GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)
Wednesday 22 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 EIGHT)
MR RICHARD TYSON of counsel, instructed by Messrs Field Fisher Waterhouse, solicitors, appeared on behalf of the Complainants.
MR KIERAN COONAN QC and MR JOHN JOLLIFE of counsel, instructed by Messrs Hempsons, solicitors, appeared on behalf of Dr Southall, who was present.
(Transcript of the shorthand notes of T. A. Reed & Co.
Tel No: 01992 465900)
I N D E X
Page No
MR JOHN WILLIAM CHAPMAN, Re-called
Examined by MR TYSON, Continued 1
Cross-examined by MR COONAN 2
Re-examined by MR TYSON 23
Questioned by THE PANEL 28
Further re-examined by MR TYSON 31
APPLICATION TO ADMIT EVIDENCE
By MR TYSON 33
By MR COONAN 37
ADVICE FROM LEGAL ASSESSOR 40
DECISION 41
THE CHAIRMAN: Good morning. Mr Tyson, you thought you had probably finished your examination in chief, but you then had some documents to read.
MR TYSON: Yes, madam, I believed I had. As ever there was an opportunity to think about something overnight and I asked my learned friend whether he would permit me to ask one more question.
MR JOHN WILLIAM CHAPMAN, Re-called
Examined by MR TYSON, Continued
MR TYSON: Mr Chapman, what I am going to do is ask you to look, please, at the bundle, C2 in the first lot of tabs under (k), and within (k) at page 19. This was a letter that we looked at yesterday, a letter from you to Mrs H dated 22 April 2002. You indicate in that letter that you had already written to Mrs H in May 2000 indicating you did not know what SC 2026 was.
A Yes.
Q Later on in that letter you indicate that you have done two more years research and found that that was a file number used by Dr David Southall until July 1992. In the third paragraph you indicate that your inquiries in the Academic Department for Paediatrics – was that the Academic Department for Paediatrics at the Brompton?
A Yes. It was on the Royal Brompton Hospital site.
Q …for further records of Child H’s treatment and care revealed nothing.
A Yes.
Q You were asked, both in the case of A and in the case of H to produce records prior to 2000 because the parents of those children had requested them. Is that right?
A I believe so, yes.
Q And yesterday we went through each of the requests in both cases.
A Yes.
Q If you did not know that there was an SC file in either of those cases, would that help you as to whether you would be able to produce the SC file in response to those requests?
A Can I make sure I understand what you are saying? If I had or had not known?
Q If you had no knowledge that there was an SC file, which is what you indicated in the letter I have shown you, how would that assist you in locating all the medical records in response to a request by the parents via their solicitors?
A I had written to Dr Southall at the time to ask him if he had any records. I had conducted searches in the medical records department. I had conducted searches in the hospital elsewhere. I had also asked the National Heart and Lung Institute itself if there were any records and I had asked in the Academic Department of Paediatrics, which by 2002 was the responsibility of another head.
Q None of those inquiries revealed the existence of a separate file called the SC file.
A That is true. They all said to me that they had no records of an SC file or SC records themselves.
Q Thus, were you able to produce the SC file in relation to the solicitors’ requests?
A No, I never produced an SC file to the solicitors and I can verify from what you showed me yesterday when you directed my attention to an SC file, I never found or had produced for me any such file.
Q Indeed you had never seen one until yesterday.
A I had never seen one, that is correct.
MR TYSON: Thank you.
Cross-examined by MR COONAN
MR COONAN: Mr Chapman, on the last point – we will come back to tracing matters through in a minute – the plain fact is that at the time you were doing the search for the SC files they were in fact in Stoke, as we now know.
A I was searching for more than an SC file. I was also searching for additional records because the solicitors who acted for the parents we have been talking about had actually said to us that they believed there were missing records.
Q They may say they believed there were missing records.
A I verified there were none so far as they related to national Health Service Royal Brompton records.
Q Absolutely. I am not suggesting that there were records that you had overlooked. I am suggesting that the records in fact were in Stoke.
A I had written to Stoke to ask if there were any records.
Q Yes, but how Stoke managed it is a matter for Stoke. I am dealing with the fact that the practical reason why you could not find the material is because, as a matter of fact as we now know, it was in Stoke.
A Yes, but I had a duty to look.
Q Can we just go back, please, to deal with each of these two children and pull together some of the milestones because, speaking entirely for myself, sometimes it is a little difficult to see how everything interlocks. Let us take Child A first, but perhaps I may say in passing thank you for letting us have a look at the documents and it may be that I shall need to refer you to one or two of them. Right?
A Yes.
Q In respect of Child A there were, in reality, two periods, first of all 1987 to 1994 and the second period 1994 and thereafter. That is a convenient way of dividing it, is it not?
A In that way, yes. I would actually subdivide the second period into three.
Q I am trying to keep it as simple as possible. The first period 1987 to 1994, there was an initial request for the records in 1987 by Child A’s parents.
A Yes, I think I was directed to that yesterday, to a letter that pre-dates my employment.
Q Yes, it is C5, page 97. That was the first request, and it might be helpful to turn that up again because there is a particular reference I need you to look at. I know this is before your time, but Mr Tyson asked you to look at it and I will do the same. It is page 97. This is the first request addressed to the Brompton by the parents for the notes and I take you to the latter part of the second paragraph, last four lines,
“We also request a copy of the report made after the NMR scan performed on Child A on 10 February 1987 at the special unit adjacent to the Brompton Hospital under instructions from the Brompton team”.
So there was a specific request as far back as 1987 for the NMR report, as it was then called.
A Yes.
Q I do not know if you can help with this, did the hospital at about that time have what is called a PAS?
A A patient administration system, yes.
Q It did?
A It did have a patient administration system. As to whether it had modules, for example imaging modules, I cannot be certain of, but it had a patient administration system.
Q So there was an outstanding request. We know from Mrs A’s evidence that a significant number of solicitors were instructed by her sequentially in order to attempt to obtain the records.
A Yes.
Q And they did not succeed. We know that. You accepted that.
A I would accept that, although my knowledge of those three previous attempts is relatively cursory, although there is documentation in the file.
MR COONAN: There is one document I would like you to look at in the file. You will find it, I think, in your first volume. It is a letter to the Brompton dated 25 September 1987. Let us see if you can locate it first. It is from Norton Rose.
THE CHAIRMAN: Is this in a bundle before the Panel?
MR COONAN: Not yet. I want Mr Chapman to identify the document and then we can circulate it. Do you have that document?
A Is it dated 25 September 1987?
Q Yes. It is from Norton Rose to Miss Karen Turner. It has been photocopied so it can be distributed. (Document handed) It will be D5. As you said yesterday, Mr Chapman, Norton Rose were the Brompton Hospital’s solicitors as far back as September 1987.
A Yes, and before that.
Q And before that.
A Long before that.
Q It is a letter referring to the A family’s request for medical notes. The writer refers in the second part to the legal position in relation to wardship proceedings, but can I ask you please to look at the last four lines of that second paragraph,
“As I said in my earlier letter, Mr and Mrs A would not be entitled to apply for pre-action discovery in the usual way because this is not a personal injury or medical negligence case. In any event, the records should only be handed over to medical, legal or other professional advisers”.
Then at the bottom of the page,
“My advice, therefore, is to withhold the records and to wait until a decision concerning disclosure if any, is made by the Judge.
I enclose herewith a draft letter to Mr and Mrs A”.
Over the page we find the draft letter, drafted from the solicitors. In the middle paragraph it says,
“Medical records within the NHS remain the property of the Secretary of State and not of the individual doctor or patient. Access to such records is limited and they are usually only disclosed to an applicant’s legal advisers and any other medical or professional advisers in certain circumstances.
We do not believe that our clients [the Brompton] are under a duty to disclose the records in this case and have advised them accordingly”.
That is, as a matter of historical record, the position being taken by the Brompton’s legal advisers. Is that right?
A Yes, that was their advice.
Q Mr Chapman, can you just help me about another aspect of this. Leaving aside wardship, which is a wholly separate jurisdiction, the jurisdiction in relation to pre-action disclosure in a personal injury or medical negligence claim is a separate jurisdiction as regards disclosure of documents, is it not?
A Yes. It has changed considerably since that time.
Q You anticipated my next question. In the 1980s and 1990s – we can take this quite broadly – the ability of claimants, as they are now called (plaintiffs at the time) to obtain disclosure in medical negligence actions or personal injury actions was, certainly from the standpoint of plaintiffs and their advisers, extremely restricted, was it not?
A I would not entirely agree, if I may say so, because the Access to Health Records Act came into operation. The Act was 1990 and health authorities, health organisations were encouraged to help people to have access to their clinical records. There were caveats; there were certain restrictions.
Q It is the caveats and restrictions, if I may say so. You, wearing your, as it were, defendant’s hat may take one view, another person wearing a claimant’s hat may take a wholly different view, but the fact is during that period, as this letter indicates, the law and procedure at various times indeed restricted disclosure of medical records either to the legal advisers or, as the letter indicates, to the nominated medical expert?
A Yes, but that changed in a case, I believe against Wandsworth Health Authority.
Q Indeed it did, but there were, as you have said, changes during the period, changes in philosophy and thinking, not just by the defendant’s advisers ---?
A No.
Q -- but by the courts?
A Yes, and subsequently through the reforms instituted by Lord Woolf.
Q Absolutely, the Woolf reforms, of course, coming into operation in 2000?
A Yes, with the protocols for pre-action discovery.
Q None of that existed prior to then?
A That is true, not at this time.
Q If we are speaking generally, of course, one has to add into the equation the experience and expertise of solicitors involved, or the lack of it?
A Yes.
Q That is fair, is it not?
A Yes, I would say so, and indeed for claimants and others who wished to access health records.
Q Certainly, in those early days there was not the specialisms residing in claimants’ solicitors as there is now, as a general observation?
A I agree completely.
Q Which was a matter of great concern to a large number of people?
A Yes.
Q The result of the advice adopted by the Brompton at that time really led to a position whereby these notes – what I am going to call the main library notes – were not actually handed over until 1993?
A I believe that is right, bearing in mind that I did not have any responsibility before this until 1994.
Q Mr Chapman, I am not suggesting you did, so do not feel defensive about it.
A Right. Thank you.
Q It was before your time, but it is a matter that falls within the gaze of the Panel and therefore I must deal with it as best I can. The policy adopted by the Brompton was not to disclose until an affidavit was sworn by Norton Rose in 1993, and we see that at 3A© in tab 2.
THE CHAIRMAN: Could you possibly just repeat that reference?
