2, section 3, tab (d), and, Mrs A, this is a letter – have you seen this before?
A Since we have had the SC file, yes, not previous to that. The SC file came to us fourteen months ago from Field Fisher Waterhouse---
Q This is a letter dated January 1987, and it refers to your child, who we are going to call Child A.
A Yes.
Q You can see that, in January 1987, Great Ormond Street referred your child to the Brompton Hospital, and we can see that at the top of that letter (it is a letter from Great Ormond Street Hospital to Brompton Hospital) it refers to a child there mentioned. Since that time, have you changed your name from, as it were, “C” to “A”?
A Yes, that is right.
Q We can see that your child was referred by Great Ormond Street. In the first paragraph:
“He came to see us for a third opinion about his episodes of unexplained pallor, hypotonia, shallow breathing and small pupils.”
A Yes.
Q So you see that this letter set out at that time your child was about five months old?
A Yes, he would be, yes.
Q We can see the letter goes on to refer to the fact that he was admitted to a hospital in Cornwall.
A That was the first hospital.
Q Yes. Then the next paragraph deals with his admission to a hospital in Hampshire.
A Yes.
Q It sets out, on the bottom paragraph, his past medical history, and then, going over the page, various investigations that were dealt with at Great Ormond Street Hospital.
A Yes.
Q On the last page we see that there is a description by Great Ormond Street that your child has:
“…had numerous episodes while on the ward most of which were very mild in that he was easily rousable when the ward staff arrived. All attacks occurred when his parents were in the room apart from one which occurred within ten minutes of them leaving the cubicle. None occurred at night. We witnessed one severe episode during which his pupils were very constricted (a feature of even his mildest episodes) and he was unresponsive to pain, with shallow respiration. His parents commented that the Pethco he had prior to the CT ….. made him look similar and on that basis we attempted to reverse an attack with naloxone which we did convincingly on one occasion. In view of the negative toxicology screen from Guy’s the significance of this observation remains unclear.”
So that was the letter that brought you and your child to the Brompton Hospital?
A That is right, yes.
Q If you go to the next tab, which is (e), we see the notes there of your child being admitted, and we see the Brompton’s doctors’ handwritten notes, and if we look at the bottom left hand corner of the first page we see that your child was admitted on 10 January 1987 to the Rose Ward.
A Rose Gallery, that is right.
Q If we carry on through the pages – and the Panel has been through all these pages before – I need to take you to one matter, and that is on a page which has 13 on the bottom of it. Do you see that there is a section at the bottom that says “From conference 4 February 87”?
A Yes.
Q Do you now know but did not then know that a strategy meeting was held about your child to which you were not invited on that day?
A We knew nothing of any of the meetings.
Q Was there another meeting, turning over the page, on 13 February 1987, a second conference, where a decision was made at that conference where you were not there, as we can see, and that was to make your child a ward of court?
A Yes. Can I explain something here? Yes, this is Friday 13 February, the second case conference and we were told on the ward that we were to go to a diagnostic meeting and Southall came and met us on the ward and took us down to this meeting, which actually turned out to be a case conference, and my husband and
I were expecting to see doctors and expecting to have a final diagnosis for our son because the MMR scan had been completed and we did not know the results of the MMR scan. So when we walked in we thought we were going to have a medical meeting and the reports on that scan and in fact we walked in and it was a room full of solicitors and social services and we were served with wardship documents instead, which was a bit of a shock, as you can imagine.
Q Is that recorded on this page where it says:
“Parents very upset and angry by court order. (Had no warning).”
A I was absolutely devastated; we had absolutely no inkling at all that that was about to take place. In fact just a mere few days before this conference it is mentioned in the notes that our son was to be sent home and TTOs had been prepared for us to go home. Then they were to carry out this brain scan. So we expected to get the report of a brain scan and we were supposed to be told how to care for child A at home and instead of that we walk in and we are told that there had never been anything wrong with our son, that our son had always been perfectly normal, that we were never to use the word “episode” ever again, that he had never had any episodes – this is Southall talking now to me – we were never to refer to episodes again, we were never to discuss them with anybody, we were never, ever to research them, our child had always been perfectly normal.
Q Thank you for that. I need to now channel you down one path in particular and that is the subsequent path after this. Your child was warded and were your first solicitors Hodge Jones and Allen.
