GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)
Thursday 23 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 NINE)
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
SARAH LOUISE ELLSON
Statement Read 1
ADMISSIONS (Document D9)
MR COONAN 6
MR TYSON 6
SUBMISSION (Rule 24(4))
MR TYSON 7
MR COONAN 9
MR TYSON 11
ADVICE FROM THE LEGAL ASSESSOR 12
DECISION 13
FURTHER ADMISSION (Head 13(b)) 14
SUBMISSION (Rule 27(1)(e)(i))
MR COONAN 15
MR TYSON 19
MR COONAN 30
ADVICE FROM THE LEGAL ASSESSOR 32
THE CHAIRMAN: Good morning. Mr Tyson, we are with you.
MR TYSON: Madam, I am grateful for the time both yesterday evening and this morning, as a result of which a considerable amount of shortening of my case has taken place.
The last bit of evidence that I need to deal with is to read to you aspects of the statement of Sarah Louise Ellson. You in fact have this as C8, and perhaps I can ask you to get out your C8, and I need to, as it were, read into the record some portions of it. For your benefit, I am going to read paragraphs 4-18 and then 31-48.
STATEMENT OF SARAH LOUISE ELLSON
MR TYSON: This is a statement of Sarah Louise Ellson, and if we go to paragraph 82 she says:
“I understand that my statement may be used in evidence for the purposes of a hearing before the General Medical Council’s Fitness to Practise Panel and for the purposes of any Appeal, including any Appeal by the Council for the Regulation of Healthcare Professionals. I confirm that I am willing to attend the hearing to give evidence if asked to do so.
I believe the contents of this statement are true.”
It is signed by Sarah Louise Ellson on 15 November 2006. Paragraph 4 says:
“On 24 January 2006 Hempsons solicitors wrote to the General Medical Council. On page 12 of their letter reference was made to protocols being established by Professor Southall, including a protocol as to how Professor Southall would deal with confidential documents. As a result of this letter I wrote to Hempsons solicitors on 8 February 2006 asking that they provide any particular written documentation relating to the protocol(s). As a result, on 16 February 2006, I was provided with a one page document entitled ‘Security guidelines for Academic Department of Paediatrics’.”
Just pausing there, madam, that is at C3, section 7(d)(iv).
“As pointed out by Hempsons in their letter of 16 February 2006 ‘information’ was defined to include computer disks. Accordingly, on 1 March 2006 I wrote to Hempsons solicitors stating ‘we trust that these [computer disks] have been securely stored and therefore now request your client provides all computer disks relating to the SC files in this case’.
On 21 March 2006 I wrote again asking for any further ‘information’ held by Professor Southall on computer to be provided as soon as possible. I also wrote that day to the University Hospital of North Staffordshire, with whom I have previously had correspondence in order to obtain access to paper records. I explained to them that I now had reason to believe that there might be material held on computers or word processors and I asked them to clarify what information was held on computer systems at North Staffordshire Hospital (both on the main system and any separate word processors).
On 23 May 2006, presumably as a result of my request, the North Staffordshire Trust wrote to Professor Southall indicating that I had made this request and asking him to consider whether he had any ‘structured or unstructured information including electronic or manual systems’ and asking him to consider the ‘HISS, PC and email files’. I was provided with a copy of this letter.
On 31 May 2006 I wrote again to Hempsons reminding them of my request made on
1 March 2006 and asking for any documentation including information held on computer by Professor Southall. I also made them aware that I had seen the letter from the North Staffordshire Trust to Professor Southall dated 23 May 2006. I wrote again to the Trust that day to set out my concerns about obtaining computer information.
I wrote again to Hempsons solicitors on 26 June 2006 chasing for this information.
I received a response from Hempsons dated 27 June 2006 which indicated that the computer that ‘they’ (presumably Professor Southall and his team) were using at the relevant time was still in existence and that the department were working on accessing the computer and obtaining print outs in relation to the families at the centre of this case [A, D H and B]. In this correspondence Hempsons confirmed that there were also analog tapes and chart record of print outs which they stated would be uninterpretable without the correct equipment (they informed me that this data related to the biometric data recordings and that they assumed this would not be required.)
On 3 July 2006 I wrote to Hempsons indicating that I urgently awaited the print outs mentioned in their earlier correspondence and required confirmation as to exactly what computer information was held in each of my cases. Instead of asking them to provide the analog tape and chart recorder print outs I asked them to provide a schedule detailing to whom such documents and recordings related.
I also wrote to the Trust that day to confirm that I understood Professor Southall’s department were working on accessing his computer.
In a telephone conversation with Pauline Crossley of the University Hospital of North Staffordshire on 11 July 2006 she confirmed her understanding that the work on computer records was being done by Professor Southall’s team.
I had to write to Hempsons again on 14 July, 24 July, 2 August and 14 August chasing for computer information and a schedule of the analog tapes and chart recorder print outs. I was informed on 26 July that Professor Southall was on holiday. Finally on 18 August 2006, in a letter which crossed with a further chasing letter from my firm, I received 11 pages said to be print outs of the ‘computer database’ held in the cases of [D, H and A].
We were told that there were no recordings file for [M]. The letter from Hempsons was silent on the issue of documentation relating to the [B] case despite earlier correspondence on 27 June 2006 indicating that there would be computer records for this child.
I wrote to Hempsons on 25 August 2006 to request further information about the case of [B], and asking for further information about the ‘computer database’ and for a schedule of the analog tapes and chart recorder print outs. I also specifically asked to see the three ‘data files’ referred to in the [H] case.
I wrote again on 1 September 2006 making reference to my letter of 25 August 2006 and seeking a prompt response. On 11 September 2006 we received a letter dated
7 September 2006 indicating that Hempsons were taking instructions regarding our letter.
Finally on 22 September 2006 I received a letter from Hempsons in which they suggested that to resolve matters I should meet with Professor Southall and his legal representative at North Staffordshire Hospital. I immediately telephoned with some suggested dates but given that we had to co-ordinate three diaries the first available date was 31 October 2006.
I met with Professor Southall (with his solicitor from Hempsons) shortly after 11am on Tuesday 31 October. We met at the Academic Department for Paediatrics at North Staffordshire Hospital.”
Madam, can I now take you to paragraph 31.
“I was then shown a computer in the Academic Department. I was informed that this computer was stand alone and was not networked to other computers. It was clarified that it was from this computer material had been printed and sent to [Field Fisher Waterhouse] (see paragraph 13 [above]).
It was explained that actually the computer I was being shown was a physically different computer than the one originally used by Professor Southall and his team.
I was told that his computer was seized when he was suspended and taken away by IM&T (Information Management and Technology). On return from suspension Professor Southall was given a new (upgraded) computer onto which his files and databases had been transferred. It was this computer being viewed today.
Professor Southall’s solicitor indicated that she had made some enquiries about what may have happened to the computer during the period it was taken from Professor Southall but that the IM&T department had indicated that the staff involved at the time had since left. She had been told that only recently had proper IM&T records been kept and that there was no further information available.
Professor Southall explained that there were two databases on the computer ‘SC File’ and ‘Recordings’. When the computer was returned to him he found that the passwords had been altered for these databases and he had only recently (this summer) found out the new passwords (which in fact were the same as the old ones but with two additional digits at the beginning).
I asked who would have access to the computer and these databases. Professor Southall thought that he, together with Dr Samuels and the Clinical Physiological Monitoring Technician (a nurse) would have known the password and would have been responsible for entering the data.
In my presence Professor Southall opened the ‘SC File’ database first (it uses Filemaker software). He demonstrated that there were a variety of layouts to display the information held on each case but it appeared that ‘layout #1’ was the most comprehensive. This creates documents which are headed ‘Patient’s Data’. (In fact
I noted when I reviewed the documents again that we have been provided with screen shots of layout #8 for D and A but I am reasonably satisfied that this is the same information as was on layout #1).