MR COONAN: Yes, it is bundle C2, tab 3(b). I am sorry. In fact, can you just go back,
Mr Chapman, to tab 3(a) and it is the third document in. You see an affidavit there?
A Yes.
Q We see the date of the affidavit on the top right-hand corner?
A 28 January 1993.
Q That affidavit, if you look at the second page, represents, does it not, a sea change in the attitude of the Brompton to the disclosure of the main library file?
A Can you direct me again?
Q Yes, in the middle paragraph, paragraph 3 on the second page of the affidavit. Just read it quickly.
A Yes, I see where you are referring to now.
Q It represents a sea change in the Brompton’s attitude to the disclosure of the main hospital file?
A Yes.
Q If we now move into tab (b), and if you go please to the first document, there should be a letter dated 15 December 1994 from yet another firm of solicitors, Thomson Snell & Passmore (I am going to refer to them as TSP). We see there an acknowledgement in the second paragraph that the notes and records then held by the Brompton were disclosed early in 1993?
A Yes.
Q So it follows that, in accordance with the admission and concession in the affidavit by the Brompton, that disclosure then took place?
A Yes.
Q Just keeping the letter of 15 December 1994 open, it follows, looking at that document, that the main library file itself was incomplete in terms of disclosure, was it not?
A Yes, in the whole or the entire sense, yes. Some of these records would have been held outside, scans for example.
Q Absolutely. Leave scans to one side for the minute because we have a particular interest in scans. We see the other elements which these solicitors are saying, in effect, “Look, you gave us disclosure of the main library file in early 1993. It is now 15 December 1994 and we are wiring to you because we have noticed that there are omission and gaps even in the main library file”?
A Yes.
Q But that in itself is not a problem, is it? These things do happen.
A Yes, indeed.
Q Because there are outlying documents and you have very often got to go to the outlying departments to get hold of the records?
A As I alluded to yesterday in answer to a question.
Q Indeed you did. One of the specific matters that the solicitors wanted was the report relating to the MRI scan, and they duplicate the request, but we know what they are talking about?
A Yes.
Q It is not surprising, is it, that they were requesting that MRI scan, because from the main library file disclosure there is a clear reference to the existence of such a report. Could you look at tab 3(e) at page 13?
A Yes.
Q Mr Chapman, this is a photocopy in our bundle of what is actually in the main library file?
A Yes, there is a written note.
Q There is a written note and any solicitor looking at this document would see immediately that there is a reference to an MRI having been carried out?
A Indeed.
Q And, indeed, in particular as well, a reference to the fact that an EEG was done?
A Yes.
Q That also is referred to, I think, in that request. However, staying with the MRI for a minute, a clear reference to the report and at the bottom of the letter, if you go back to
15 December 1994, a specific request for the tapes showing multi-channel recording?
A Yes.
Q Again, if we can just deal with the multi-channel recordings, there are clear references in the notes, in the main library notes, to the fact that such were carried out?
A Yes.
Q So it is not surprising that any solicitor, if he is doing his job properly, is going to ask for the tapes?
A I agree.
Q We have two matters of particular importance. I am going to deal with the multi-channel recordings topic first, with your help, and then we will deal with the MRI. Matters that follow are taking place under your watch, if I can put it that way?
A All right.
Q What you do, perfectly naturally, is to write to Dr Southall on 22 March 1995 and you will find that at tab 3(b) at page 8. It is your JC file?
A Yes.
Q Page 8 at the bottom of the same tab, 3(b).
A It is page 6. Page 8 is my letter to Norton Rose.
Q You write to Professor Southall and you say two things on the first page. First of all, you rehearse some of the history in the first paragraph. You explain to him, in effect, the reasons why disclosure had thus, up to 1993, not been granted?
A Yes.
Q So you were filling him in as to the background. I take you to the last three lines of the first paragraph:
“On their advice [that is Norton Rose], disclosure of the 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.”
A Yes.
Q That is a clear reference at that time to the operation of the Rules of the Supreme Court?
A Yes.
Q You were probably familiar with them at that time, were you? Order 24, Rule 7A?
A No. To be frank, I probably was not. I had only been in post nine months, so I was not familiar with the Rules of the Supreme Court. I was, however, familiar with Hall v Wandsworth.
Q Then in the second paragraph again you continue the history:
“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 the legal rules relating to the disclosure of medical records.”
Then right to the point, over the page, you say to Dr Southall:
“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”,
and note the plural there,
“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.”
That was 22 March. Four weeks later, if you turn on to page 9, Dr Southall responds directly to the point, does he not?
A Yes.
Q In that letter he says:
“I have looked through the records and identified 6 multichannel physiological recordings that we performed ….. because of storage, we destroy the paper version and retain only the taped version.”
That was in April. If you turn on, please, to page 13, he having explained what the position is, you then ask him for the actual tapes.
A Yes.
Q That request is made by you about two and a half months after you get this first letter.
A Yes.
Q I am not criticising you, I am just remarking on the fact that there is a two and a half month gap, and you ask him for the actual tapes on 5 July 1995, because in the body of that letter we know that it was 5 July, or thereabouts, that you wrote to Dr Southall because you say to Norton Rose, “I enclose a copy of a letter that I have written to him”. I do not think we have that particular letter in the bundle, but it does not matter, the fact is that it is recorded that you requested the actual tapes.
A Yes.
Q Then if you move on to page 17, on the documents we have got it would appear it is round about a week later, and I stress that, only a week later, Dr Southall actually discloses the actual tapes to Norton Rose on 13 July.
A Yes.
Q Now, once the tapes are in the hands of Norton Rose, Norton Rose then have an obligation, do they not, pursuant to that agreement and concession in the affidavit, to disclose those tapes---
A Yes, to Thomson Snell & Passmore.
Q Absolutely, to Thomson Snell & Passmore, acting on behalf of the A family, and that is therefore something that Norton Rose should have done at that time.
A Yes.
Q As far as you know they did?
A As far as I know, yes. I have heard nothing more from Norton Rose about it.
Q Therefore, as far as you know, Norton Rose gave them to Thomson Snell & Passmore, and if you look at the documentation a minute, so that in effect Thomson Snell & Passmore, acting on behalf of Mr and Mrs A, we can say that Mr and Mrs A were, to all intents and purposes, in possession of the tapes?
A Yes, through their solicitors, yes.
Q Through their solicitors. If you turn on to page 18, six days after Dr Southall has given Norton Rose the tapes, six days later, you ask him a number of specific questions arising out of the medical records.
A Yes.
Q I am not concerned about those because they do not appear of themselves to be of any direct relevance, but you raise the question within that letter to Dr Southall as to whether or not there are any other documents, I think is a fair way of putting it? Is that fair?
A Yes, I had asked---
Q So it is a global invitation or request of Dr Southall whether there are any other documents.
A I am referring in particular to possible medical records, medical notes, clinical notes, anything else.
Q Anything at all.
A Yes.
Q Right. That is on 19 July. So we can take it therefore that in this chronology that is the first time that he has been requested for that material.
A Yes. The inquiry was directly related to the reference from Norton Rose through Thomson Snell & Passmore that there were no entries in the medical records for thirteen days.
Q Absolutely, but whether it was expressed or implied, it was a clear invitation for Dr Southall to respond as to whether or not there were other records.
A Was there anything else.
Q Absolutely. Within about four weeks, this is July, we have, if you turn on to page 22, Dr Southall responding to that letter of 19 July, and he tells us, if you look at the document, in terms:
“We always kept our own medical records for all the special cases that we dealt with at the Brompton”.
All right – point one?
A Yes.
Q Point two:
“I have arranged for these” – that is in relation to Child A – “to be photocopied and enclosed with this letter.”
Then he goes on to deal in the rest of that letter with the specific points raised in your letter of 19 July. Again, I do not think we need to bother about those specific points. There are two matters I would like you to look at. First of all, he is declaring there, “We always kept our own medical records for all the special cases that we dealt with”, and he is in fact enclosing photocopies of Child A’s special cases file with the letter.
A Yes.
Q Those documents came to you.
A They did.
Q If we turn to page 23, right through to 49, right?
A Yes.
Q There are two things: pages 24-49 represent the documents that Dr Southall sent by way of a photocopy.
A Yes, seventeen documents as I categorised them.
Q On page 23 is a list that you made.
A Yes, that is right.
Q One of the matters that appeared on the list was item 8, which is the MRI imaging report.
A Yes.
Q Of 11 February 1987, which, if you keep your finger on that and turn on to page 37, you see a copy of the report, is that right?
A Yes, signed by two consultants.
Q Yes. So a photocopy of the MRI report has arrived in your hands following a request first made by you on 19 July for records to Dr Southall.
A Yes.
Q It is in your hands in August of the same year.
A Yes, that is right.
Q Of course, what you do with it is, if I may say, correct, because you send those documents, do you not, to Norton Rose?
A I did, yes.
Q So there is no doubt about it, did you send to Norton Rose pages 24-49?
A I would have done, yes, and I would be certain they arrived, because if any were missing I am absolutely confident that Norton Rose would have contacted me.
Q They are an efficient firm?
A Yes.
Q Now, if you go, please, to tab 3(a), the last document in tab 3(a).
A The last letter, 6 October?
Q That is right, 1995. Now I think we in effect complete the audit trail. You send those documents to Norton Rose, and Norton Rose on 6 October write to Thomson Snell & Passmore dealing with a number of specific matters raised which I am not concerned about, and I go, please, to the final paragraph:
“Finally, please find enclosed further records relating to the treatment and care of [A] at the ….. Brompton ….. which our client has just received from Professor Southall who had taken them with him to North Staffordshire Hospital.”
A Yes.
Q In fact, I am not quibbling too much, but it may have been they were in your hands in August, but be that as it may the important point is that Norton Rose send those documents to Thomson Snell & Passmore.
A Yes, clear from the letter they were sent.
Q So Mrs A, through her solicitors, has had this material, including the MRI film report since October 1995, yes?
A Yes, from the letter, yes.
Q Now, there is one other dimension to the MRI position I would like you to deal with. I think just shortly before this hearing began you were contacted by Field Fisher Waterhouse in respect of Child A in connection specifically with the MRI report and the MRI films themselves, is that right?
A Can you show me the reference, please?
Q Yes. I am going to give you a letter, with a clip of correspondence attached to it, which is dated 9 November 2006, which was disclosed to us by Field Fisher Waterhouse. So perhaps, please, you can just identify it and then it can be distributed. Just have a look at the clip behind.
A (Same handed) Yes.