A Of Camden Town, yes. It is very difficult to find a solicitor on a Friday afternoon in London, I can assure you, but we were desperate. We did not want to lose child A into care, obviously.
Q Amongst the instructions that you gave those solicitors did you ask them to obtain all your medical records?
A Because the medical record would have shown and it shows here today that our son was not normal, so we asked them for the medical records and we also asked them to prepare psychiatric reports.
Q Did you obtain from Hodge Jones and Allen child A’s medical records?
A No.
Q In particular, did you obtain them from the Brompton Hospital?
A Certainly not, no.
Q Did there come a time when you had a second set of solicitors called Graham and Graham.
A That is right.
Q Did you ask them to get all of your child’s medical records?
A Yes, because obviously child A was under an interim care order by this time so we needed the medical records to exhibit them in the High Court.
Q Did you get them via that firm of solicitors?
A No.
Q Did there come a time when you started acting for yourself?
A Yes, very shortly afterwards, August 1987, when we took over the case ourselves, yes.
THE CHAIRMAN: Mrs A, you may not be aware of the fact but for the purposes of this hearing we are referring to your son as child A. I do not think there is anybody in the public gallery reporting but if there is no name should be reported.
MR TYSON: Can I take you to C2 at section (a). Is this a letter written by you and your husband dated 26 August 1987?
A That is right. My husband by that time was acting as the family barrister, so, yes, he drafted it and I signed it.
Q Can I take you to the first paragraph of that?
“This is to inform you that we, the parents, will be representing ourselves in the High Court of Justice in London …” --
in the case that you there mention --
“… to decide our son’s future under a wardship. In preparing our defence we wish to pursue medical notes held by the Brompton Hospital and we believe we have a legal right to them. (See enclosed notice).”
Was that a letter written to the Brompton Hospital on that date?
A That is right.
Q As a result of that letter did you get any medical records relating to your child?
A No, we did not and there was a legal argument about whether under the wardship we were entitled to them, and I think there is a letter that states, no, you can only have them if you pursue litigation.
Q So you did not get them there?
A No. Am I allowed to point out one thing in this letter, which is very important, which is we also requested a copy of the report made after the MMR scan performed on child A on 10 February, because that scan was used to take out the wardship proceedings, and we only saw that scan report 14 months ago for the first time. The original medical record held in the SC files all these years. And had we had the MMR scan report at the time we certainly would have exhibited it in the High Court wardship proceedings as evidence, because there are discrepancies in there. There is enough in that MMR scan report to require a second opinion from a neurologist and it has been denied us all these years.
Q So you make your request in 1987 for a copy of the MMR or MRI scan.
A Yes.
Q There may be in front of you something that we call the heads of charge on the yellow pages in front of you. Can you look at Appendix One, and under your name and the SC file numbers there is mention of an MRI report of 11 February. Is that the report you were specifically asking for on 26 August 1987?
A Yes. That MRI report was absolutely crucial for the defence in the wardship case, and also for our son’s ongoing health, of course, naturally.
Q Did there come a time when, in January 1998, when you decided to pursue possible litigation in respect of the matters that had occurred?
A Yes. Can I explain why I had to go down the litigation route?
Q I do not think we need at the moment.
A It is only to say it was the only way to get hold of the medical record. It had been made quite clear to us by the solicitors from the Brompton that it is the only way you can legally get hold of your son’s medical record. We tried every other route. It was not about money, it was not about finance, it was about finding the truth about our son’s medical record. So I just want to say that because there has always been a slur that we want to make money out of our child and that is not the case, it was simply about getting to the detail.
Q Initially in order to help you did you instruct a firm of solicitors in Manchester called Pannone Blackburn?
A Yes.
Q The Panel will not have the document that I am referring Mrs A to now. Is this a letter written by you and your husband to your solicitors in January 1988 and does it enclose the documents which you had had to date?
A Absolutely, yes.
Q Does it include, amongst other things, under four medical notes from the hospital in Cornwall, where you were?
A We had all the notes from Cornwall and they were helpful.
Q In paragraph 5 does it indicate you had the wardship papers?
A Yes.
Q By that time, in January 1988, did you have the Brompton records?
A No. It would have been number one on the list.
Q Did Pannone Blackburn pass you over to other solicitors?