Professor Southall indicated to me that he had searched for all the families relevant to the GMC case on the database and had printed out and sent (via his solicitor) the ones he had found. He had not previously been able to find anything for B ….. however, in anticipation of my visit he had tried again and on this occasion had located an entry for her. We searched under [the first name] and the computer suggested that there were 30 or so records, we then searched [B] and located the one entry for [Child B].
Professor Southall could not explain why he had not been able to find this entry previously and suggested that he was concerned that somewhere in the transfer of the databases to his new computer there may have been some form of corruption, he felt that the system was not now totally reliable.
Professor Southall then printed out the page we had found for [Child B]. He explained that a further problem created by the transfer of the database and/or the use of a new printer was that the layout when printed was not correct (some text prints over other text). For this reason, for some of the print outs he has supplied Professor Southall has prepared a screen shot version of the data.
The data printed out for B from this database consisted of one page. I asked if there was other information held on this database about this family but Professor Southall informed me that the sheet printed out held the entirety of the information on that family (that he had been able to find).
On this database there are 4449 records. This figure can be seen for example in the screen shot version of the printout for D.
We then repeated the search exercise for the other families. On this database we found one entry for ‘[H]’, one for ‘[D]’ and one for ‘[A]’ – we had earlier been sent these printouts by Hempsons on 18 August 2006.
I was then shown the second database ‘Recordings’. This database contains the template letter where the information ‘We performed a x hour overnight recording on the {date}’ with recordings and signals and result set out.
There are 1856 records on this database (this figure can be seen on the screen shot version of the print out for B). Again Professor Southall demonstrated a search in relation to each of the relevant families. We found entries for B (this was only apparently found on the morning of my visit) and H. There are in fact two entries for H both of which have previously been provided (marked record 1 and 2 (the digit near the top left hand corner of the printout)). Professor Southall indicated that this was because of the two recordings undertaken on H.
We could not find entries for D (although we searched under [the names there listed]) or A (we searched under [the names there listed]). Again I asked if the database contained more information than that shown in the printout. I was told that it did not.
I was asked whether either or both databases had ever been copied. Professor Southall indicated he did not know exactly what had happened when the computer was taken away during his suspension. He told me, in answer to my questions, that he did not have a copy of either database either on disc or on his laptop. He added that he viewed the information as confidential which is why he would not have it on his laptop.
I asked about the request which I understood the Trust made some time ago, that all material relating to children who were not patients at North Staffordshire Hospital should be removed from Trust property. Professor Southall said that he had not fully complied with the request. He said that he had removed the physical SC files for the relevant families (indeed his solicitor confirms that she now has (from Professor Southall) the original SC files for H and A). He said that he had removed such SC files to a secure storage site.
Professor Southall said that he had refused to remove the tapes, he felt they should remain at the hospital secured in a secure room. Following discussion with the Trust it was agreed that the tapes could stay. In relation to the databases, he could not easily remove part of them; he agreed that the databases included children who had and had not been Trust patients.”
That is all I need read about that. I understand that my learned friend is going to make various submissions and perhaps he would like to deal with the submissions he is going to make on behalf of his client.
MR COONAN: Madam, could I just introduce this? As you have probably gathered from last evening, there was discussion between the parties in the hope that we could reduce down to a digestible form evidence of a formal nature which would otherwise have to be given to you.
MR SIMANOWITZ: Chairman, I am sorry to interrupt. I must apologise. I have left some papers in my briefcase downstairs which I need to have. Could I have two minutes to go and get them?
THE CHAIRMAN: You have heard Mr Simanowitz.
MR COONAN: Yes, of course.
THE CHAIRMAN: Could you indulge him for a moment?
MR COONAN: Of course. I will start again when you return, if that is all right.
MR SIMANOWITZ: Yes.
(Short pause in proceedings)
MR COONAN: Forgive me if I just begin again. As you heard from counsel last evening, we were engaged in discussion to try and reduce down to really digestible parts evidence which would otherwise have to be given to you in a rather laborious way. It concerns essentially the nature and location of documents, of which there are, as you appreciate, many in this case. I think my learned friend has referred to it as a travelling draft, and indeed the travelling stopped this morning. We have reached agreement. What I am going to do is to hand to you now a signed document, signed by Dr Southall and dated, and I shall draw your attention to the content. My learned friend has, of course, a copy. (Copies distributed)
THE CHAIRMAN: It will be D9.
MR COONAN: It is strictly a ‘D’ document because I have been invited on behalf of Dr Southall to make the admissions, and I do that. It just means that it is helpfully done at this stage of the case rather than later on. You can see on the second page that it is signed and dated 22 November. I do not at the moment propose to read it into the record. It may be that you would care to study it, and the significance of it can become apparent as and when Dr Southall gives evidence on the relevant topics. For my purposes, that encapsulates the formal evidence that would otherwise need to be given, and I hope that is helpful.
MR TYSON: Madam, perhaps I can assist broadly as to the effect of these admissions. Essentially, it is an admission in relation to the Appendix One documents, that save for one document, all of the documents in Appendix One are original hospital medical records. The one document where that admission is not made is in relation to the manuscript note of
Dr Samuels which is in item 2 under Child H in Appendix One. Apart from that document, it is admitted that all the documents in Appendix One are original hospital medical records.
The second important aspect of the admissions is that save in relation to one document, it is admitted that each and every one of the documents in Appendix One are not contained elsewhere in the hospital medical records relating to that child. The only exception from that is that it is not admitted that the MRI report in relation to case A is not contained elsewhere in the hospital medical records. This considerably narrows down the issues in relation to Appendix One, bearing in mind, you may recall, the four questions that I said that you had to answer in relation to the charges relating to Appendix One, which I set out in my opening. Those included the questions: “Are they original hospital records?”
MRS LLOYD: Could you speak up please?
MR TYSON: “Are they original hospital records?” and, “Are they not contained elsewhere in the hospital medical records?”
I am asked to give an admission, the nature or purpose of which is not clear to me, but I will give it nonetheless. I admit that on 20 July 2005 the complainants’ solicitors, Messrs Field Fisher Waterhouse, served on the doctor’s solicitors, Messrs Hempsons, the statement of
Mrs D. I know she served two statements.
MR COONAN: The witness statement of 22 November 2004.
MR TYSON: The witness statement of 22 November 2004.
MR COONAN: Thank you.
THE CHAIRMAN: I am sorry, I did not quite follow that end bit. Could you possibly repeat it, so it is clear what you are admitting?
MR TYSON: Yes. I admit that on 20 July 2005 Field Fisher Waterhouse, solicitors for the complainants, served on Messrs Hempsons, solicitors for Dr Southall, the statement of
Mrs D, dated 22 November 2004.
THE CHAIRMAN: 2004?
MR TYSON: Correct.
Madam, I now have an application to make to you under the old Rules, rule 24(4), relating to an application to amend certain parts of the heads of charge. Rule 24(4) says:
“Where at any stage of an inquiry it appears to the Committee that a charge should be amended, the Committee may, after hearing the parties and consulting the legal assessor, if they are satisfied that no injustice would be caused, make such amendments to the charge as appear necessary or desirable.”
I have had a number of conversations with my learned friend, and some of these are at his request and suggestion and some of these are at mine. In relation to head of charge 10(a) my application is to add some words at the end of (a) and the words are “by you or on your behalf”, so head of charge 10(a) would now read, if you grant my application:
“You created, or caused to be created, an ‘S/C’ File wherein certain original medical hospital records relating to the child were then placed by you or on your behalf.”
The second application follows, in a sense, from the first, and it is in relation to the stem of head of charge 11. The application is to insert, after the word “placed”, the words “by you or on your behalf.” The second application relating to this charge is that in between the words “such” and “original” you insert the word “cited”, so that the stem would read:
“The placing, or causing to be placed, by you or on your behalf, of such cited original medical records in a ‘S/C’ File.”