MR COONAN: Perhaps that could be distributed, please. (Same handed)
THE CHAIRMAN: This will be D6.
MR COONAN: Mr Chapman, as we see in the first paragraph of this letter you were asked by Field Fisher Waterhouse to search for the original MR image and the original report.
A Yes.
Q And of course the report is the same report that I have just been dealing with, with your assistance.
A Yes.
Q Then you say you have searched for the original MR image and the report – that is the original report presumably.
A Yes.
Q In the MRI department, the X-ray department and the records department. You say that you have been unable to find them and believe, from what others have told you, that the MR image and the report – that is the original report.
A Yes.
Q Were destroyed, “most probably when the original medical records of Child A … were transferred to optical disc format.” Can you help me as to when that would have been? Was it before your time?
A No, it was not before my time.
Q Take your time.
A All right. (After a pause): My memory is very, very vague; it was some time in the 1990s, possibly around 1999, maybe 2000, when there were too many records being held in the medical records department and the decision was taken to transfer to optical disc format.
Q Up until 2000 or whenever it may have been – and I understand the problems about the lapse of time – the original report was, your understanding is, in the hospital, ready there to be handed over if anybody had asked for it.
A Yes.
Q You go on to deal with connected but slightly different aspects. You say that you:
“do not recall and have no evidence of any conversation with Mrs A this year or in any previous year about the MR image.”
Is that still your recollection?
A Yes, it is.
Q Your files contain only two letters from Mrs A to you, July and September 2003 and a note of a telephone conversation in October 2003. “She did not raise the issue of the MR image in the letter or in the conversation.” You go on:
“I am further certain that having signed a witness statement on 7 November 2005 about Child A I would have written a file note of any subsequent conversation with Mrs A.”
Does that still remain your view?
A Yes, that is still my view, yes.
Q Again, just to complete one other aspect of the audit trail, looking in your litigation files you can say that Norton Rose returned the original medical records of Child A to you in February 1995 and the original MR scan in March, presumably of the same year.
A Yes.
Q As you say, having sent a copy to TSP, the solicitors who represented Mrs A at that time.
“I would have returned the original medical records and the MR scan to the Medical Records Department. Norton Rose informed the Trust on 25 March 1996 that legal proceedings had ended.”
They had been abandoned, is that right?
A Yes, it is.
Q Abandoned by Mr and Mrs A.
A Yes. There is a letter in the litigation file to support that.
Q You say,
“I have no evidence from that date that the original medical records or the original MR scan was sent to any other solicitors and although I contacted the NHS LA and another firm of solicitors who represented them in July 2003 after Mrs A had written to me the focus of the enquiry then was on the completeness of the medical records of Child A and one of Professor Southall’s clinical trials and not on the existence of the MR scan.”
A That is right.
Q Just to complete what you say in the letter, I take you to the last paragraph, please, on the first page. You say, as you have just told us,
“… the medical records of Child A had been transferred to an optical disc. The medical records department informs me that it would not have been possible to copy the scan image to a … disc and so long as the report of the scan was either in the original medical records or on the X-ray module of the hospital patient administration system …”
That is the PAS computer system.
A That is the new, the current PAS, not the one that was in operation in 1987.
Q I will come back to that in a minute if I may, but thank you for that. You go on to say:
“… the original scan image would have been destroyed with the original medical records.”
Mr Chapman, you dealt with that a few minutes ago in your evidence, is that right?
A Yes.
Q You go on to say:
“The report of the scan on Child A is on the X-Ray Module of the hospital PAS. I enclose a copy of the MR attendance record and the report.
I believe the only potential source for the actual image of the MR scan today would be TSP, assuming they have retained their copy of the medical records which Norton Rose disclosed to them.”
To complete the correspondence, over the page in the clip, taking you to the second page and the third page, we see in that particular format the report of the MRI.
A Yes.
Q This print-off took place when, Mr Chapman?
A Are you referring to the last two pages?
Q Yes, I am.
A Either on 9 November or the day before.
Q 2006.
A I printed the first page marked “Attendance Record” because I have that level of access to the imaging module of the PAS. My personal assistant obtained the second copy from the magnetic resonance department; I do not have that level of access to the report itself.
Q The point is that in the computer system of the Brompton there is to this day the MRI report.
A Yes, there is.
Q And there has been all this time has there not?
A I cannot in truth say whether there was under what we call the prime computer system before the current system was installed around 1990. I do not know whether there was an imaging module of the old computer system, but at some point the report would have been typed into the imaging module of the current patient administration system.
Q It must have been, must it not, because if the document, as we know, a copy and another document were in the documents kept in Stoke by Professor Southall, it is difficult to see how the Brompton got this material on its computer, do you follow?
A Yes, I follow that.
Q So the inference must be that it has been there all the time in one form or another?
A Can I slightly qualify that?
Q Yes, of course.
A From my recollection of disclosing medical records, magnetic resonance images are sometimes put into the original medical record and are not retained in the MR department, but at some point, I would agree with you, if it came to destroying the original records, destroying the image, a copy would have had to have been made and could then have been sent to the MR department to enable it to be inputted into the X-ray module.
Q I follow. That is in relation to the scan.
A No, it is in relation to the report.
Q Either way, the hospital in one form or another, the Brompton, has had the information which we are now seeing throughout this period.
A Yes, I think I would agree.
Q Thank you very much, that is all I need to establish. Having carried out that exercise the trail – if I can, I hope, not exaggerate – really went dead from 1995 to 2003.
A Yes, we heard nothing.
Q You heard nothing, so there were no requests, the action had been abandoned in 1996 and then suddenly in 2003 Mrs A, acting in person, not through solicitors, is that right?
A That is right. Can I just go back to what you said? You said “abandoned” – in fact that file which you have seen was archived and I had to retrieve it in 2003.
Q There we go, it was filed away, you thought it was all over and you could tie the pink ribbon round it.
A So to speak.
Q And put it to one side, yes?
A Yes.
Q She then made a renewed request to you for, she believed, outstanding notes, is that right?
A Yes.
Q Again, we can take this reasonably shortly, but you sent her directly a copy of what had been sent to TSP in 1995.
A That is right, clinical notes generated from the optical disc..
Q Let us just be clear about that. Did you send her in 2003 a copy of the material that Norton Rose had sent TSP in October 1995?
A No, I would have sent her what existed on hospital computer system on the optical disc.
Q That would have included, would it not, the MRI report?
A Yes. It would have included the MRI report if it had been transferred to the optical disk.
Q It follows, does it not, that in so far as she is saying to this Panel that she never had the MRI and never had documents from Dr Southall on stoke, the problem lies or would appear to lie with TSP.
A Yes, I did direct her to TSP too in one of my letters.
Q Indeed you did, because that is where the audit trail stops.
A Yes, that is where we believe it ended, yes.
Q Can I just complete this part, please, by seeking your confirmation that you do not have on your file any letter or request from TSP saying, in effect, “Where is the MRI?”
A No. I never had a letter directly from TSP at all. The communication was between the solicitors, not with me.
Q If TSP had asked Norton Rose, “Where is the MRI?” Norton Rose would have referred it to you.
A They would have referred it to me.
Q But you never had any such request.
A No, I have never had a request.
Q That completes Child A. Can I turn to Child H, please? You will have to turn in C2 back to Tab (l). You should see the name “Huttons” in the top right.
A Yes, I have that, a letter dated 16 June 1994.
Q For our purposes this represents the first request for the notes by solicitors acting for Mr and Mrs H, Huttons, and I think these events again happened under your watch.
A Yes. I had been in post barely three months then.
Q Following that request in June, you wrote to Dr Southall on 1 July. If you turn to page 11 you summarise in the first paragraph the nature of the allegation being made to assist Dr Southall with the background.
A Yes.
Q In the last paragraph you in effect come to the point and you say at the bottom of that paragraph,
“I write to ask therefore that if you possess a file within the Academic Department of Paediatrics in the North Staffordshire Hospital Centre with such correspondence would you please send it to me as soon as possible”.
I just note there that you refer to “such correspondence”.
A Yes.
Q That is correspondence involving the County Council.
A Yes.
Q There was at that stage a query, was there not, about whether or not Dr Southall was going to in effect be a defendant in the proposed proceedings.
A That is right, yes.
Q So in so far as there was a question mark over that, this of course being the mid-1990s, but even so there was a question mark over whether or not he would be a defendant, despite the concept of Crown indemnity.
A This pre-dates what we call NHS indemnity.
Q Absolutely. It pre-dates the operation of the NHS indemnity.
A Yes, and the NHS litigation authority.
Q So in those circumstances it would not be surprising if Dr Southall then had to consider his own position and seek advice.
A No, that would be right.
Q To seek advice from his own defence organisation.
A Yes.
Q Such advice would cover a question of the disclosure of any records that he might hold. That would be perfectly understandable, would it not?
A Yes, it would be. It is fairly much the same position now when doctors receive claims from patients who they care for privately.
Q I think in your file there is a letter from yourself to Dr Southall dated 4 January 1995. Would you like to look at your actual file? It is in Volume 1. I am going to ask, first of all, that you identify it and then the Panel will receive a copy suitably redacted for anonymity reasons.
A This is the letter dated 4 January 1995, JC/emw, is it?
MR COONAN: That is correct. Perhaps that can be distributed. (Document handed)
THE CHAIRMAN: This will be D7.
THE WITNESS: My letter actually refers to three claims from three different families.
MR COONAN: Indeed it does, and we have anonymised the names of anybody else in that document. So we are just dealing with H. It is 4 January 1995. You refer to a letter of 28 November. Just pausing there, during this period, you having written first of all to Dr Southall in July 1994, there was quite clearly communication between you and Dr Southall.
A Yes, that is right.
Q You say,
“In my letter of 28 November 1994 I wrote to say that I would seek advice from our solicitors, Norton Rose, on your view that further action on your part in relation to legal proceedings by the H family should be continued either through the hospital or the solicitors.
I have been informed that Norton Rose have spoken to Mrs Jones, your personal assistant, about the matter. They [Norton Rose] have now advised me that we should wait to see how proceedings develop, and in particular whether fully pleaded cases arise, before making a decision on appropriate representation for you”.
Then at the bottom it says,
“Full particulars of the claim have not so far been issued, nevertheless they continue to advise that you should obtain advice from your medical defence organisation because you are cited as a separate defendant”.
So at that stage Dr Southall had been cited as a defendant, and therefore his actions, as you would expect, are going to be the subject of advice and guidance by those who advise him. Is that right?
A Yes.
Q So far as the trust is concerned, the trust policy, following advice from your solicitors Norton Rose, was really a “wait and see” policy.