A Yes, they were Foot and Bowden in Plymouth.
Q Did they obtain any records from the Brompton?
A No.
Q Did you move home and end up in a town on the south coast?
A Yes.
Q Did you then instruct a firm of solicitors called Donne Mileham and Haddock?
A That is right, Mr Allen.
Q Did they, on your instructions seek to get some records?
A They tried. In March 1991 Mr Allen wrote to the Brompton administrator,
Dr Braithwaite, and I think there was a memo sent to Southall and to Valerie Moeri about it.
Q Can I ask you to look at another file, which we know as C5, which is your SC file?
Could you look please at page 32 in that document? Is that a letter written on your behalf by your solicitors, Donne Mileham & Haddock, to the administrator of the Brompton Hospital?
A Yes.
Q It sets out the nature of your claim in the first few paragraphs, then at the bottom of that first page,
“We believe that you are likely to have or have had in your possession, custody or power the following documents relevant to issues arising or likely to arise out of the above mentioned claim: Baby A’s medical and nursing notes during his stay at your hospital”.
A Yes.
Q Indeed this letter goes on to demand disclosure of those documents.
A Yes.
Q Did you enclose with that letter at page 34 your authority seeking to have those documents?
A Yes.
Q Are you aware that, as a result of that document, Professor Southall was personally requested to provide the documents?
A Yes. Dr Branthwaite sent a memo to Dr Southall and to Valerie Moeri. It was copied to Valerie Moeri who is the principal social worker at the Brompton.
Q Can you recall the date of that, or the month that it took place?
A I think it was about April 1991, shortly afterwards at any rate.
Q Forgive me madam I have a copy of this document and I know it is in the SC file, but I cannot find the page.
A I know it is in the SC file but I cannot remember the page number.
Q I understand it is page 31. Is that, as we see, a letter from Dr Branthwaite asking Dr Southall whether he would agree with disclosure of the notes?
A That is right.
Q Was there a reply to that letter at page 24, I think it is, from Dr Southall? Do you see that on page 24?
A. “I am sorry it has taken so long”, that one?
Q Yes.
A Yes.
Q He says,
“I have now had a chance to look at the report and would like to draw your attention to a medical report on 17 February 1989 which I wrote on Baby A, which really summarises the problem. I have no reservations at all about releasing these notes to the solicitor acting for Mr and Mrs A”.
A Yes, but he was referring to a report he prepared for the wardship case which said that Child A had always been normal. He swore that in the High Court, -- perjury I think.
Q Were you also subsequently to become aware of a memo written about this time, before Professor Southall got personally involved, which we find at page 25?
A Yes. That was the memo I was referring to.
Q We see who it is copied into.
A Yes, Valerie Moeri, the social worker.
Q And on the right it is copied into --
A Yes, it has gone to the SC notes and it has gone to David Southall and Martin Samuels who also appears to have notes on us which we have not yet seen.
Q Does it say, from the Director of Legal Services,
“I attach a copy of a letter received from the family’s solicitor dated 19 March…Please ensure that the case notes are preserved in their entirety pending completion of this matter and please also notify the medical and other staff involved that the family is likely to institute legal proceedings for damages arising from professional negligence suffered by them”.
A Yes.
Q As a result of that, did you get any records from the Brompton?
A No, we did not. We got nothing at all at that stage, no.
Q Did there come a time when you instructed another firm of solicitors, Messrs Holden & Co, and did you send to them a list of the documents that you had had by 1993?
A Yes.
Q Can I ask you please to go back to C2, Tab (a) and look at a document with (b) on the top of it?
A Yes.
Q Is this a list of the documents that you had had by 1993 when you instructed these solicitors Holden & Co?
A That is right, yes.
Q Looking through it, does it set out documents from the hospital in Cornwall and the documents from the hospital in Hampshire, but does not set out there any reference to the notes from the Royal Brompton?
A No, there is no record of anything coming from the Brompton at that time, no.
Q Did there come a time in the course of searching for documents when the solicitors acting for the Royal Brompton swore an affidavit relating to medical reports?
A Yes, I think it was Melanie Jane Minter, solicitor from Norton Rose for the Brompton, who swore an affidavit.
Q Can you look please at the next page after the one we have been looking at, which has a little © on the top.
A I have that.