The reference to “cited” is a reference back, madam, to head of charge 10(b) where I say, “The cited medical record is not elsewhere …”, and where I have cited the medical record is of course in Appendix One itself. The purpose of putting “by you or on your behalf” is to clarify the nature of the allegation against the doctor in this case, so the allegation in head of charge 10(a) is that he created or caused to be created the SC file and documents were then placed either by himself or on his behalf. Bear in mind that “on his behalf” I put in, as his function was that he was head of department and he was responsible for the management and control of the medical records of that department. Similarly, for the same reason there is the amendment to the stem of head of charge 11.
Madam, also, and finally, I ask for an amendment which is beneficial, in my submission, to the doctor. I ask that in head of charge 11(a) you delete the first four words and insert the four words “damaged the integrity of”, so that head 11 as amended would read:
“The placing, or causing to be placed, by you or on your behalf, of such cited original medical records in a ‘S/C’ File,
a. Damaged the integrity of the child’s hospital medical records.”
Madam, in relation to that last application you may recall when Professor David was asked questions by you, madam, in relation to that matter, you indicated that you and your colleagues had consulted a dictionary and the reference to this exchange between you and Professor David is on Day 5, page 40 and 41. The exchange goes:
“[THE CHAIRMAN]: One final question is, you were asked about the use of the word, “tampering”, and we took the opportunity in the break, we had to consider the meaning of tampering. I just wanted to be clear that we were understanding this the same way, because obviously we want to see a word that is in a head of charge as having the same meaning. As I had understood, it seems to be reflected in various definitions that we have to mean to interfere in a harmful manner; to engage in improper or secret dealings as in to “tamper” with a jury; to play around with, alter or falsify, usually secretively or dishonestly, to interfere without authority so as to cause damage. All those definitions seem to imply a level of perhaps either intent or dishonesty or whatever which I think you said you did not intend in your use of the word.
[A] That is absolutely correct.
[Q] But we have in the heads of charge something that says it amounts to tampering with, so I wanted to be quite clear whether the Panel’s view of the word “tampering” was the same as your view when we were perhaps looking at the evidence in your report in connection with this head of charge?
[A] I accept that there are obviously many different definitions of the word, and some of them imply intent and quite clearly that is not what I am saying. I suppose my summary of it is just two words, and that is damaged integrity – the integrity of the medical records has been damaged – and I use the word tampering simply because it is a word that appears in the context of medical records when that has happened.
I accept that many examples are where somebody has intended something quite dishonest, and that is not the case, but it is damaged integrity of the medical records is my use, if you like, of that record.
[Q] I think that perhaps the distinction is that tampering in its most usual word would be to do something to something that exists, to alter it, whereas I think that you are saying, as I read what you said in your report again, that to fail to put something in that in your view ought to be there amounted to tampering because, as in the words you are now using, it damaged the integrity. Would that be a correct way of interpreting how you have used the word?
[A] Yes …”.
I cannot put the case any higher than Professor David, my expert, puts it. He used the word damaged integrity on the records and that is why I apply to amend head of charge 11(a) in those ways.
THE CHAIRMAN: I see Dr Sarkar is indicating he may have an immediate question.
DR SARKAR: It is not a question, it is just a comment, because it goes in the record. You started off your submission by saying the exchange between Madam Chairman and Professor Southall, when it should have been exchange between Madam Chairman and Professor David.
MR TYSON: I apologise. Thank you very much for the correction, of course it was with Professor Tim David. I am grateful for that.
So those are my applications to amend in three ways: one in relation to 10(a), one in relation to the stem of 11, and one in relation to 11(b). In my submission, these are, if I can put it this way, helpful
THE CHAIRMAN: 11(a) rather than 11(b) I think, is that right?
MR TYSON: I seem to be saying all the wrong words. 11(a): In my submission they are helpful amendments because they focus on the task that this Panel actually has, they set out the responsibility as to the claims alleged, and they do not put the case relating to the medical records any higher than the expert, Professor David, put it himself. So that is my application under rule 24(4).
THE CHAIRMAN: Mr Coonan?
MR COONAN: Madam, could I deal with the last matter first, so we are looking at 11(a). My learned friend is quite right to draw your attention to the questions and indeed answers given that he has just rehearsed at Day 5/40 and 41.
Just for completeness, so that you have a full picture of the exchanges, of course they began with my questions to Professor David. You can find those at Day 5/12C-F. Since my learned friend has actually in effect read out the exchanges, I hope you will forgive me if I do the same. It is quite short. Picking up at C:
“I suggest to you that what we have here is not a case of tampering at all; what one has here is filing in a different place – and we have been through that – but they are all securely kept; none of them, it would appear, have been lost; none of them, it would appear, have been damaged; none of them spirited away; and, depending on the evidence, all are available for access. I am not following, therefore, the basis for you saying that the medical records have been tampered with.
[A] Would you like me to comment?
[Q] Please.
[A] I think it is a very fair question [says Professor David]. I have not brought a dictionary with me to explore the meaning of the word ‘tampering’, but it may be helpful for me to clarify as to what I do not intend it to mean?
[Q] Right.
[A] I do not think there is any evidence of any deliberate intent to mislead or damage or cause harm. I use the word ‘tampering’ simply because it is a word that is used quite frequently when reference is made in circulars that we get about the integrity of medical records being lost, and I accept that some of those cases will concern deliberate interference with a medical record, a doctor deliberately taking out a set of notes because he or she does not want someone to see what he has written. Clearly nothing like that is involved here. Or it might be used where a doctor – I suppose Dr Shipman is the most famous example – created his own false medical records. There is no evidence of anything like that. So I think the question is very fair. Tampering is not a word that I normally use, [just pause there, of course, as you know, it is referred by him in his report] but I meant it as a word that is used to describe a process that adversely affects the integrity of medical records, and I guess the justification for a fairly strong word is ultimately what I think everybody agrees, which is the sacrosanct nature of medical records. I hope that helps clarify where I am coming from? [says Professor David]”.
Of course that was followed, madam, by your question to Professor David.
I thought it might be helpful so that you had as it were the answers from two quarters that you can put together when you make your decision in relation to this application. Having said that, I do not oppose the application. That is not to say I agree with the allegation made, of course, that is a totally different matter, but it now in effect, and I hope I am forgiven for using this expression, has the effect of diluting the strength of an allegation that would otherwise have been made and that is, therefore, an important matter and I agree with Mr Tyson that in that sense, as an allegation, it is beneficial to Dr Southall. As I say, whether the evidence actually supports the allegation remains to be seen, but I do not object to the amendment in the terms proposed by Mr Tyson. I hope that you understand therefore the reasons for my stance on that.
That is the first matter. The second matter concerns head 11, the stem. There are two matters here but I am going to deal with the first freestanding matter, which is the proposal, by way of application, that the word “cited” should appear between the word “such” and the word “original” in the stem. Again I do not object that, indeed, again, if my learned friend will permit me, it was at my suggestion that that word appears precisely there. The reason for it is that it focuses the Panel’s attention on precisely the particular medical records which is going to be the subject of inquiry in head 11. So it is beneficial to you, it is not prejudicial to the doctor, and indeed, as I said, we suggested it and Mr Tyson agrees. So that is not contentious but ultimately of course it is a matter for you.
I do have something to say about the other two matters, and that relates to head 11, where it is proposed that after the word “placed”, the phrase “by you or on your behalf” appears as a proposal and exactly the same formulation in 10(a) after the word “placed”, the same phrase, “by you or on your behalf”. Now I am concerned at the breadth of that term and so in its present form I do object to it. The proposal that I made originally, and I renew, is that there should be an amendment, both to 10(a) and to 11(a), in precisely the same parts, to insert the phrase “by you” simpliciter: “by you”. Or, alternatively, and again, I simply say this, I hope, to be helpful, it is entirely a matter for you whether you allow any of them, or the phrase “by you or at your direction”.