A That is correct.
Q I just want to step back slightly. In September 1994, slightly before this letter, the trust, the Brompton, had voluntarily disclosed such notes as were then in existence at the Brompton.
A That is right. The trust was advised by Norton Rose to agree to voluntary disclosure.
Q That is correct. Dr Southall was not the only other defendant or potential defendant at that time, was he?
A No, I believe there were five in total.
Q It is correct, is it not, that although the Brompton decided to embark on voluntary disclosure in September 1994, the other defendants did not?
A That is correct.
Q So the other defendants, following advice, decided not to and to just to sit back and disclose nothing.
A Yes, so far as I know. I can only speak actually for one other defendant with whom I had a conversation who told me that that was their position.
Q Was one of the defendants the Great Ormond Street Hospital?
A May I refer to the bundle?
Q By all means.
A I see nothing in the originating application to cite Great Ormond Street as a defendant.
Q Were Field Fisher Waterhouse acting for a particular party at that stage?
A Can I go back to the file because I recall a letter from Field Fisher Waterhouse.
Q Would you like to look at a letter dated 14 July 1994 from Norton Rose to you?
A Yes. On the second page there is a reference to Great Ormond Street in the second paragraph.
Q I am going to ask that this letter be produced in a moment, but just to introduce it, can you help the Panel, please, were Field Fisher Waterhouse then acting for Great Ormond Street?
A Can I refer to the file again because I do recall a letter from Field Fisher Waterhouse? Yes, dated 28 June, 1994, “We act for the Great Ormond Street Hospital”.
MR COONAN: There we are. I was correct in my understanding. With that background, Field Fisher Waterhouse acting for Great Ormond Street, Great Ormond Street now being a cited defendant, could I invite a copy of the letter of 14 July 1994 to be produced and again suitably redacted? (Document handed)
THE CHAIRMAN: This will be D8. Mr Coonan, I am conscious of the fact that we were told that Mr Chapman had to leave at some point.
MR COONAN: I have almost finished – I say “almost”; very shortly. Mr Chapman, this letter is dated 14 July 1994 and you say in the first paragraph that you had had contact with Huttons acting for the H family.
MR TYSON: It is not a letter from him. It is a letter to him.
MR COONAN: Yes, from Norton Rose. The solicitors summarise the position and the allegations and in effect analyse again the same position in the second paragraph on the first page. Then on the second page, in the second paragraph – the first one for our purposes has been blanked out –
“I have spoken to Field Fisher Waterhouse regarding disclosure of their documents in the H case. They have decided that they will give voluntary disclosure but only in relation to documents which stemmed from Great Ormond Street. They have copies of documents from other parties but have decided not to disclose those. I think this is a sensible course of action and I would suggest that we do the same”.
Then it goes on to deal particularly with the legal aspect of this. In the last paragraph Helen Morgan says,
“At our meeting, you said [that is you] that you would be writing to Dr Southall to check whether he had copies of [blank] medical records if, in fact, the hospital does not have them. Have you had any luck in tracing them?”
So the position appears to be in 1994 that Field Fisher Waterhouse, acting for Great Ormond Street, for their own reasons were deciding to withhold from voluntary disclosure copies of documents from other parties in the medical records.
A Yes, that is what they were saying, or what is being reported by Norton Rose.
Q So anything that does not stem from Great Ormond Street, do you read that as meaning documents coming in, copies of documents between third parties, they are going to withhold?
A Yes, that would be my understanding.
Q The trust solicitors thought that that was a sensible course of action.
A That is what they said.
Q The “wait and see” policy continued, did it not, with this result, that the action against these five defendants was discontinued by the H family on 15 September 1995?
A There is a notice of discontinuance, I believe.
Q And that is the date.
A Yes. I recall the date quite well because I had a conversation with the solicitor in Norton Rose informing me that there was going to be an application by another party to discontinue proceedings and the other defendants were to agree to it.
Q So far as you were concerned at the trust, that was the end of that.
A Yes, that is right.
Q During this period which begins in June 1994 and ends in September 1995, we see that there is the one letter to Dr Southall requesting documents.
A That is right, yes, one letter.
Q One letter set against the backdrop of a policy of “wait and see” coupled with him going to seek advice from his advisers.
A That is right.
Q Then five years later, in 2000, the matter springs into life again. Mrs H, in person, writes to you and in the letter she encloses a document which is headed, “report”, is that right?
A Yes. Do you wish to direct me to it?
Q I do not think we need to go to it. I can summarise it.
A This was raised yesterday.
Q I can summarise it and then I will ask you questions. She encloses a report and the report is on recordings which had been carried out on Child H.
A Yes.
Q And that document was in the main disclosure which you had voluntarily engaged in back in 1994.
A Yes.
Q So in that disclosure a report bearing an SC number?
A That is right.
Q She had known about that, and so had the solicitors acting for her back in 1994?
A Yes, I think that is right.
Q Your reply, please. Can we look at a letter dated 16 May 2000. It is in tab (l) at page 19. The first part of the letter I need not trouble you with, but towards the bottom of the page:
“When you wrote to me you also enclosed a copy of a report on respiratory recordings dated 27th September 1989”,
and again that just summarises the matter I have just reminded you of. Is that right?
A Yes.
Q Then you observe:
“This includes [Child H’s] Hospital registration number and another SC number ‘2026’. I am sorry to say that I do not know what this number refers to.”
That was how you put it in May of 2000. You had seen by this stage, in general terms, SC numbers, had you not?
A Yes, they were in other medical records as well, yes.
Q When you say “other medical records” you are talking here generally, not just about either Child A or Child H?
A No, I am talking about others.
Q Others?
A Yes.
Q So we are talking about the main library hospital medical records?
A Perhaps I should have qualified what I have just said. In a certain number of others, a limited number.
Q That is fair enough, but in the main library hospital medical records?
A Yes.
Q You have seen them before and you say to Mrs H, “Well, I do not know what this number refers to.” It may be – and I am not criticising you, you understand – that you did not make the link, because if you now turn to tab 3(b) at page 22 ---
A Is this the letter of 15 August from Dr Southall?
Q That is right. Just pause until the Panel catch up. It is the letter of 15 August. Again, this is not a criticism, but it may be you did not make the link, but Dr Southall had told you in August 1995 that they always kept their own medical records for all special cases that they dealt with at the Brompton?
A Yes, but he does not tell me how they were categorised.
Q Certainly, and again it is not a criticism but there are these two matters. On the one hand, the Brompton knew about the SC numbers and he had, in effect, told you (that is you, never mind other people) of the existence of the special cases. When you wrote this letter on 16 May that we have just been looking at, did you at that stage then think of writing to Dr Southall and saying, “What does this number refer to?”?
A No, I did not. I did not.
Q But you could have done?
A I suppose so, yes, but I had no reason to. It did not occur to me that I should have written or I might have written to Dr Southall.
Q It is not a criticism. I am just establishing the fact.
A Clarifying the circumstances.
Q Yes, just establishing the fact that out there, available, was the ability to clarify, but that step was not taken. In any event, what you did do was to send Mrs H a copy of all the notes held at Brompton that she had had before, in 1994?
A Her solicitors had had before, yes.
Q For these purposes I am using “solicitor” and “client” in the same breath. Okay?
A Yes.
Q You sent her the same documents that her solicitors had had in 1994. Had you ever had a query by the solicitors back in 1994 as to what the SC file number stood for?
A No, I had not. I had no query either directly from Huttons, who as you know wrote originally to the hospital, or through Norton Rose.
Q The last matter. Since 1995, of course, we – and I use that compendiously; those who operate professionally in the medico legal field, and I include you – of course have had to operate in a new culture, which is the culture emanating from the NHSLA?
A Yes.
Q The NHSLA in effect determines, in general terms, the approach to be adopted by individual Trusts – again, I hope I am not going to be accused of exaggerating – on just about everything? Is that right?
A (No audible response)
Q Again, maybe that is a bit mischievous, but on many, many aspects of litigation the NHSLA determines how it is to be conducted?
A Yes, I agree with that. There is an amount of latitude given to Trusts to manage litigation themselves though, but it determines the rules.
Q But nothing like the latitude that the Trust had before 1995. Would you agree with that?
A Yes, I would.
Q Because there is a centralised body that deals with these matters now and when you say that they lay down the rules, they establish the rules or approaches or policies in relation, amongst other things, to disclosure?
A Yes, indeed. There is an advice note from the NHS Litigation Authority specifically about disclosure and openness.
Q I think it really comes round to what you were saying earlier. There has been a gradual change about the approach to be adopted reflecting the period during which the NHSLA has been bedding in since 1995?
A Yes. I would say the bedding in period was really 1995 to 2002 and much, much tighter control by the NHS Litigation Authority since then.
MR COONAN: Mr Chapman, thank you very much indeed. You have been very helpful.
MR TYSON: Can I ask about the witness’s arrangements before I ask any questions?
THE CHAIRMAN: I was going to suggest that I think the Panel might, as an absolute minimum, need a five-minute comfort break at this time.
MR TYSON: I have a number of questions I need to ask this witness. Can I just ask him about the practical arrangements? (To the witness) You have a board meeting, so I understand?
A Yes, we do, at 2 o’clock.
Q At 2 o’clock?
A Yes.
Q How long will the board meeting go on for?
A Probably three hours, maybe three and a half.
Q When do you have to leave this building in order to go to that board meeting?
A I should really be there three-quarters of an your beforehand, at 1.15, so I would probably have to leave at 12.15, 12.30.
MR TYSON: Madam, I do have a number of questions of this witness.
THE CHAIRMAN: I think my question now is this. I have no idea how many questions the Panel has, but is your questioning likely to take a quarter of an hour?
MR TYSON: I can finish my questioning within his time-scale.
THE CHAIRMAN: I think what is in my mind is whether we should take a proper break now or whether things are so desperate we should just take a short break, a very short break.
MR TYSON: For ten minutes as opposed to 20 minutes?
THE CHAIRMAN: Let us split the difference. I think the minimum break we can take, by the time we have actually got downstairs and come back, would be about fifteen minutes, so can we agree on that?
MR TYSON: Yes.
(The Panel adjourned for a short time)
THE CHAIRMAN: As soon as you are ready, Mr Tyson.
Re-examined by MR TYSON
Q Towards the end of your cross-examination you were asked about the input of the National Health Service Litigation Authority on disclosure of medical records. It is right, is it not, that in relation to Child A and Child H the disclosure was dealt with under the pre-NHSLA era?
A Yes, it was.