Q Was that affidavit sworn, as we can see, in January 1999 by Melanie Jane Minter and does she say in paragraph 1 that she is a solicitor employed by Norton Rose, and were those the solicitors for the Royal Brompton?
A Yes, they were.
Q She had conduct on behalf of the defendants because by that time, going back to the first page, we see your husband as the second plaintiff, Child A as the first plaintiff and you were the third plaintiff.
A Yes.
Q You were suing the Royal Brompton.
A Yes.
Q Turning to paragraph 3, do we see that that solicitor says,
“I refer now to the three categories of documents sought from the defendants as referred to in the Plaintiffs’ Originating Summons. As to categories (1) and (2) (Medical and Nursing Notes and a referral letter), the Defendants have no objection to the production of this information”.
A Yes.
Q As a result of that affidavit, where it was stated that there was no objection to the production of medical and nursing notes, did you get some notes from the Royal Brompton?
A A few, not many. That was in April.
Q In 1993?
A Yes, 1993.
Q Pausing there, did there come a time, which we will come to later, when you got some more?
A Eventually, yes.
Q So you got some in 1993, and by 1994 did you move to another firm of solicitors called Thomson, Snell & Passmore, and did those solicitors identify a number of different documents?
A Diana Kettle, she was very thorough and she identified an enormous number of missing documents, yes.
Q Turning over the page after this affidavit, can you see a document headed (d) on the top?
A Yes.
Q Is that a letter written by your solicitors Thomson Snell and Passmore, on 15 December 1994 to Norton Rose, solicitors for the Royal Brompton, seeking further medical records?
A Yes, those are the outstanding things she was asking for, including the MRI scan report.
Q We see that it reads in the second paragraph:
“We note that you kindly disclosed the medical notes and records held by the Royal Brompton … early in 1993. However, upon looking through those notes there are still various items outstanding, and we would like to see the following.”
And at number 2, as you rightly point out, they wanted a report describing the MRI scan and the scan itself.
A Absolutely.
Q At number 8 were they asking for copies of all tapes showing multi channel recordings?
A Yes.
Q And the Panel heard evidence that these multi channel recordings are made as a result of various monitors being attached to your child, to various parts of his body?
A Yes, it was about the cardio respiratory monitoring that was done on child A in the Brompton.
Q As a result of that letter did your solicitors get the letter at (e) on 22 December 1994, and if I take you to the second paragraph of that letter:
“With regard to the further documents to which reference is made … we confirm that we have no further records relating to this matter, but we have asked our client to carry out a thorough search for the apparently missing documents and we will revert to you … as soon as we can.”
A Yes.
Q Turning over the page to (f) in February 1995, did further records emerge as a result of the second search done on behalf of Norton Rose, and do we see a letter dated 1 February 1995:
“We refer to your letters of 15 December and 30 January. We apologise for the delay in responding and confirm that we have carried out a further review of the original medical records held by our client and we enclosed copies of the following.”
That is the report of the CT scan and the various matters there set out. Then under 6:
“We also enclose the original images from the magnetic resonance scans.”
A That is right. There is quite a list and then the original X-ray scans were sent to our solicitor and then we had to return them.
Q Did you get the images of the MRI scan; did you get the report of the MRI scan?
A No, we did not.
Q Did your solicitors chase matters, as we can see at (g) in March 1995?
A Yes.
Q And in particular dealt with the issue of the multi channel recordings?
A Yes. We did finally get those.
Q Then over the page your solicitors were carrying out more chasing for more documents and was there a letter in March 1995 from Norton Rose for the Brompton, saying:
“We look forward to the MRI scans being returned as soon as possible. In the meantime we have asked our client to investigate whether further records exist.”
A Yes.
Q Was there a letter in March from your solicitors, at (i):
“We are grateful to you for assurance in respect of the further records, but take this opportunity to advise that we do require an affidavit to be sworn by the secretary or other appropriate officer at the Royal Brompton in the event that no further records can be found. Please could this affidavit explain what steps have been taken to trace the records and why it is that they cannot be found.”
A Yes.
Q Was there a chaser to that on 2 May by your solicitors at (j) saying:
“We write with reference to your letter dated 20 March 1995 in which you indicated that an affidavit would be forthcoming if further records could not be found. If your clients have been able to find further records, then we would be grateful if you could disclose them to us. However, if nothing can be found we would now like to receive the affidavit.”