You may say to yourselves, “Well, what is the difference between the phrase ‘by you or on your behalf’, and, on the other hand, ‘by you or at your direction’?” There is, in our submission, a difference because it caters, my formulation, my proposal, caters for any possible instance which may emerge in the course of the evidence to deal with cases of misfiling. It may be thought that the phrase “by you or on your behalf” would catch as a proved head cases of misfiling simply because Dr Southall was the head of the department. So what I am suggesting here is that the formulation of these allegations must allow for a finding by you in due course, one way or the other, to allow for a finding that there may or may not have been this finding but in a way which does not actually mean that Dr Southall therefore bears responsibility for it per se, because, in those circumstances, it would be difficult for me or may be difficult for me to submit that such a misfiling may not have been by or on his behalf, in other words misfiling by a junior member of staff, secretary, research student, so forth.
Again, I hope you do not think this is dancing on a pinhead, not at all, it is, we suggest, a fair way of focussing the Panel’s attention on the proper focus of the allegations in this case. Certainly some amendment is required. That much I entirely agree with Mr Tyson. It has to be focused down in such a way as to place an allegation, right or wrong, at the feet of Dr Southall. We are arguing therefore about precise terminology. How that is done and how the principle with which Mr Tyson and I both agree, that some amendment is required, again is for you to decide, in a way which gives transparency to your findings, allows Dr Southall to know precisely what your findings are in relation to any particular head, and allows third parties to know also, and that is the reason for my proposal.
THE CHAIRMAN: The Legal Assessor has a question.
THE LEGAL ASSESSOR: Mr Coonan, in regard to your proposal relative to 10(a) and the stem of 11, adopting this secondary one, “by you or at your direction”, I suppose by putting it this way, this would mean that if there were a mistake by a member of staff or a member of staff acting through ignorance, this would not rebound on Dr Southall.
MR COONAN: Precisely so.
THE LEGAL ASSESSOR: If his system were such that in effect they are acting in accordance with the system set up by him, not by a mistake or by ignorance on their part, then that would rebound on him.
MR COONAN: Well it depends, as I understand it, my learned friend is going to or may,
I do not know, be submitting that system plays a part. It was with that in mind that my primary position was that there should be an allegation that it was done by him because systems can produce any set of facts by virtue of the system, but the thrust of this case, as we understand the case we have to meet, is that it was Dr Southall’s personal responsibility for filing these documents, not a responsibility arising out of, as I said before, a clerk, a junior research fellow, or anybody else who may have filed documents wrongly, contrary to Dr Southall’s intention. It would be quite wrong for findings to be made in those circumstances. I hope that meets the query, sir, you put to me directly and squarely.
THE LEGAL ASSESSOR: Yes, thank you.
MR TYSON: Precisely the area that the Legal Assessor has drawn to your attention, which is why I seek to have the wording that I asked for, which is “by you or on your behalf”, because that covers as it were system failure, bearing in mind it is our case that Dr Southall was responsible for setting up, managing and controlling the system. We will have to hear the evidence in answer to any of the particular matters in Appendix One whether the evidence is going to be, “My secretary got it wrong”, in which case I will then take the view, having heard the evidence, as to whether to pursue any particular item in the Appendix, but does not stop me from saying that the allegation that I want to pursue, and this is my application, and these are my heads which I have to prove, to include the words “by you or on your behalf”.
I accept that “on your behalf” is wider than the words that my learned friend wants, which is “at your direction”. At present, I wanted to prove this case in the widest sense in order to cover his responsibility of head of department, for the management and control of the filing within his department. As I say, within that, of course if the evidence comes out that it is simple clerical error, then of course I would not wish to say that if you accept that evidence,
I would not say, as I charge in relation to these matters, that that was inappropriate and an abuse of his professional position and the like, but the charge should remain, whether the evidence fits within the charge is a matter we will have to hear the evidence.
So I say he either placed it or matters were placed on his behalf there. That is against that test, I suggest, that you should judge the evidence and no narrower test. I readily accept that simple clerical error would not come into either my learned friend’s or my charge, but I want to prove this case on my heads.
THE CHAIRMAN: I will ask the Legal Assessor to advise the Panel on this application.
THE LEGAL ASSESSOR: Madam, your powers under rule 24 amount to this, that at this, or indeed any stage, you may permit the charge to be amended. The fundamental to it is that you must be satisfied that no injustice would be caused, injustice of course applies to both parties, both the complainants and to the doctor, and any such amendments may be made as appear to you to be necessary or desirable in your task in determining the issues here.
In regard to 10(a), tampering, and to the stem of 11, cited, there is no opposition to Mr Tyson’s application, Mr Coonan has helpfully expanded a little on what the overall position is but he takes no opposition to the proposal.
In regard to the rest of the proposal under 11, to the stem, the issue, as you have heard, is really a question of how it should be worded because it is not disputed that there should be some amendment. You have heard the two proposals and they really amount, you may think, to a question of the width or breadth of how the allegation would be put. The submissions of counsel have made the positions plain. You will also bear in mind what I might describe as Mr Tyson’s qualification, that depending on how the evidence would come out, if it were to indicate mere mistake by a member of staff, that he may well not pursue this position. You would doubtless wish to take that into account.
In essence this question, which is entirely for you, is whether or no there would be likely to be any injustice to the doctor. It is a question of the breadth of the allegation and of course eventually your decision would depend upon the evidence but you must focus now upon the specifics of the charge in the light of the proposed amendment. When I say proposed amendment, of course you have two contrary proposals before you. The task before you in effect is, first, to consider in regard to the unopposed matters whether you feel it would be appropriate to amend the charge but, second, the more substantial matter, is in regard to the two proposals as to amendment in regard to the stem of 11 and that is a matter entirely for you.
THE CHAIRMAN: Thank you. Do either of you have any comment on the legal advice?
MR COONAN: No, thank you, madam.
MR TYSON: No, madam.
THE CHAIRMAN: The Panel will go into private to consider your application.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE PANEL DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
DECISION
THE CHAIRMAN: I will now read the Panel’s determination.
Mr Tyson:
The Panel has considered your application made under the provisions of Rule 24(4) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct (Procedure) Rules Order of Council 1988.
Rule 24(4) states:
“Where at any stage of an inquiry it appears to the Committee that a charge should be amended, the Committee may, after hearing the parties and consulting the legal assessor, if they are satisfied that no injustice would be caused, make such amendments to the charge as appear necessary or desirable”.
You have applied for Head 10(a) and the stem of Head 11 to be amended by inserting the words “by you or on your behalf” after the word “placed”. You have also applied for the word “cited” to be inserted between “such” and “original” in the stem of Head 11 and in Head 11(a) to substitute the words “Damaged the integrity of” for “Amounted to tampering with”.
The Panel has taken into account your submissions and the submissions made in reply by
Mr Coonan on behalf of Dr Southall. It has noted that Mr Coonan has not opposed your proposed amendments to insert the word “cited” in the stem of Head 11 and to change Head 11(a) to read “Damaged the integrity of the child’s hospital medical records”.
In respect of the insertion of the words “by you or on your behalf” Mr Coonan agrees that some amendment is necessary. However he does not accept the phrase proposed by you.
Mr Coonan’s contention is that the amendment should be limited to the insertion of the words “by you” or alternatively, that the phrase should read “by you or at your direction”.
Having considered the submissions made, and in the light of the evidence that has been presented thus far, the Panel is satisfied that the amendments suggested by you are both necessary and desirable in order for these heads of charge to be clear and that they would not cause any injustice to either the complainants or Dr Southall.
MR TYSON: Madam, that is the case for the complainants.
THE CHAIRMAN: Mr Coonan?
MR COONAN: Madam, the first matter I would like to deal with is to make another admission in relation to the heads of charge as they are amended. Can I take you to 13(b) please. This admission which I now make in relation to 13(b) reflects the document which was handed in to you earlier. I therefore now make that admission in the terms therein set out.