Q So the NHSLA does not apply to the cases under consideration by the Panel?
A That is correct.
Q You were dealing with this matter when you and your solicitor had control of the disclosure process?
A That is right, yes.
Q You were asked in relation to Child A and the MRI scan in particular and you acknowledged that the parents were asking for that MRI scan as early as August 1987?
A Yes.
Q You noted that?
A Yes, from the letter.
Q From the letter, and that in January 1993 disclosure took place in relation to the records for Child A of all that you had. Is that not right?
A January 1993.
Q Yes. We can see that from the affidavit from Miss Minter that we have looked at in relation to that child?
A Yes.
Q I can take you back to that.
A No, now that you have mentioned her name I am content to say yes.
Q That was an affidavit that indicated that medical and nursing notes should be disclosed, but not matters relating to any correspondence with the local authority?
A Yes, that is right.
Q Medical and nursing notes in that context included, did it not, all the matters which one would find in the hospital records, such as clinical notes, nursing notes, results of investigations and the like?
A Yes, and correspondence.
Q And correspondence, including clinical correspondence?
A Yes.
Q So if there was an MRI report in the hospital notes in January 1993 that would have been disclosed?
A That is correct.
Q But as we know, and perhaps I can take you to tab 3(b) in front of you in bundle C2, page 1, notwithstanding disclosure in January 1993, that disclosure did not include, as we can see on page 2, the MRI report?
A Yes, item 3.
Q As you said, it would have been disclosed had it been in the notes in January 1993?
A Yes.
Q It was discovered it was not there in December 1994 and you are asked about it. Can you go to page 3, please, which is your letter to Norton Rose. In the second paragraph you indicate, four lines in:
“As it happens I do not have many of the documents they are seeking. I do possess images from magnetic resonance scans that were undertaken on [Child A] and they are enclosed with this letter and the medical notes.”
You did not then have the report?
A No, I have referred solely to the scan, the image.
Q Turning to page 8, in March 1995, you say in the second paragraph:
“I have made enquiries in the medical records library for additional records and have been informed that there are no further documents relating to the treatment of [Child A] at Royal Brompton Hospital.”
Would that include that, having made your enquiries, there was still no MRI report?
A Yes, I am prepared to say that, yes.
Q Would you go to page 10? Were you asked by your solicitors two things: one, a chasing letter to Dr Southall about these matters, and also that you should make a note,
“…on the various searches and investigations carried out and a list of the people you spoke to, in order to confirm in the affidavit that we cannot trace the records.”
A Yes.
Q The record that by that time you still could not trace was the MRI report?
A Yes.
Q Would you go to page 18? This is the letter described by my learned friend as the “anything else” letter because we can see that at the bottom of paragraph 1 you are asking Dr Southall for anything else, effectively?
A Yes.
Q At page 19 did you report back to your solicitors and in the middle of the main paragraph you have inquired in the medical records department to see if, for some reason, a temporary medical record was created at the time, and have been informed there is none?
A Yes.
Q So you had made even further enquiries and is it right that you did not come up with the MRI report?
A Yes. I specifically remember that inquiry too.
Q So you initially gave disclosure in January 1993 and still by two and a half years later you still did not have the MRI report?
A That is right, yes.
Q You were asked about document D6, which is the letter you subsequently---
A I am sorry, could you repeat the reference?
Q Yes. You were given an individual document, which is D6, which is the letter that you wrote to Field Fisher Waterhouse on 9 November. Do you have that?
A Yes.
Q Before I ask you questions on this, were you aware that the original of the MRI report was subsequently found in one of Dr Southall’s special case files?
A I was aware that – I cannot say whether it was original because I do not have the original; the original would have been signed in ink by the two consultants, and I cannot recall whether it was the original or whether it was a copy---
Q I am putting to you as a statement of fact, and I can prove it if necessary, can I suggest to you (and I can prove it) that the original of the MRI scan, the one with the original signatures, was in fact subsequently found in one of Dr Southall’s special case files.
A All right.
Q Let us take that as a given.
A Yes.
Q Thus, in that context one has to look at your second paragraph of the letter of 9 November, and you say:
“My Personal Assistant and I searched for the existence of the original magnetic resonance ….. image and report yesterday in the Magnetic Resonance Department, the X-Ray Department and the Medical Records Department at Royal Brompton Hospital. The outcome I am very sorry to say is that we have been unable to find them”.
So you could not find the original?
A I could not find the original. I had a duty in response to the inquiry to search for the original as I was asked to provide the original.
Q Yes. You say that you believe, from what others had told you, that it would have been destroyed.
A If the original had been returned to us, and I have said that the image and the report were returned by Norton Rose, then subsequently they were destroyed, and that information was given to me by the Medical Records Department.
Q I suggest to you that that is---
MR COONAN: I am sorry, but this is amounting to cross-examination of his own witness.
MR TYSON: I accept that that was an inappropriate start of this question. Another alternative, is it not possible, that the original remained in Dr Southall’s special case file?
MR COONAN: I mean, he has given the evidence based on what he was told, and anything else now is tantamount to cross-examination.
MR TYSON: Well, I will move on from that subject. The point has been made. You deal subsequently in that letter about what had come back to you from Norton Rose in February 1995, and this is in the penultimate paragraph of the first page. That paragraph, on a re-reading of it, does not refer to the report, does it?
A No, I have not referred to the report.
Q Merely the scan.
A The scan.
Q The tracing of the matters in the computer system that you subsequently carried out that you were asked about, did that reveal the original written report?
A No.
Q You were asked about Child H, and in particular you were taken to tab 2 at (l), and within it to page 11, and you taken to the request that you made on 1 July 1994, at the bottom of that, to a request you were making of Professor Southall for any further file.
A Yes.
Q You were also taken, I believe, to the next tab which was (n), if you look at (n).
A Yes.
Q This is a letter that you subsequently wrote to your solicitors indicating in the first paragraph that you had written to Professor Southall, and you say, “To date he has not replied”.
A Yes.
Q Did you get any reply at all from Dr Southall to that request for information relating to another file?
A No, I did not.
Q You were taken to a letter, an individual letter, at D7. It is an individual document that you were given in the course of being cross-examined, which we have as D7, which is a letter from you to Professor Southall dated 4 January 1995.
A This must be it.
Q Yes. You were given it, I hope, and I will give you a copy. (Same handed)
A Yes.
Q One question arising out of this letter: did this letter relate to the question of who should represent Professor Southall, or is it a letter that relates to disclosure?
A Sorry, could you repeat the question?
Q Yes. The question is this: did this letter relate to the question of representation of Professor Southall, or did it relate to the question of disclosure?
A It is about representation.
Q Thank you. Again, dealing with the H matter, you were asked by my learned friend whether the Trust in that case had given disclosure in September 1994 and you confirmed that it had.
A Yes.
Q That disclosure would have included the normal kind of disclosure in these cases, which would have included such records that you had of clinical notes, nursing notes, correspondence, and the results of investigations?
A Yes, it would have included all that and indeed more, everything that they requested in the schedule for the Royal Brompton Trust as a defendant – schedule 2, I believe.
MR TYSON: Thank you. I have got no further questions, but you may be asked some questions by the Panel.
THE CHAIRMAN: It is possible that the Panel has some questions now for you, Mr Chapman. Mr Simanowitz is a lay member of the Panel.
Questioned by THE PANEL
MR SIMANOWITZ: Good morning, Mr Chapman. I just have one very simple question about clarification. In the letter D6, which you wrote to Field Fisher, there are two references to the MRI. In the second paragraph you refer to an original MR image, and in the fourth paragraph you refer to an original MR scan. Are those two the same thing?
A Yes, they are.
MR SIMANOWITZ: Thank you.
THE CHAIRMAN: Mrs Lloyd is a lay member of the Panel.
MRS LLOYD: Good morning, Mr Chapman. I have just got a couple of questions for you. Could you tell the Panel whose responsibility do you believe it was to have informed the medical records library or yourself that a special case file existed on patients at the Royal Brompton?
A I think it would have been the department concerned.
Q When you say “the department concerned”, could you be a bit more specific, please?
A I think it would have been Professor Southall’s academic department.
Q A similar question, but again for clarity, given the role you have; whose responsibility do you believe it was to have informed yourself or the medical records department that a special case file on patients of the Royal Brompton Hospital existed at the North Staffordshire Hospital?
A That is difficult to answer because the file is at another Trust, but I believe the Trust could or should have informed either the medical records department or the Chief Executive.
Q Again, when you say “the Trust”, it is an inanimate object, could you be a bit more specific?
A North Staffordshire Hospital Trust.
MRS LLOYD: Thank you.
THE CHAIRMAN: Mr McFarlane is a medical member.
MR McFARLANE: Good morning, Mr Chapman. Following on from Mrs Lloyd, I have two questions. Does the Royal Brompton Hospital have a policy of allowing records to be transferred from the Royal Brompton to other hospitals?
A It has a records management policy and a records management strategy, and that does have references to disclosure of records to other organisations, and indeed transfer or dispatch of medical records to other organisations.
Q When did this come into force?
A 1999, to my knowledge. It came as a consequence of National Health Service guidance to health organisations, and came out as a result of a Department of Health strategy about retention, storage and indeed destruction of medical records.
Q Prior to that time what was the policy of the hospital?
A There was an earlier policy, I believe it dated from 1981, but I have very little knowledge of the contents, and indeed I never saw it until a few years ago when I was asked to disclose it to an inquiry.
Q So if you saw it a few years ago, could you let us know what it said?
A In 1981?
Q Yes.
A I could not actually, on the knowledge I have here.
Q One further question: could I please take you to the letter which you have entitled “JC5”, which is found at C2 3(b), page 8, which is the letter that you wrote on 22 March 1994 to Norton Rose Solicitors.
A Could I just look it up, please?
Q By all means. It is in bundle C2, under tab 3(b), page 8.
A Yes.
Q You have been taken to this document on a couple of occasions. If you take the second line in the second paragraph, and you say, “…and have been informed that there are no further documents relating to the treatment of [Child A]”, if I look at the three words “no further documents”, does this refer to paper-based records only, or does it include data held on a computer system in electronic format?
A That refers to documents in paper format.
Q Paper format only?
A Paper format only.
MR McFARLANE: Thank you very much indeed. No further questions.
THE CHAIRMAN: I have a question. Finally, at some point in your cross-examination, you told Mr Coonan in one way or another Brompton has had the MRI scan one way or another throughout the period, and you said, “I agree”. Now, was the period there the whole period in question from the point when the MRI scan was done to the present day, if you like?