A Yes.
Q Was a letter written in reply to that in June 1995, at (k):
“We refer to your letter … and apologise for the delay in replying.
Our client has still been unable to locate any further records. However, our client has managed to contact Professor David Southall himself.”
Pausing there, for a moment, were you aware that by this time Professor Southall was no longer at the Brompton but was elsewhere?
A Yes, I knew he was at the North Staffordshire Hospital.
Q It goes on:
“It appears that Professor Southall is indeed holding six multi channel physiological recordings made of your client in the Department of Paediatrics at the University of Keele, North Staffordshire Hospital. We are informed that the recordings involve physiological signals that exist on multi channel tape. Professor Southall has informed our client that because of problems with storage it has not been possible to retain paper copies … However, he is willing to release the physiological tape recordings to you, which can then be transcribed.”
A Yes, we did get those actually.
Q So was that the first time or was there another time when you realised that records relating to your child had actually been taken by Professor Southall to the University of Keele?
A Of course, what on earth were they doing there? You would not have dreamt it, would you, really?
Q Was there a reply to that letter on 20 June at (l), a letter from your solicitors, thanking them for the letter:
“We agree that it would be most sensible if we were sent the original tape recordings so that we can determine whether or not we should obtain paper copies of those records.
As regards the affidavit, provided we receive the tape recordings from you and they appear to be complete, we will not be requiring an affidavit in respect of the multi channel recordings. However, our expert has indicated to us by telephone that he thinks there may be other records missing and we will wait to hear further from him in case it transpires that we should be making further enquiries of you.”
A Yes.
Q In relation to this was there a further letter from the solicitors of the Royal Brompton on 25 July 1995, saying:
“Further to our previous correspondence we enclose the six original recordings.
With regard to point number 1 in your letter of 5 July we confirm that our client has no further records. In fact the entries dated 16 and 29 January are on the same sheet of paper …”
It deals with that, and then does it go on to say:
“Enquiries of the Medical Records Department to determine whether, for some reason, a temporary medical record was created at the time have confirmed that there is none.”
A That is right.
Q They add:
“As a precaution our client is raising the point with Professor Southall but we do not anticipate that any further records will be forthcoming.”
Yes, they were wrong there, though.
Q Then in October 1995 we have a letter from Norton Rose from the Royal Brompton, at (n):
“We refer to your letter of 5 July and are now in a position to provide further information.”
It then deals with the status of Dr Samuels and Dr Warner, and the last paragraph says:
“Finally, please find enclosed further records relating to the treatment and care of [your child] at the Royal Brompton, which our client has just received from Professor Southall who had taken them with him to North Staffordshire Hospital.”
A Yes, we were quite astonished. Quite a paper trail.
Q Do you recall at that stage what further records you then got?
A I think they were nursing records, medical records from the Brompton.
Q Did they include the report of the MRI scan?
A No. The first time we saw the MRI report was when we got hold of the SC file fourteen months ago.
Q I will come to that in a moment.
A Sorry.
Q Can I now ask you, please, to go away from that file, which shows the paper chase of your various solicitors searching for Brompton Hospital, and take you back to your SC file, which is C5. Can we see what, as it were, was going on at the hospital end rather than at the solicitor end, if I can put it that way.
A Yes.
Q Can I ask you, please, to look at page 10, and is that a letter of 22 March from the Director of Administration, Mr Chapman, at the Brompton to Professor Southall at the North Staffordshire Hospital?
A It is, yes. He tried very hard to get the records.
MR TYSON: Pausing there, madam, you will be hearing evidence from Mr Chapman next week. (To the witness) Does that letter dated 22 March 1995 inform Professor Southall that he was informed in 1991 that you, as it were, and your husband “…were contemplating legal proceedings again Royal Brompton Hospital alleging ….. negligence in his treatment and care in 1987”?
A That is right.
Q “You gave consent to disclose the medical records to his solicitors in April 1991 and Norton Rose were instructed to represent the Hospital. You also wrote a medical report, a copy of which I enclose. On their advice, disclosure of the medical records was resisted since the solicitors acting for [Child A] did not specify the nature of allegations relating to his treatment which would justify pre-action discovery of the records.