THE CHAIRMAN: Thank you. I therefore have to announce that head of charge 13(b) is admitted and found proved.
MR COONAN: Thank you.
Madam, there is now a matter that I need to raise at this stage. I gave you as it were a slight indication of the territory by making reference yesterday to rule 27(1)(e)(i) and it is that that
I direct your attention to as forming the backdrop to what I have to say. The submission that I make here is directed towards head 17 and its linked Appendix Three. It concerns Mrs D. This submission is confined to Mrs D. For the purposes of considering the evidence, may I just give you the direct passages that bear on this question. It is Day 6/67A-69G and Day 7/9E-22D. I am not going to take you at length to that evidence. I am going to invite you, please, after having heard my submissions, to read those two precise citations so that you can make a judgement in the light of the submissions that I make. I adopt that approach simply to save time.
The submission that I make is based on well known principles of law which apply to these proceedings, and may you see, please, an extract from the practitioners’ book Archbold which may assist you, subject of course to any advice you may receive from the Legal Assessor, but you may find it helpful just to see what the position is in summary form. My learned friend already has a copy. (Document handed)
THE CHAIRMAN: This will be D10.
MR COONAN: The principle that I address is the principle which starts at paragraph 4-293, and the principle is encapsulated in the well known case of Galbraith. Perhaps I could read this to familiarise yourself with the concept.
“A submission of no case” – this is the submission I am making – “should be allowed when there is no evidence upon which, if the evidence adduced were accepted, a reasonable jury” – that is you – “properly directed, could convict. In such a case, a directed verdict must be taken from the jury.”
Then the citation from the judgment in Galbraith itself bears examination. The Court of Appeal said this, having reviewed the earlier authorities and guidance was given as to the proper approach to be adopted in the Crown Court:
“(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty – the judge will stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”
Then there is a comment by the learned editors of Archbold:
“The Lord Chief Justice [in Galbraith] then observed that borderline cases could be left to the discretion of the judge.”
They then cited an example in the case of Lesley. Over the page there is then cited, and
I draw particular attention to this authority, the case of Shippey. Mr Justice Turner in that case:
“…held that the requirement to take the prosecution evidence at its highest did not mean [and I draw your attention to the quotation] ‘picking out all the plums and leaving the duff behind’. The judge should assess the evidence and if the evidence of the witness upon whom the prosecution case depended was self-contradictory and out of reason and all common sense then such evidence was tenuous and suffered from inherent weakness. His Lordship [that is Mr Justice Turner] did not interpret Galbraith as meaning that if there are parts of the evidence which go to support the charge then that is enough to leave the matter to the jury, no matter what the state of the rest of the evidence is. It was, he said, necessary to make an assessment of the evidence as a whole and it was not simply a matter of the credibility of individual witnesses or of evidential inconsistencies between witnesses, although those matters may play a subordinate role.”
Then there is a passage which relates to committal proceedings which does not apply to you. Then the last paragraph beginning “As to the evidential value” again is not applicable to these proceedings.
So therefore at this stage the principle in Galbraith has to be interpreted in line with the decision of Mr Justice Turner in Shippey and applied to the particular facts of a case. I do stress that the decision reached is very case specific, very fact specific.
The principle in Shippey and that of Galbraith is applied up and down the land pretty well every day of the week and is now the accepted approach to the consideration of evidence at this stage of the proceedings.
So therefore, with that backdrop of the principles of law that you follow, could I come on therefore to what I say about the evidence in relation to Mrs D. I submit in broad terms that if the evidence stopped here, that no reasonable Fitness to Practise Panel, properly directed in accordance with the principles of the standard and burden of proof, could properly convict upon it. Secondly, in order to determine that principle, it is important to look at the whole of the relevant evidence. As I have already drawn attention to, in the case of Shippey, it is extremely important that, in exercising that approach, you do not simply pick out the plums and leave the duff behind. You have to look at the evidence as a whole.
What is the evidence which bears on this question in head 17 and Appendix Three? Mrs D was the sole witness to these events. There is no corroborative evidence by her partner. Her evidence is based on memory and impression which emerged, and this is now undisputed, ten years later for the first time at the earliest, it could be said on the state of the evidence. In other words, on the evidence the first time that she put pen to paper in terms of any detail of this matter was in 2004 when she made a witness statement, in November 2004. Is there, if one could put this rhetorically, cogent, safe evidence that these events of which complaint is now made were in fact etched on her memory as is contended?
You may care to consider the following forensic pointers: first of all, there is no evidence that any contemporaneous note or record was kept by her or anybody else of these events.
I draw a distinction for these purposes between that and the case of Mrs M. Mrs M, of course, you had, did you not, evidence received of a note by Dr Southall himself, a note written by Mrs Salem, an attendance note by the solicitor Mrs Parry, and a note written by
Dr Corfield. You do not have any of that in this case. Secondly, there is no evidence of any of what lawyers call, but you will understand immediately what I mean, of any recent complaint, that is to say no evidence that she, having experienced what she says now she experienced, then complained, as it is so that Mrs M did to the solicitor or to Dr Corfield. Indeed, when complaint was made to the GMC in 1997, there was no complaint about what is now said, and I encapsulate it in this way, to the corridor incident. She made a further complaint in 1999 to the GMC; not a word about what she now complains of at that stage.
MR TYSON: I hesitate to interrupt my learned friend, but there is no evidence before this Panel as to what she did or did not say in 1997 or what she did or did not say in 1999.
MR COONAN: Well, I do not accept that.
MR TYSON: It was not put to her, documents were not put to her. We are dealing with evidence. I have no recollection that what she did or did not say in 1997 or what she did or did not say in 1999 are matters before the Panel.
MR COONAN: I do not accept that. One has to look at the transcript. She accepted that the first time that any complaint about the corridor incident was made was in 2002 in the statutory declaration. She accepted that she had made complaints to the GMC in 1997 and 1999, did not contain any complaint at all about the matters of which she now complains. She accepted that there is indeed a reference to that in the statutory declaration. The main point is, as I have said, and I do not move from this position, that there was not a word about it in 1997 and 1999. Moreover, when she made a complaint to the Trust in 1999/2000, the precise date does not matter but the year-end date does, no complaint there about what she now complains about. The first time that there is any complaint about anything that happened in the corridor is contained in a statutory declaration made in July 2002, paragraph 97, which she read out, and it is on your transcripts.
You will remember that she described simply that Dr Southall had been “very abrupt”. She accepted that what she complained about in that statutory declaration, made eight years after these events, was “very different than the complaint which she now makes”. The first time therefore that there could realistically be any evidence that she was making a complaint about the matters which she now describes to you must have been sometime after 2002. You know that she made a witness statement in November 2004.
I think I am permitted to make the observation, and I hope not extravagantly, but the account has grown over time. She points to the fact that there is or may be an explanation for her partner not witnessing these events. That explanation, and I refer to the nurse aside leading to a coffee for the partner, appears for the very first time in evidence before you. There is no reference to this incident, seeking to explain in effect why it may be that the partner did not witness this, no reference to that in the statutory declaration, and, she accepted, no reference in her witness statement in November 2004, and that fortifies and supports the proposition that this is so recent that the first time it appears in any document that has been disclosed to us is in evidence she gives to you.
Now, of course, you know that these events occurred in 1994, whatever may have been those events. That is, on any view of the matter, a long time ago, twelve years ago. This submission that I am making to you is not simply based on the fact of delay, because, and
I recognise three factors, in a case where you simply have the fact of delay there is obviously no statute of limitations in the criminal law (that is trite law), and ultimately in such a case it may be for a jury to attach such weight to that set of circumstances as appears proper, and, moreover, to have regard to the question of prejudice to the defendant in a criminal case, or the doctor here, that might arise simply because of a later complaint. All those factors one recognises, and could, in many cases, be dealt with as part of the rubric, if you like, of trial management by the judge.