A The original scan was disclosed to Norton Rose, they returned it in March 1995, the hospital then retained it until it was destroyed, and I was asked when it might have been destroyed, I could not be exact, but I thought 1999/2000.
Q Did your comment refer to the report on the scan?
A No, I was referring to the scan.
Q Thank you.
A I am sorry, the scan was destroyed and the original report has been destroyed, but the report has actually been transferred to the imaging module of the current system, the PAS.
Q This is where I am feeling confused, because if the report is now on your computer system you must have got it from somewhere to get it onto the computer system. We have been told by Mr Tyson that the original report was elsewhere and has now been recovered, but does that imply that the Brompton Hospital had a copy of that report somewhere?
A The hospital must have had a copy in order to be able to transcribe it onto the imaging module of the PAS.
Q It must have had a copy, but nevertheless there were times when you were searching for that document ---
A And I could not find it.
Q You could not find it.
A Yes.
Q But the later evidence suggests that it was nevertheless somewhere in the Brompton Hospital.
A Yes.
Q But whatever the Brompton Hospital had, it was a copy, we understand, but you cannot demonstrate that.
A I cannot give you an explanation as to what happened to it within the Royal Brompton Hospital after Professor Southall sent a copy to me which I copied on to Norton Rose. It was then, I think, put into the medical records and then destroyed.
Q I am now confused again. Is it possible that it got into the Brompton computer records via a copy that had come from Professor Southall?
A It is possible, but I cannot explain it and I cannot say for certainty. Whatever happened, one way a copy did reach the medical records, the X-ray department acquired it and transcribed it.
Q Can I go back then, can you not be sure that a copy existed at the Brompton throughout that period?
A No, I cannot be sure, I certainly could not find it.
Q Is it possible that the explanation for it appearing on your present computer records is that since the period when you could not find it a copy has been made of the original and has reappeared?
A That is possible, yes.
Q That is possible.
A That could be possible, yes.
Q And you cannot say either way.
A No, I cannot, no.
Q Thank you very much. Dr Sarkar has thought of a question.
DR SARKAR: I now have a question arising from madam chairman’s question. Is it possible that the computer printout of the MRI report which you dug out of the computer was actually inputted at the time of writing the report way back in 1987, or did they not have computers at that time?
A I cannot answer that because I was not at the Royal Brompton Hospital at that time, and I do not know for certainty whether or not there was even an imaging module of the old patient administration system to enable it to have been actually inputted. What I have established actually since I wrote this letter is that the imagine department is still backloading old X-ray and imaging reports onto the new module.
Q So it will be safe to assume that they were not inputted to the computer at that time, in 1987.
A I have no information to say that it was on the original patient administration system simply because I do not know whether there was an imaging module at that time.
Q Would you agree that if they had an imaging module and the report was directly inputted before making a proper readable copy, then the Brompton would have had the report at all material times.
A Yes. Given what I know of the two consultants who signed it, I would feel fairly confident that they would have done it, yes.
Q Thank you.
THE CHAIRMAN: That appears to complete the Panel’s questions but it is possible that either counsel might have questions arising from those questions.
MR COONAN: No, thank you very much.
Further re-examined by MR TYSON
Q You were asked two questions by Mrs Lloyd and the first related to whose responsibility it was to tell the medical records department at the Brompton that a different file was being kept, and you answered that. Then you were asked whose responsibility it was to say that the file had been taken to North Staffordshire and was at another trust; the answer you gave was that the trust could and should have informed the medical records department at the Royal Brompton. Would your answer be any different if the trust at North Staffordshire was itself unaware that there was a special case system?
MR COONAN: Again, I do object to this. This is wholly hypothetical and it is tantamount to cross-examination.
MR TYSON: It is not tantamount to cross-examination, it arises directly out of a question that Mrs Lloyd asked, it follows directly from the answer that he gave and it was not presented in a leading fashion.
MR COONAN: I maintain the objection.
THE CHAIRMAN: The Legal Assessor may have a view that would help the Panel on this.
THE LEGAL ASSESSOR: In ordinary course such a question would amount to cross-examination of the witness and of course counsel cannot cross-examine his own witness, but as it has arisen from a question from a Panel member in the circumstances I would advise the Panel that the question is permissible.
THE CHAIRMAN: I will just check with the Panel that they accept that. The Panel accepts that advice so we will regard the question as permissible.
MR TYSON: I do not know whether you can remember the question, or do you want me to repeat it?
A I would be grateful if you could repeat it.
Q You were asked by Mrs Lloyd whose responsibility it was to tell medical records at the Brompton that the SC file or a file had gone to another hospital, and you answered that that Trust should have informed medical records. My question was this: would your answer be any different if you were aware that that trust itself had no knowledge of these SC files?
A If that trust had no knowledge of the existence of the files I do not see how it could have informed the Royal Brompton and Harefield Trust that the file existed there.
Q If the only knowledge of these SC files at that new trust was Dr Southall and his department, whose responsibility was it to tell the Royal Brompton that that file had been transferred from the Brompton up to North Staffs.
A If I may go back slightly to one question before that, I was, I recall, asked who should have told the trust management that the files or records were being transferred; my answer is no different.
Q Just remind me what the answer is.
A What I said was that if the files located within Royal Brompton Hospital were being transferred elsewhere, the head of department – and I was asked who that was and I gave the answer, Professor Southall – should have informed the trust.
Q You were asked by Mr McFarlane about whether there was any policy prior to 1999 about the transfer of records to another hospital, and you indicated that there was a policy in 1981. Two questions arise out of that: firstly, could you send, having given your evidence, a copy of that policy to Field Fisher Waterhouse and I will ensure that it is distributed appropriately; secondly, from your memory of that document did it require agreement or consent of the Royal Brompton to take a file out of the Royal Brompton to another hospital?
A I do not know. I have never read that original policy in any great detail. I was asked to disclose it to another inquiry and that is when I became aware of it.
Q I have no further questions arising out of Panel questions, thank you.
THE CHAIRMAN: Thank you very much for coming, Mr Chapman. That now completes your evidence, you are no longer on oath, you may stand down and I think you are probably in quite good time for your meeting.
A Thank you very much, madam chairman.
(The witness withdrew).
MR TYSON: I now have an application which I seek the determination of the Panel upon. It is an application pursuant to section 116 of the Criminal Justice Act 2003 that I can read the evidence of Mr H as opposed to calling him as a live witness. The reason for that is that under the section, which I will take you to in a minute, it is permitted because he is unwell. Because he is unwell I ask that I can read his evidence rather than call him.
Section 116 of the Criminal Justice Act says:
“In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if …”
Three matters have to be fulfilled.
“Oral evidence given in the proceedings by the person who made the statement would be admissible …”
The first category therefore is if he came along and gave the evidence would that be admissible evidence, and the answer is yes to that. So hurdle one is carried. Hurdle two is: “The person who made the statement … is identified to the court’s satisfaction.”
Hurdle two is crossed. Hurdle one is can he give admissible evidence? Yes. Hurdle two is can he be identified? Yes. Hurdle three is any one the five conditions mentioned in subsection (2) is satisfied, and the condition that I rely on is set out in subsection (2)(b):
“That the relevant person is unfit to be a witness because of his bodily or mental condition.”
There are, therefore, three hurdles that I have to jump over: one, can he give admissible evidence? Two, can he be identified? Three, is he unfit to be a witness because of his bodily or mental condition?
In those circumstances it is open to the Panel to take this evidence and there is a major matter that you have to take into account: firstly, whether it is admissible, which I say it is, and, secondly, what weight you give to the evidence bearing in mind that part of it may be challenged. The question of weight does not affect the question of whether you can receive it, the question of weight comes into having received the evidence what value do you give it, it not having been cross-examined.
There is guidance given on that and I refer, in shorthand, the learned Legal Assessor to paragraph 11-18 where it says effectively that the jury should be warned about the weight to be given.
“… the strength of any warning is to be decided on the basis of the facts of the individual case, the issues and the significance of the statement in the context of the case as a whole, the jury should be warned, especially in a case where the evidence in the statement is disputed, that in assessing the weight of the evidence they should take account of (a) the fact that, unlike evidence given orally in court, it will not normally have been given on oath … (b) the fact that it has not been subject to cross-examination, and © the circumstances in which the statement was made, particularly if it is apparent that it was made for the purposes of pending … judicial proceedings, or of a criminal investigation.”
The fact that it may have – and I have to accept probably will have – less weight because it will not be cross-examined upon should not, in my submission, affect the question about whether you receive it in the first place. My application here is whether you should receive it in the first place, and it does tick all the boxes – if I can put it that way – that you should receive it in the first place.
I rely on two matters in respect of the evidence that this witness is unwell. The first bit of evidence you heard from my client when she gave evidence, and I refer in particular to the transcript that we have of Day 6, page 34 at B where I asked Mrs H what was wrong with her husband. I said:
“ I just want to ask you something completely different, Mrs H, and that is about the state of health of Mr H. Is he able to come to give evidence?
[A] No.
[Q] What is wrong with him?
[A] My husband had an emergency quadruple heart bypass in 1998. Three of the bypasses have failed. He has chronic angina and the stress of coming here would be too much, and the stress of the video link would have been too much for him as well. He could not have handled it. He tells me with angina pain you cannot concentrate on anything else and so his doctor considered it, as he did, too stressful. I am not going to lose my husband to something like this. He is the father of my four children and his health is more important.”
You will see the reference to what his doctor said, and can I hand out, please, to the Panel the copies of the letter from the general practitioner dated 24 August 2006?
THE CHAIRMAN: That will be C13. (Document C13 distributed).
MR TYSON: This is a letter from Dr Upton, who is a personal GP at the practice. It is dated 24 August 2006, and relates to this hearing, as we see. It is to the General Medical Council, “Professor Southall re Mr H”, and says,
“Mr H came to see me today and informed me that you require medical evidence that he suffers with ischaemic heart disease and angina of effort. This I can confirm and I feel that the stress of appearing at the hearing would exacerbate his angina”.
That is direct advice, in my submission, from the patient’s GP, that the stress of appearing at the hearing would exacerbate his angina. In my respectful submission, faced with that letter, coupled with the evidence of Mrs H about matters of stress, then I would submit that these abundant grounds show that I have crossed over hurdle three; namely, that the relevant person is unfit to be a witness because of his bodily condition. In those circumstances it follows automatically that not only should you admit the witness statement, to be read, but it is essentially your duty to admit it because I have ticked all the boxes, if I can put it that way.