For more than two years it was contended that insufficient information had been given by the solicitors acting for Mr and Mrs [A] to comply with legal rules relating to the disclosure of medical records. Furthermore, the proceedings became complicated with parallel action being pursued against the Royal Borough [there mentioned] and the Hospital [there mentioned]. Mr and Mrs [A] also decided to instruct another firm of solicitors in February 1993 about disclosure of the medical records relating to the treatment of their son. In April 1993, the medical records were disclosed.
In December 1994 I was informed that another firm of solicitors had been instructed by Mr and Mrs [A] and the copied medical records has been passed to them. They are now seeking copies of recordings made on 10 January, 16 January and 20 January 1987 of the breathing patterns, oxygen saturation and heart rate patterns taken of [Child A].
The medical records contain only reports of the recordings and I enclose copies. I have been informed that you may have some records in your possession at the University of Keele relating to the treatment and care of certain children in Royal Brompton Hospital. If you have the recordings requested by the solicitors acting for [Child A] in your possession, would you please send them to me.”
Going to page 5 in your SC file, does Professor Southall write back to Mr Chapman, saying:
“Thank you very much for your letter …..
I have looked through the records and identified 6 multichannel physiological recordings that we performed on [Child A]. These recordings involve physiological signals and because of storage, we destroy the paper version and retain only the taped version.
In order to produce paper versions it would take us many hours of quite hard work as well as using a lot of resources.”
Then he goes on to say what he has to say about the multichannel recordings, do you see that?
A Yes.
Q Then also further letters from Mr Chapman to Professor Southall. The first one we pick up is on page 4, which is a letter of 19 July 1995 to Professor Southall from Mr Chapman:
“…I have received further correspondence from the Solicitors who act for [Child A] ….. following his treatment and care at Royal Brompton Hospital ….. They have asked for an explanation of two matters and I will be grateful for your assistance”.
The first matter relates to a gap in the medical case notes, do you see that, between 16 and 29 January?
A Yes.
Q There is an assurance there that:
“The Medical Records Department has informed me that no temporary records were created for [the child] between those dates and I would therefore be grateful for confirmation that no other records between the two dates exist. Alternatively, if you should be in possession of any medical notes which were written between those dates, could you please send copies to me.”
Was there also a request as to the status of Dr Warner?
A Yes. Those medical notes we are talking about between 16 and 29 January, we got most of those about two years ago.
Q That would be 2003?
A Yes.
Q There was a further letter written at page 6 in August 1995 by Mr Chapman to Professor Southall, thanking him for sending the recordings, and indicated:
“There are now further matters on which I will be grateful for your help. You will recall that I wrote to you on 19th July about the observation by the solicitors that there is no entry in his medical notes between 16th and 29th January ….. I enclose a copy of the respective pages from which you will see that Dr Martin Samuels has signed both entries. The solicitors have asked if any notes are missing but I have not found any additional documents in Royal Brompton Hospital. I write therefore to ask if you have any separate notes in relation to the treatment of [Child A] at Royal Brompton Hospital in your possession. The nursing records indicate that certain events took place during the intervening period. For example, [the child] was transferred to Westminster Children’s Hospital on 20th January returning on 21st January. You saw the parents that day and they subsequently demanded his transfer to the Hospital for Sick Children at Great Ormond Street. On 23rd January Dr Samuels spoke to the parents. Dr Samuels also appeared to have spoken to the parents again on 27th January. None of these events are recorded in the medical notes.
The second matter concerns the reference by Dr Samuels on 29th January, when after discussion with you, no further need was felt to perform either cardio-respiratory monitoring or video (which I presume is video surveillance).”
A Yes. Can I just say that that was a research protocol used by Southall at the time I was – the protocol was not actually in place until July of that year, but nevertheless he went ahead and did the covert video surveillance on me in that period of time, but he said he had never carried out---
Q Can I just stop you there, please, Mrs A, because that is not a matter currently before the Panel.
A ---video surveillance, but the record shows he did carry out video surveillance.
Q Please, that is not, and I have to emphasise for the sake of the transcript, a matter that is before this Panel. Dealing with the questions that he there asked, was there a yet further letter from Mr Chapman to Professor Southall, which we see at---
A Can I just go back to the medical notes, the previous letter of 7 August 95, which is page 6, where we are talking about medical notes missing between 16 and 29 January. The reason those medical notes were absolutely crucial is it showed, just a matter of days before Southall swore on oath that [my son] was normal, that there were very clear records, for example a paediatric registrar clearly stating that [my son] was nowhere near normal; in fact, he had very clear pathological, neurological symptoms, and he was given facial oxygen on one occasion when he cyanosed. That is not a normal baby in my book.