Here the situation is different, because it is not just a question of a late complaint being made, and the lateness of the complaint we now know must have been after 2002, but it is the fact, coupled with that, that she made a complaint in 2002 which was in effect false by omission; in other words, very different both in quality and nature from what it is she is now telling you. She of course advances before you a reason for why she did not set out in her statutory declaration the nature of the complaint that she now makes.
I invite you at this stage, carrying out the Galbraith/Shippey function, to consider this: although there were complaints about Dr Southall in that statutory declaration, nobody disputes there was not, she was sufficiently focused even then to describe Dr Southall’s conduct as being very abrupt, but, as she now concedes, very abrupt, yes, on the one hand, but how it has elaborated to the present. Equally, it cannot be the case that the explanation that is now put forward for not mentioning these matters in 2002, or at any time before that, is because of fear, or shame. If I can pause there, obviously in many cases where there is delay one can begin to explain why there is such a delay, particularly in sexual assault cases and so forth, but that does not apply here. There are no suggestions that that was in play. This witness, Mrs D, in effect made a deliberate decision to describe Dr Southall’s conduct in the terms she did in 2002.
Leaving aside her evidence, you have also to consider, do you not, the question of fairness to Dr Southall? There must be, on any view, potential prejudice to him on the basis that notification of this allegation could only have come after 2002, but even then if he had had notification shortly after 2002 it would have been limited to “very abrupt”, hence you might now understand the relevance of the admission my learned friend made earlier this morning. The witness statement that she made to the GMC of 20 November 2004 was only served on Dr Southall’s solicitors in July 2005. It therefore follows that he is being placed, and this is on the basis of the evidence as it stands at the moment, he is being asked to deal with an allegation, of the detail and nature wherein she has described to you, about eleven years after it occurred.
You are entitled to ask yourselves this question, on the one hand to say to yourselves, “Well, of course, he can come and deny it”, and of course he can, but the question is what is the state of the evidence as it stands at the moment? Where might that leave Dr Southall in attempting to defend himself? Putting it again very starkly, how is he able to go to the group of doctors that he was with in 1994 in a corridor, assuming he was there, which I do for the purposes of this argument, and say to any one or other of them, or one of the nurses, “Do you remember how I spoke to that patient on 15 December 1994?” They would look at him blankly, would they not?
The further matter for your consideration, and I simply raise it as a possibility, there is a risk of contamination. Mrs M had signed up, if I can use that expression, Mrs Mellor as her advocate by 10 January 2000, and we know that, it is in Mrs M’s own writing at D1. You also know from Mrs D’s evidence that Mrs Mellor was, as it were, on board I think was the expression I used when I cross-examined her before she made her statement to the GMC in November 2004. That is a fact and it is a factor for you to take into account when considering whether it may be safe, whether it may be tenuous within the principles set out in Galbraith and Shippey.
You are also entitled, in our submission, to take into account the fact that on the evidence Mrs D’s view of Dr Southall may well have been – and this is my expression, but I hope it is, again, not an exaggeration – somewhat baleful.
MR SIMANOWITZ: I am sorry, somewhat ---?
MR COONAN: Baleful. She referred in the course of her evidence in the transcript to, on a later occasion, coming across Dr Southall and another doctor laughing and she was clearly upset by that – not on this occasion, but much later. She has brought a legal action against the Trust; she was certainly contemplating legal action against Dr Southall in respect of other matters. The real issue for you is you have to make a judgement, putting all these factors together under the umbrella of the lapse of time before this complaint ever emerges, and determine whether or not – not taking the plums and leaving the duff, but looking at it altogether, looking at the complainant’s case at its highest – this is evidence that is fit or would be fit to go before a jury. In other words, fit for you to decide that it should go any more before you. In considering that question you have, even at this stage, to apply the burden and standard of proof, the criminal burden and standard of proof.
Madam, those are the submissions I want to make. You will be conscious of the fact, as I said right at the beginning of these short submissions, that I was not going to take you to specific passages in the transcript. I reiterate that I invite you to do that, each of you, at your leisure. If I do that I may be guilty of taking plums from the duff and I do not want to be considered to be guilty of doing that.
Thank you very much.
MR TYSON: May I ask my learned friend for some elucidation? When we had informal discussions about this matter he indicated, amongst other things, that he was going to submit on heads 17(b) and ©. Am I to understand that in fact he has expanded what he has told me informally and that it is now the whole of head 17 in relation to this witness?
MR COONAN: I am sorry, there appears to be some misunderstanding. I said head 17 and
I intended that to cover the whole of head 17.
MR TYSON: I do not want to intrude on private discussions. I now realise, which I did not realise before, that I am faced with the whole of head 17 in relation to this witness.
Madam, as far as the law goes what my learned friend says about Galbraith and Shippey
I cannot dispute, because it is there in Archbold at paragraphs 4-293 to 4-295 to which you have been referred, but I need to make some observations on that aspect of the law because there is a slight difference, you may think, between the way it is put in the Rules and in the principles set out in Archbold at paragraph 4-293. Can I take you to paragraph 21(e) of the Rules, and it is of course the 1988 Rules.
THE LEGAL ASSESSOR: Paragraph 27(1)(e), not 21.
MR TYSON: Paragraph 27. I have a problem with numbers today. Paragraph 27(1)(e)(i):
“At the close of the case against him the practitioner may make either or both of the following submissions, namely:-
(i) in respect of all or any of the facts alleged and not admitted in the charge or charges, that no sufficient evidence has been adduced …”.
I rely on the words “no sufficient evidence has been adduced.” Bearing those words in mind, can you go to the principle set out in Archbold at 429-3, where it is said:
“A submission of no case should be allowed when there is no evidence”,
and note the difference between “no evidence” and “no sufficient evidence”,
“upon which, if the evidence adduced were accepted, a reasonable jury, properly directed, could convict.”
My submission to you, my global submission to you on the point, is that the rule 27(1)(e)(i) test presents a higher hurdle for the doctor to surmount in these submissions than the “no evidence” hurdle set out in the principle at 429-3. That is a simple submission on law on which your learned Legal Assessor will doubtless advise you.
The other thing I need to say is about Shippey. We are familiar with Shippey because every doctor who makes submissions makes great play on Shippey, just like every defendant who makes submissions in the Crown Court. The important thing about Shippey is that you should only go down the Shippey line if you consider that the evidence upon which the prosecution case depended (and this is about the fourth line down) was self-contradictory, out of reason and all common sense. You may have a number of views about Mrs D, none of which, in my respectful submission, are permissible at this stage. Those three descriptions do not describe her evidence.
The other important thing about Galbraith, and indeed the approach to submissions that you should make, is that I rely on the second limb of Galbraith, which is (b), which, just to remind you, states:
“Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”
That is a very, very important statement, because here the complainants are relying, and in fact Mrs D is a complainant herself … The entirety of the head of charge 17 relating to her depends on the view taken of her reliability. Witness reliability is not, I repeat, not an issue to be taken at this stage. Witness reliability is a matter for you not wearing your judge hat, which you are wearing at the moment, but your jury hat when you are considering the matter at stage one.
It is very important that you realise you have two functions here. You are at the moment sitting, as it were, as a judge, and deciding in your judge hat: Is there sufficient evidence to be left, or not, to you, in your jury hat later when you are making your findings of fact? At the moment, wearing your judge’s hat, you are not permitted under the second limb of Galbraith, as I say, to take a view on the witness’s reliability or other matters which are, generally speaking, the province of a jury, because that is you in your later hat. All I have to establish is that on one possible view of the facts there is evidence. If I can get over that minimal hurdle:
“… where on one possible view of the facts there is evidence upon which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”
My submission on Galbraith is that all I have to show to you is that there is one possible view of the facts, there is evidence. Whether or not you accept that evidence now is irrelevant. Whether or not you think the witness is reliable is irrelevant. What is relevant at this stage to see whether the doctor has a case to answer is whether, on one possible view of the facts, there is evidence in support of head of charge 17. The quality of the evidence is a matter you consider at a later stage when you are in your fact-finding jury hat. All you have to consider at the moment, wearing your judge hat, is whether there is evidence in support of head of charge 17.