There are three other subsidiary matters. The first subsidiary matter is that in discussing this matter with my learned friend, he indicated that he may be relying on Section 123, but in my submission Section 123 has absolutely no relevance to the issues which you have to consider. What Section 123 is headed is, “Capability to make statement”. Section 123 says,
“Nothing in section 116 [the section I have just referred to] makes a statement admissible as evidence if it was made by a person who did not have the required capability at the time when he made the statement”.
There is no suggestion that Mr H is incapable by reason of his mental state of making a statement; merely that he is not in a position to come here to give evidence. We are given further guidance in subsection (3) of what “capability” means. It says,
“For the purposes of this section a person has the required capability if he is capable of (a) understanding questions put to him about the matters stated, and (b) giving answers to such questions which can be understood”.
So it is clear that “capability” appears to refer to mental capability in understanding questions and giving answers, and that is not the issue in this case.
There is also two questions of a residual discretion which you have in any event to admit matters, which arise if I cannot go through the front door. The first residual area of discretion you have is given to you by Section 114 of the Criminal Justice Act. Section 114(1) says,
“in criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if”,
then for my purposes it gives two examples,
“(a) any provision of this Chapter or any other statutory provision makes it admissible” –
that is Section 116. Secondly, it gives a further provision,
“if the court is satisfied that it is in the interests of justice for it to be admissible”.
That is my residual argument. First of all, you should admit it because Section 116 covers the point directly. My subsidiary submission is that you should admit it in any event because the court is satisfied that it is in the interests of justice that it be admissible. In subsection (2) you are given guidance to take into account the following factors in deciding whether or not it should be admitted in the interests of justice. It goes from (a) to (i), and factor (a) is how much probative value the statement has in relation to the matter in issue. I would submit that it has great probative value in relation to the matter in issue.
Secondly, (b), what other evidence has been or can be given on the matter? The other evidence, of course, is Mrs H’s, but Mr H, I would submit, would corroborate what Mrs H is saying. Then ©, how important the matter or the evidence mentioned is in the context of the case as a whole. I submit it is important evidence because it goes directly to the heads of charge relating to Mrs H, which include the matters set out in Appendix One, and the matter related to any discussions about when the child was an in-patient; whether there was any discussion about a local paediatrician being involved, which goes directly to the specific heads of charge relating to this patient.
Then we have (d), where we look at the circumstances in which the statement was made. The statement was made in preparation for these proceedings and it has the usual health warning at the end of it, indicating, as is right,
“I understand that my statement will be used as evidence for the purpose of a hearing before the General Medical Council’s Fitness to Practise Panel and for the purpose of any appeal, including any appeal by the Council for the regulation of healthcare professionals”.
It continues,
“I am unable to give evidence in person or by video link due to health reasons. I believe the facts stated in this witness statement are true”.
So it is both a declaration or statement of truth and he signs it, and he also indicates that he is unable to give evidence in person. So that covers the circumstances there. Under (e) how reliable the maker of the statement appears to be. That is a matter you will have to assess and I cannot make any submissions on that save to say that he is the husband of Mrs H.
Under (g), whether oral evidence of the matter stated can be given and if not, why not. The oral evidence cannot be given because he is too unwell to give it. Under (h), the amount of difficulty involved in challenging the statement, and I accept that that is a point in that my learned friend cannot cross-examine. But that is always the case when a written statement is admitted and, as I keep saying, that goes to weight and not to admissibility.
Under (i), the extent to which that difficulty is likely to prejudice the party facing it. As this witness is saying much the same as Mrs H says, in my submission, my learned friend will not be prejudiced to a significant extent because one can take the questions that he will put to Mrs H and assume that he will put them to Mr H. You will recall that Mrs H was extremely firm on the issue that there was never any discussion by either Dr Samuels or Dr Southall about a local paediatrician being involved in any aspect of her child’s care.
MR SIMANOWITZ: I am sorry to interrupt, but I think you went from (e) to (g).
MR TYSON: Heading (e) was how reliable the witness was; (f) was how reliable the evidence of the making of the statement appears to be, and that is when I read out the statement of truth; (g) is whether oral evidence can be given; (h) is the amount of difficulty involved in challenging, and (i) is the extent to which that difficulty is likely to pose to the party facing it.
THE LEGAL ASSESSOR: Does Section 114 really take the matter any further than 116?
MR TYSON: No, it is not as strong as 116 and that is why I say it is a subsidiary ground. That is why I say it is the back door when I really want to go through the front door with 116. That is where my prime submission lies. Again, this is a subsidiary matter but I can and do refer you to the powers under Rule 50 with the proviso to 115, but again I make the point the learned Legal Assessor has made, that Rule 50 says – this is an old rules case –
“You may receive oral documentary or other evidence on any fact or matter which appears to them relevant to the inquiry provided that the only factual matters tendered as evidence would not be admissible”.
So you have a power to admit it if you are satisfied that your duty of making due inquiry into the case makes it desirable. The important words here are that you can receive it even if it is not admissible, and say in fact it is admissible and should be admitted. Those are my submissions.
THE LEGAL ASSESSOR: As regards Section 116, the burden of proving that this evidence comes within 116 rests upon you, does it not, Mr Tyson?
MR TYSON: I accept that.
THE LEGAL ASSESSOR: And it is the criminal standard.
MR TYSON: I accept that also.
MR COONAN: Madam, so far as the legal framework is concerned, my learned friend was troubling himself unnecessary. This has nothing to do with Section 123. What we are concerned about is Section 116, which is really the focus of what you need to consider. Also I entirely agree and commend to you that what we have to look at is precisely the sections to which your attention was drawn, and in particular 116(2)(b). May I just repeat it? This is one of the conditions and it is really the prime condition for your consideration,
“That the relevant person [in this case Mr H] is unfit to be a witness because of his bodily or mental condition”.
As has already been conceded by my learned friend in answer to a question put to him by the learned Legal Assessor, it is for the complainants at this stage to prove, because the burden is on the complainants, to a criminal standard, so that you are sure that that condition has been satisfied. It is not for us to prove anything.
The guidance – and I draw the learned Legal Assessor’s attention to the commentary in Archbold to the relevant paragraphs – is that coupled with the principle that it is the criminal standard of proof that applies, is guidance to a court supplying it that lip service to this should not be paid; there are dangers in paying mere lip service to this. It therefore requires an examination of the evidence that is available to you upon which you need to make that decision.
May I give you two preliminary background factors? First of all, the events with which you are concerned here occurred in 1990, and the statement, which is now sought to be adduced in evidence, is dated 29 October 2006 – 16 years later. What therefore is the evidence?
You have a letter from Dr Upton, and I stress that it is a letter and a very short letter. You will not have any opportunity of asking Dr Upton any questions at all about this man’s condition other than that which is stated. As against that, you have the evidence which was given to you by Mrs H, and I refer again to Day 6, page 34 of the transcript, picking it up at letter H. She confirmed that Mr H has a job at the Morriston Hospital in Swansea; he is a dental technician; he works a five-day week. She told you at letter E on page 35 that travelling to London is not a problem. She appears to focus on the fact that giving evidence would be too much.
As against that you know – page 36 letters D to E – that she agreed that Mr H a very short while ago, in 2006, was interviewed by journalists; he took part in a television programme; was able to be filmed walking along near the beach in Swansea; was willing to answer questions put by a journalist, but she makes a distinction between being asked questions by a journalist and being asked questions here. I accept, of course, that there is a qualitative difference between being asked questions by a friendly possibly a compliant journalist. Of course there is. But whether or not the condition described in such few words by Dr Upton is, on its face, sufficient to prevent him in his capacity as a potential witness from giving evidence, where you have the ability to control how questions are put; how long the evidence is to be given by him and so on, you are the masters of that; whether that is sufficient for that condition to be satisfied, it seems to us at least to raise questions , and it will be for you to rule on that.
I hope that you will see immediately the basis for our concern; that if, in truth, the condition is not satisfied on proper examination and proper inquiry, why then evidence would have been admitted in written form without any possibility of the defence to cross-examine this witness, somebody who you are told is purportedly going to corroborate Mrs H on an important issue in this case. All the more reason, therefore, why the prejudice to the defence may be considerable. That is why you should look with very careful scrutiny at whether or not the burden of proving that this condition is satisfied is made out.
It is perhaps interesting too that Mr H not only says that he does not want to come here appearing at the hearing, but he does not even want the comfort of a video appearance.
You have already decided that video evidence is appropriate and we would say that it therefore does raise question marks over whether or not this is – and again I do not want to raise the temperature – a bit of a challenge(?).
The doctor, Dr Upton, does not deal with the question of video evidence. He deals with the question of appearing at the hearing, and by that I read as appearing here before you in the flesh.
I respectfully agree that section 114, correctly described as a residual basis for an application, really does not take the matter very much further, but insofar as you are moved to look at it, I do stress that the relevant condition is in subsection 2(g):
“whether oral evidence of the matters stated can be given and, if not, why it cannot.”
Well, it is the same point that I have just been addressing you on. Subsection (h):
“the amount of difficulty involved in challenging the statement.”
Well, it is unnecessary even to assess the amount of difficulty. The difficulty is absolutely 100 per cent. There would not be any opportunity to talk, to cross-examine this witness. At subsection (i):
“the extent to which that difficulty would be likely to prejudice the party facing it.”
Mr Tyson appears to say, “Oh well, since Mrs H gave evidence on the point and dealt with it and gave important evidence, there is no prejudice because Mr H is going to say the same.” That is what it amounts to. That is a rather Kafka-esque argument, I must say. Indeed, we would prefer to look at it in a different way. I have cross-examined Mrs H. It is a matter for you to make an assessment of what the weight is to be attached to that evidence given by her. If you are now to receive evidence on the same point, purportedly corroborating her, and I cannot cross-examine, the prejudice to the defence is immense. That, we would say, is the sensible way of looking at it.
As to section 116, we say look very carefully at whether the evidence before you is indeed sufficient to satisfy 11-6(2)(b). If it is not, we would say it is insufficient even to look at 114, but if you did, then for the reasons I have already indicated, with particular reference to (g), (h) and (i), in those respects the evidence ought not to be admitted before you.
Madam, those are the submissions that I make.
THE LEGAL ASSESSOR: Rule 50?
MR COONAN: Thank you very much. Rule 50. In a case of such importance and on issues of such importance, if you take a view and come to a decision that the evidence is inadmissible following a consideration of the application of 116 or 114, this is not a case for the application of rule 50, which is a long stop. I entirely accept that in some cases rule 50 can come to the rescue of the prosecutor, but not here, because by definition if it is found that the document is inadmissible for the reasons I have already analysed, it would be wholly prejudicial to the defence to admit it under rule 50. It would be to drive a coach and horses through a finding of inadmissibility and render such a degree of unfairness to the defence as to raise questions under Article 6, in our submission.