Q We have now reached 1995, seeing the attempts by your solicitors to obtain the notes and the piecemeal giving of notes by the Brompton Hospital through their solicitors after getting further notes from---
A Sorry, I missed the page reference.
Q No, I am not giving you a page reference.
A Sorry.
Q I am asking probably an overlong question: we have now reached 1995.
A Yes.
Q In 1995 did you know of the existence of something called a special cases or SC file?
A No. When did I first hear about the SC file? It came to us fourteen months ago. It must have been, I suppose, two years ago.
Q That is 2004.
A It would be approximately then when I contacted the North Staffordshire Hospital, yes.
Q Let us take that in stages. You first heard of the existence of an SC file. Did you hear of that through any legal source or was it through another source?
A No, it was through a journalist.
Q Before you had that conversation with the journalist, and we cannot hear about the nature of that conversation --
A It was by e-mail, it was not a conversation.
Q Before hearing from that journalist, did you know there was anything called an SC file?
A I had never heard of SC files before. In fact I laughed and said, “Don’t be silly. I have not got one of those”.
Q As a result of the information that you learnt from this journalist in 2004, did you contact anybody or an organisation?
A Yes, I rang the administrator of the North Staffordshire Hospital. I sincerely did not believe that there would be anything there, simply because we had never been to the North Staffordshire Hospital. Our son had never been a patient there so you would never dream that there would be records there. But I thought I had better check this out anyway so I rang and had a sensible conversation with the administrator. She said she would check. She rang me back and said, “No, there isn’t anything”. I said, “Would you mind checking one more time and be absolutely certain”. She said, “Let me have your original address and Child A as a baby”. She went back and did indeed then find the SC file, much to my astonishment.
Q When there came a time when you were able to see the SC file, did it contain material that you had not seen before or had not been provided with before, despite all the endless requests for documentation by your solicitors over time?
A An enormous amount of documentation. I mean, two-thirds, I would say, of that file we had never seen before. It was quite extraordinary, and it certainly answered some questions for us.
Q In particular, did you see in that file for the first time, the scan report? Could you go to page 131 in the SC file, which is C5?
A This is the scan report, yes.
Q We have seen in the correspondence that you requested this in August 1987. Before you saw this SC file, some time after 2004, is that the first time that you saw that document?
A That is right. Can I explain the importance of the second file. I must just explain in history at that time, Baby A was one of the earliest babies to go through the MMR scanner and we had to sign a special consent for that. What interests me is the second paragraph where it says,
“The cerebellum is less myelinated but this should be within normal limits at this age”.
Now bear in mind that this document was never read by a neurologist, it was simply being reported on by a radiologist. Had we had this document at the time we would certainly have questioned that. No radiologist at that time could have said that the cerebellum was within normal limits because they did not have enough brain scans on file to be able to say that. So had we had this piece of paper we would certainly have gone for a second opinion, and I believe that is why it has been held secret all this time.
MR TYSON: Just wait there a moment.
MR COONAN: I have no questions, thank you.
Questioned by THE PANEL
DR SARKAR: Good evening. Just one clarification. In C5, Tab A, can I take you to page 57? It is the sworn statement made by yourself among others. Can I ask you to go to paragraph 5, please?
A Yes, certainly.
Q There it says,
“The scan referred to by Dr Southall was conducted, with our reluctant consent and on the basis that Baby A might still have an undetected brain problem, on 11/2/87 and results given to us on 13/2/87”.
A It was minutes before the wardship papers were served on us.
Q It says “results given to us”, does that mean the results were conveyed to you verbally?
A Yes, verbally. It happened in a sequence. Southall said, “The brain scan was perfectly normal. There is nothing wrong with your child. Here are the wardship papers”, exactly as I have said it now.
Q The first time you actually saw the paper that contained that report was when?
A It was 14 months ago.
MR McFARLANE: Good afternoon, Mrs A. You have described in pretty graphic detail what happened when you thought you were going to a diagnostic meeting but it was not so.
A Yes.