I cannot emphasise that too strongly because you do have complicated and different functions, bearing in mind that you are both the judges of the law and judges of the facts as a Fitness to Practise Panel. There are some times – and this is one of them – where you have to separate out your functions. You are not at this stage in a fact-finding role. You are at this stage in your judicial role and in your judicial role all you have to determine is whether, on one possible view of the facts, there is evidence upon which a jury could come to the conclusion that he is guilty. In those circumstances, provided there is some evidence, then you should properly allow the matter to be heard by you at the later stage.
The other important issue of law is that my learned friend has come up with – by the back door, if I can put it this way – an abuse argument. If he were to allege that no fair trial can be heard on head of charge 17 because it is prejudicial to the doctor, because it is so old and he has only heard about it later and he cannot get witnesses, that is not, I repeat, not a matter for you to consider at this stage. He has not made an application to strike out this matter on the grounds of abuse of process. Wholly different considerations apply to abuse of process applications which are made at the beginning of a case, to strike them out. My learned friend has made his application, as he said it clearly, under rule 27(e)(1), which is not the abuse ground, and to try and bring in an abuse argument, prejudice, fair trial, Article 6 and the like, is impermissible on an application for no case or submission of no case to answer.
You are not under the principles of Galbraith, Shippey or any other, to consider prejudice. You are not, under Galbraith or the other, to consider prejudice. All you are to consider under Galbraith is: Is there, on one possible view of the facts, evidence upon which you can find head of charge 17 proved? Dismiss entirely from your considerations any of the abuse of process arguments which my learned friend has sought to get in through the back door. His application is under rule 27 and under rule 27 matters of consequences of difficulties for the doctor to get any rebuttal evidence, or the like, are irrelevant matters not to be taken into account. All you have to consider under rule 27 is whether sufficient evidence (or insufficient evidence) has been adduced upon which the Panel could find these matters proved.
I am going to go to the facts, but I do not know whether this might be a convenient time to stop, having dealt with the important aspects of law.
THE CHAIRMAN: I think it may be that it would be a good idea to break now. It is clear that you have more to say and I think it would be appropriate to take the lunch break now. It is about five past one on my watch. Can we be back at about five past two? Thank you.
(Luncheon Adjournment)
MR TYSON: Madam, as I said earlier, and I want to emphasise, I trust that your learned Legal Assessor will give you advice upon this matter, your task is to look at the evidence now in support of heads of charge 17 and not – I repeat: not – any difficulties in rebutting that evidence, which is a matter either for an Article 6 abuse argument at the beginning or a matter which my learned friend could pray in aid in closing but it is not a matter to be dealt with at this stage.
Again going to the pages that my learned friend gave you, he did not go as far as he could have done, and should have gone up to and beyond page 27 on Day 7. 27 contains an important exchange between you, madam, and the witness, where you elicited from the witness both plums and duff, as far as I am concerned, in that you elicited one matter which
I will take you to from the witness which makes my case on 17© rather difficult but it helps me more on 17(b) but I will take you to that. May I say, in the interests of fairness, you should go beyond the reading that my learned friend gave you.
Can we first look at the heads of charge together, that it is said that there is no sufficient evidence in support of. Paragraph 17 says:
“In the cases set out in Appendix 3 you failed to treat [and this is an important word, ‘you failed to treat’ I ask you to emphasise that] the respective children’s mothers in the ways set out below, or any of them,
“a. Politely and considerately’
“b. In a way they could understand, [and]
“c. Respecting their privacy and dignity”.
Then we go over to Appendix Three in relation to Mrs D and you see that the matters are particularised there. The matters particularised under there are: a raised voice; dismissive manner; walking away; not giving mother any opportunity to ask questions. Those are the allegations, the specific allegations, in support of the global submission that is made at head of charge 17.
At the risk of being accused of taking you plums and duff, I am going to ask you to focus on some matters because the evidence that you have got to look and constantly remind yourselves is: is there evidence upon which a jury properly come to the conclusion the defendant was guilty? Or, to put it another way: is there evidence upon which a Panel could properly come to the finding that this head of charge is found proved? I take you please, first, to Day 6 when asked questions in chief by me. Could I take you to page 68? We pick it up at B:
“[Q] Can you take it slowly because a note will have to be taken of this.
[A] I believe that Professor Southall stated that everything was normal. I questioned this, especially with my son having the reaction that he had had the night before, and I questioned Professor Southall that how could it be normal with alarms going off, and what was happening to my son. Professor Southall became quite angry and said that there is no such thing as delayed reactions”.
Again, looking at the allegation here, the allegation at 17, is politeness and consideration, amongst other things, and, in my respectful submission, it is impolite for a consultant to become angry with a mother of a child patient.
“[Q] He said?
[A] ‘There is no such thing as delayed reactions’.
[Q] Yes.
[A] The way he spoke to me, I just felt very, very sick in my stomach, and I just felt that he was stopping me from asking any more questions by the tone and the anger in his voice [again that, you may think, goes to 17(a)]. At the time I did not understand why he was so angry with me, [that, you may think, goes to 17(b)] but in hindsight I believe it was because I was asking questions, and Professor Southall later went on to accuse me of exaggerating my son’s [symptoms], and I believe that he did not want me to raise questions that things were not okay the night before, or indeed the three nights of the recordings.
Again, in my submission, it is impolite to accuse you of exaggerating your son’s problems.
If I can take it on to F:
“[Q] You told the Panel that he became angry and you felt sick because of the tone and anger in his voice. At what part of this conversation did he become angry, and what were the words that you thought were particularly anger making words?
[A] When he said everything was normal, that was a calm voice, and I believe, and, as I said, I may have got things not in the correct order, but I believe now that, looking back and getting my head round that day, that I believe it was when I questioned Professor Southall that he became very angry and said there was no such thing as delayed reaction. It was the anger that I just could not understand at the time.
[Q] When he said, “There is no such thing as delayed reaction”, how was his voice in terms of volume?
[A] It was quite loud, louder than he had been speaking, but it was more the anger I think.
[Q] Were you given the opportunity to ask questions?
[A] I felt so sick, and also with Professor Southall sort of like raising and turning away, I was too frightened to ask any more questions, or to raise the issue of how my son had been those three nights.
[Q] You say he turned away. Did he turn away in the course of this conversation?
[A] Yes, I believe he did, because I think that was a sign, that, no, you know, I cannot ask him any more questions.
[Q] Did he make any gestures at all that you can recall?
[A] I believe that he just put his hand up and he said that there is no such thing as delayed reaction, it was as if, like, dismissive of me”.
Again, pausing there, you may think, and I would say, that that is evidence of being impolite and inconsiderate when he is being dismissive.
“[Q] You are showing, for the sake of the transcript, a raising of the right hand.
[A] That is what I remember. As this all happened so long ago there are some things that you do forget, but there are also things that are imprinted in my memory”.
You will recall that she uses the word “imprinted” a number of times. Again matters that you think were imprinted, you may well think at this stage, that that is evidence upon which you can properly come to the conclusion at this stage that there is evidence on this head of charge so much to leave it to you at a later stage.
“As this all happened so long ago there are some things that you do forget, but there are also things that are imprinted in my memory and you do not forget. If I can give another example, at the case conference in the room, prior to discussions ---
and I took her away from the case conference.
“[Q] We are talking about an incident now nearly twelve years ago. What are the aspects of this conversation that are really imprinted in your memory?
[A] Because of the sickness that I felt at the time.
[Q] What are the aspects about what he said or did that is imprinted in your memory?
[A] Because he had said that everything was normal and it clearly was not, and that made me feel, well, how can my son be helped if the doctor was denying what was seen in his own hospital and that other doctors had seen as well. I was worried for the safety of my son, because I had gone there thinking that Professor Southall would be able to help, which is the impression that he gave.