That is the way I put it.
MR TYSON: What my learned friend is effectively saying is, “Ignore the letter and the advice from this witness’s GP.” In my submission, it is impermissible for you to ignore the solid advice of this potential witness’s clinician when he not only confirms that the witness has ischaemic heart disease and angina of effort, but also he says the important words:
“… I feel that the stress of appearing at the hearing would exacerbate his angina.”
That is a clear medical opinion which you have in relation to this. There is no other medical opinion. My learned friend has not brought another saying, “No, he is perfectly all right.” The only medical document that you have is that one and, in my respectful submission, it easily mounts the hurdle, however high it is – criminal, which I accept, and for me to prove, which I accept – that this person is unfit to be a witness because of his bodily condition.
You have it in one clear sentence from his general practitioner, who knows his patient. It was directly related to this hearing, and in my respectful submission whether he appears in person or appears by video link, there is no qualitative difference in that he will still be having the stress of a hearing and the stress of answering questions under oath and the stress of being cross-examined and the like. There is no qualitative difference, as we have rehearsed in previous arguments, between giving evidence in person and giving evidence on video link, because they are virtually the same.
If for any reason – and I do not accept this for a moment – you hold that letter that I have not proved to the criminal standards that this person is unfit, it is then that section 112 or rule 50 apply, which does give you a residual right to admit it. But, as I say, my primary and important submission is that this person should be entitled to put his evidence before. It is important, relevant, admissible evidence that he seeks to give. He is merely prevented from it by way of his physical condition and you have abundant, clearly stated opinion as to why he should not come. To go round this letter, if there is no evidence to the contrary, in my respectful submission is not open to this Panel.
Those are my submissions.
THE CHAIRMAN: Would you just give me one moment? (The Chairman and the Legal Assessor conferred) It is now for the Legal Assessor to give advice to the Panel. The Legal Assessor has indicated to me that he requires some time to consider his reasoned advice and given the time we will be taking the lunch break. I propose that we rise now until 2 o’clock to give the Legal Assessor some time to consider his advice. He indicates we should be ready by then.
(Luncheon Adjournment)
THE CHAIRMAN: The Legal Assessor I believe is now ready to deliver his advice. I call on him. He has prepared a written copy.
THE LEGAL ASSESSOR: Mr Tyson makes application for the admission in evidence of a statement by Mr H. At this stage the Panel is concerned only with the admissibility of the statement and not its weight.
His application has three prongs:
First he relies upon section 116 of the Criminal Justice Act 2003.
The provision of the statute relevant to this application is that such evidence is admissible if the maker of the statement is unfit to be a witness because of his bodily or mental condition. It is the Panel’s task to decide whether Mr H is unfit within the meaning of the statute.
The burden of proving this rests upon the complainants; the doctor does not have to prove anything, in particular he does not have to prove that Mr H is not unfit.
Before the Panel can find that he is unfit, it must be satisfied so that it is sure that this is the case; nothing less is good enough.
Mr Tyson relies upon two matters. First, the evidence of Mrs H, transcript day 6, page 34B; second, the letter from Dr Upton.
Mr Coonan draws attention to the evidence of Mrs H in cross-examination at pages 34-36 of the transcript.
It is for the Panel to consider all these matters when reaching their decision.
The second prong, which Mr Tyson says is secondary should his first submission fail, is made under section 114 of the Act. This provides that a statement is admissible if it is in the interests of justice that it should be. The factors to which the Panel must have regard are:
a. how much probative value the statement has in relation to the matters in issue;
b. what other evidence has been given;
c. how important the evidence is;
d. the circumstances in which the statement was made;
e. how reliable the maker appears to be;
f. how reliable the evidence of the making of the statement appears to be;
g. whether oral evidence can be given and, if not, why;
h. the difficulty involved in challenging the statement;
i. prejudice to the party facing it.
Mr Tyson relies on a, b, c, d and g; Mr Coonan points to g, h and i. Mr Coonan points in particular to the fact that this is a corroborative statement of the evidence of Mrs H that is firmly in issue and the consequent prejudice to the doctor.
The third prong is in regard to rule 50 which enables the Panel to receive evidence which appears to be relevant. He (that is, Mr Tyson) describes this as a long stop should the other submissions fail.
Mr Coonan contends that it would be wholly prejudicial and unjust to admit the evidence under rule 50 if it were held inadmissible under the statute.
I advise the Panel that it should consider section 116 first and only if not satisfied that the witness is unfit should it consider section 114. They should move to rule 50 only if that contention also fails.
The Panel may well feel that the real thrust of this application is under section 116.
The decision in regard to this application is of course a matter for the Panel and the Panel alone, it being the judge of the facts as well as the law.
THE CHAIRMAN: Thank you. Does either counsel have any comment on the legal advice?
MR TYSON: No, madam.
MR COONAN: No, thank you, madam.
THE CHAIRMAN: The Panel will now retire into private to consider the application.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE PANEL DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
DECISION
THE CHAIRMAN: I am now going to read the Panel’s determination.
Mr Tyson
You have made an application that Mr H’s statement be admitted in evidence.
The first ground of your application is that Mr H’s health is such that he is unfit to give evidence and that his statement should be admitted in accordance with section 116 of the Criminal Justice Act 2003.
You contend that Mr H is too ill to give evidence to the hearing either in person or through video-link. You have referred the Panel to the letter from Dr N. Upton, dated 24 August 2006. This states that Mr H is suffering from ischaemic heart disease and angina and that the stress of attending the hearing would exacerbate his angina.
You make a secondary submission that it is in the interests of justice to admit this statement under section 114 of the Act. You submit that this witness’s evidence would have probative value.
Finally, you also referred the Panel to its discretionary power under rule 50 of the GMC Procedure Rules, which enables it to receive evidence that appears to be relevant.
Mr Coonan has opposed your application. He contends that the report of Dr Upton is inadequate to satisfy the Panel that Mr H is unfit. He refers to the evidence of Mrs H that
Mr H is in full-time work and is able to travel to London. He also submits that the difficulties that would arise and the consequent prejudice to Dr Southall if this statement were admitted under section 114 would give rise to injustice. Mr Coonan further contends that if the statement were held inadmissible under the statute it would be unjust to admit it in evidence under rule 50.
The Panel considers that the letter from Dr Upton is not of itself sufficient to prove that
Mr H is too ill to give evidence at this hearing. It makes no reference to any medical history or medication. Further, the letter does not address whether Mr H would be fit to give evidence through a video link. The Panel has considered this letter, together with the oral evidence of Mrs H, but it has concluded that it has not been proved to the required standard that Mr H is unfit to give evidence. Your submission under section 116 therefore fails.
The Panel next considered your submission under section 114. Mr H’s statement has been described by you as being corroborative of the evidence of Mrs H. The Panel has concluded that the difficulties facing Dr Southall in challenging the statement, and the consequent prejudice to him, significantly outweigh the factors on which you rely. It has therefore concluded that it would not be in the interests of justice for this statement to be admitted.
Finally the Panel has considered its powers under rule 50. It has concluded that, as it has held this statement to be inadmissible under the statute, it would be wholly unjust to admit it under rule 50.
The Panel therefore does not accede to your application.
MR TYSON: Madam, before I close my case formally there are a number of matters which can be dealt with most expeditiously by admissions rather than by calling any more evidence. My learned friend and I are hard at negotiating on those admissions and I think we jointly invite the Panel to close its deliberations for the day so that I can, by 9.30 tomorrow, close my case, without having to call any further evidence. There are a number of matters on a travelling draft, if I can put it this way, that look likely to admitted that would be acceptable to the complainants. Dealing with machinery, I think my learned friend may have other things to say.
THE CHAIRMAN: Thank you. Are there things that you would wish to say to the Panel at this time, Mr Coonan?
MR COONAN: Yes, just one or two helpful things. I am grateful to Mr Tyson, and I respectfully agree with that. Can I confirm that the parties are indeed well down the line of agreeing certain matters which will have the effect, when agreed, of saving the Panel a great deal of time and, dare I say, tedium in listening to a lot of what may be called formal evidence about documentation. It is a common approach in cases such as this and indeed in other forums, and you are likely to receive tomorrow morning therefore, reduced into digestible form, a series of admissions upon which you can work in the future. So it is designed to save you time in that respect.
The other matter: after my learned friend has closed his case, which, as he says, he anticipates at about half-past nine tomorrow morning, my intention at the moment, and I do want just a little time to ponder the matter overnight, my intention at the moment is to address you on a number of features of the notice of inquiry under rule 27(1)(e)(i). Madam, I am reluctant to develop any submissions I may have at this stage, obviously (a) because my learned friend has not closed his case, because that would be the time for making any such submissions, and, secondly, because, as I have already indicated to you, I need a little further time to ponder the position in order to make whatever submissions I do have much more efficient and directed to assist you. I anticipate those submissions could be made pretty shortly after half-past nine tomorrow morning.
THE CHAIRMAN: Thank you. It seems clear that in the interests of good conduct of the case we should adjourn and allow you the time that you need, and I understand from both of you then that you will be ready to begin again at nine-thirty tomorrow.
MR TYSON: Madam, that is what we anticipate. It is always difficult when one is responding to submissions of no case to answer if one does not know what the submissions are going to be about. My learned friend has given me some rough indications for which I am grateful, but I would be grateful if, before he leaves the building tonight, he felt able to tell me the particular counts which he seeks to attack so I will have some meaningful submissions to make in reply.
Dealing with housekeeping matters as to where we are now, if my learned friend was to make submissions, it would appear to me that they would take up to and possibly over lunchtime tomorrow to determine, when my learned friend would doubtless wish to call his client, Dr Southall. He has helpfully indicated to me that he thinks that that may be some time, which would take us, let us say, into Friday, sometime into Friday, no-one can say, pieces of string being as long as they are. Could I put just a small marker down that the later on Friday he stops, the more reluctant I would be to start cross-examining him, and would be looking for a break between the end of the doctor’s evidence in-chief and the start of my cross-examination. If I again lay a small marker down that I anticipate I may well be making application that I would start my cross-examination on the Monday.
These are all floating matters, and I am just trying to keep you informed as to the thinking of how the advocates are at the moment.
THE CHAIRMAN: We appreciate that. Thank you. So we will adjourn now until nine-thirty tomorrow morning.
(The Panel adjourned until 09.30 hours on Thursday, 23 November 2006)