Q I can understand that you felt completely gobsmacked, for want of a better word. Did you ask Professor Southall why such an action had been taken?
A We asked lots of questions. You have to understand the sheer terror you feel when you are faced with a room full of solicitors and social workers who are telling you that your child might be taken away. So yes, we did argue.
It was bizarre in the extreme because David Southall was saying, “You must accept your child has always been normal”. I said, “Don’t be ridiculous, how can he be normal when he was given phenabarbitone in the first hospital for epilepsy?” For example, I do not think doctors give out phenabarbitone to normal babies so surely there has to be something wrong with him. Then he said, “That is nothing to do with it. The child is perfectly normal”. I said, “But the medical records shows that Child A was clearly unwell, plus numerous paediatricians, registrars and house officers had seen and witnessed Child A’s episodes”. All that had been written in the medical notes.
As we were speaking the social workers were coming in and saying, “I am afraid you need help, Mrs A, you cannot see your child as normal. There is clearly something very wrong here. You must accept what Dr Southall is saying. There is nothing wrong with your child”. Then we began to get very very frightened because there was no logical reasoning going on here at all. Everybody knew in the hospitals we had been in, all the other doctors knew that there was something seriously wrong with child A yet we were being faced with this barrage of people telling us, “You have to accept that your son is normal”.
So there was this kind of collective madness taking over, that is how I feel about it. Then the penny began to drop, “If they really think our son is normal, then really the tone is that there is something wrong with us”. We had already sussed that the psychiatric angle was creeping in, and then Susan Reece, a social worker, came in and said, “We are trying to get you a place at the Castle Hospital family unit”, which is a psychiatric unit where they assess families and babies together, family therapy. We thought, “Oh my God, they think we are mad”. Then you start to back off. I mean we were really angry initially, then you are in shock and fear. Then you calm down and think, “These people hold all the power here. We are going to have to be ever so careful”.
First I would not accept the wardship papers because I was not going to accept them. I was hanging on very very tightly to my chair so my hand would not have to take those papers. Finally I accepted the papers. I am sorry, I have lost track of the question.
THE CHAIRMAN: Possibly we should check with Mr McFarlane that you have answered his question.
A It was the most bizarre situation, that is all I can say, and it was no clearer by the end of the meeting than at the beginning, really.
THE CHAIRMAN: Has your question been answered, Mr McFarlane?
MR McFARLANE: Nearly, I have just one more question.
THE CHAIRMAN: If you could focus on the actual question.
A Sure.
MR McFARLANE: You have been most helpful in what you have said thus far. Looking purely at the explanations offered to you by Professor Southall and Professor Southall alone, was he able to explain to you why he was saying the things he was, or was he perhaps being brief or aloof?
A There was absolutely no explanation, absolutely none, none whatsoever. In fact we were told from that point on that we were literally never to discuss the matter again, never to use the word “episode” again. We were never to talk about it, never research about it. We had to accept that Child A was perfectly normal. From that time on, because we were so terrified of losing Child A, we had to play the game and pretend that he was normal, knowing that he was not. Of course we knew that he was not, I mean the medical record would show that he was not. But we had to pretend for the safety of our baby and to hold on to him that he was normal. So we were in a most bizarre situation.
MR McFARLANE: Thank you very much.
THE CHAIRMAN: It is possible either counsel might have questions arising from the answers you have just given.
MR COONAN: I have no further questions.
MR TYSON: No, thank you.
THE CHAIRMAN: In that case that completes your evidence.
A Thank you for listening. I am grateful.
THE CHAIRMAN: You are released from your oath and may stand down.
(The witness withdrew)
MR TYSON: Madam, you will be relieved to know that I have no further witnesses today and we will start on Monday morning with Mrs H. Towards the end of the day I anticipate being able to call Mrs D and I will possibly be asking on Tuesday to interpose the solicitor, Mrs Parry, relating to child M, depending on how far and what state we have reached with Mrs D. Thereafter, after Mrs H, Mrs D and Miss Parry, then my last witness will be the director of administration. So I anticipate being able to close my case either late Tuesday or early Wednesday, if that helps on the housekeeping.
THE CHAIRMAN: Thank you, that is helpful. We will adjourn now until 9.30 on Monday morning.
(The Panel adjourned until 9.30 a.m. on Monday 20 November 2006)