[Q] Is the phrase you told the Panel of ‘There is no such thing as delayed reaction’, is that imprinted in your memory?
[A] That is, because of the way it was said and the anger at the time.
[Q] Is his raised voice imprinted in your memory?
[A] Yes, it is.
[Q] Is his raised hand and walking away imprinted in your memory?
[A] The raised hand, it could be that he just turned away, I could not be certain that he walked or he just moved one step, but it was a turning as he waved his hand, and that is in my memory.
[Q] You say that you had gone to Professor Southall to see about whether your child could have a monitor. Was there any discussion, or did you have any opportunity to discuss whether your child could have a monitor?
[A] I just got the impression, because he had said everything was normal – I was not given the opportunity to ask him questions”.
Again, you may think, that is evidence of the impolite and inconsiderate in not giving a person who had arrived there on their own volition, you remember this was a complainant, who, as it were, got her GP to refer her to Professor Southall, as he then was. It is not one of these cases where this patient had been or the mother had been referred on because there were any suspicions of abuse on the night. She had used the monitor and she got her GP to send her off to see if the monitor was appropriate.
Just at the bottom of page 69:
“I just got the impression, because he had said everything was normal – I was not given the opportunity to ask him questions, but I just accepted that he obviously was not going to suggest a monitor, but because he had suggested Professor Warner I felt that there was some hope and some light because maybe Professor Warner could help.”
Madam, those, in my submission, are the relevant questions dealing with this issue in chief.
In cross examination, can I take to you the next day please, at Day 7, and take you to passages on pages 12, 13 and 16. On page 12, at B, this goes to 17(b), she was asked by Mr Coonan:
“[Q] But you must have been disappointed that you were not getting a monitor and that Dr Southall had not, at that stage, provided a solution to the problem.
[A] I believe that I accepted that he was not going to give a monitor, and I felt that he did not understand my son’s problems, because he was not an allergist and I felt that at least he was referring me to somebody who may be able to help.
[Q] So you felt that he did not understand your son’s problems.
[A] Because he said that everything was normal.”
Then at the bottom, between F and G:
“[Q] But I do want to come to the area about which there is dispute. You told the Panel yesterday that Dr Southall said these things, and in particular when he said there was no such thing as a delayed reaction, with an angry voice.
[A] He did raise his voice.
[Q] Let us look at that. He raised his voice. Yesterday you described it as representing anger.
[A] A raised voice with an angry tone.
[Q] How often had you had to experience how Dr Southall talks?
[A] I had only seen him on the one occasion prior to that and he had not raised his voice [at that time]”.
Picking it up again at D:
“Were other parents or members of the public present?
[A] I did not see anybody. It seemed quite quiet in the corridor.
[Q] I just want to examine this. You are saying that because of a raised voice, which you had not experienced when you met him the first time, and the tone of that voice, you concluded, and concluded at that time that he was angry. Is that right?
[A] I felt sick at the way Professor Southall spoke to me and I can only remember that as being when somebody speaks angrily at you.
[Q] Not sick because you had received disappointing news?
[A] No, because at that time I was not aware that we were not going home with the monitor. As I explained before, I was actually happier that Professor Southall was referring my son to somebody that could sort out the problem rather than the need for the monitor.
[Q] Let me come straight to the point. I am going to suggest to you that Dr Southall was not angry, he did not raise his voice and he was not dismissive.
[A] That is incorrect.”
Then we pick it up at page 16, under “Mr Coonan”:
“Maybe, but I am suggesting to you that this is the first time that this appeared in any document that I have seen.
[A] It may have done, but I still feel that because of the time lapse there are things that I cannot remember about that day, but I do remember how Professor Southall spoke to me because it left a lasting memory.”
Pausing there, madam, you will see, and you will have the opportunity to read the whole transcript, and I am not stopping you doing that, in fact I even encourage you, as my learned friend did, but throughout it she is clear about what she can remember and what she cannot remember. You may think that that is an essentially reliable witness saying that, albeit, as
I have to say, as the second limb in Galbraith keeps reminding one, if the prosecution evidence is such that its strength or weakness depends on the view taken of a witness’s reliability, that is a jury question rather than a judge question.
“[A] It may have done, but I still feel that because of the time lapse there are things that I cannot remember about that day, but I do remember how Professor Southall spoke to me because it left a lasting memory.
[Q] A lasting memory?
[A] Yes.
[Q] Okay.
[A] One that I would hope to forget, but I cannot.”
In re-examination, we go to page 23 and we pick it up at 23G:
“[Q] It was suggested to you that your account is one of exaggeration. Have you exaggerated to the Panel that Professor Southall raised his voice?
[A] I have not exaggerated, because to exaggerate I feel is very similar to lying and I have sworn on oath not to lie, or to tell the whole truth as far as I can recall.
[Q] Did you exaggerate to the Panel that he turned round to go with his hand being raised?
[A] That is my recollection and I do not believe that I have exaggerated.
[Q] Did you exaggerate when you told the Panel that you had no time to ask questions about the monitor?
[A] That is correct, I felt that I was not able to ask any more questions, other than asking what was happening to my son the night before when the doctor was called.
I believe that that is the only question that I was able to ask.
[Q] Did you exaggerate to the Panel when you described the tone of the way that you were being addressed in the middle of that conversation by Professor Southall?
[A] I do not believe I did, because I felt that it was such a tone that that is why it has stayed in my memory.”
Then we come to important questions on pages 27 and 28 by you, Madam Chairman. It is quite clear from the focus of your questions, madam, that you had head of charge 17(a), (b) and © firmly in your mind. We pick it up at 27B:
“[THE CHAIRMAN]: I have a couple of questions that relate to the corridor incident, if I can put it that way. You told us about the nature of the conversation. Did you have any difficulty in understanding what Professor Southall was telling you in that intervention?
[A] I was quite surprised that Professor Southall said everything was normal, and I was obviously confused because to me things were not normal. The alarms were going off and my son was obviously unwell. That is why I could not understand why he said everything was normal.
[Q] So you understood what he was saying, but you did not understand the implications. Is that a fair way of putting it?
[A] I could not understand how he could say everything was normal.
[Q] You did not understand how he could say that?
[A] That is right, because to my belief that is why I was there with my son in the first place, because everything was not normal.
[Q] If you understand the difference then, you understood his words and what he appeared to be saying from his side, but it was the implications that flowed from that that raised more questions in your mind.
[A] The questions flowed from when he said everything was normal, because he then did not clarify what was happening to my son to say this was normal because of this. He gave no clarification whatsoever for just saying everything was normal. When I spoke to him for clarification, that was when I believe he became angry and I was not able to ask any more questions.
[Q] To the best of your recollection did you ask a question saying what he meant by “normal”?
[A] No, I do not believe I did use that phrase. I believe I said what was happening to my son last night if everything was normal.
[Q] Did you get an answer to that question?
[A] No.
[Q] What happened at that point?
[A] I believe that is when Professor Southall became angry.
[Q] What did he do then from your recollection?
[A] From my recollection I may have said, “What was happening to my son? Was it a delayed reaction?” I do not know. I may have done but I do not recall that, but then Professor Southall said that there is no such thing as delayed reactions in an angry tone and I felt he was dismissing me from asking any more questions.”
Then there is the important evidence that my client gave at page 28 between C and D which
I have to deal with:
“[Q] It has not formed part of your evidence or complaint but it is in fact mentioned in a head of charge about respecting privacy. Was the fact that whatever was said in the corridor, was this an issue that you felt was to do with privacy, or was it simply the tone of his voice?
[A] I think it was simply the tone and how he spoke to me.
[Q] So you were not concerned that confidential matters were being spoken about in the corridor.
[A] No, because from my recollection I do not remember seeing anybody else other than the people on the ward round.
[Q] So that was not an issue?
[A] No, and from my recollection the playroom was very quiet as well. From my recollection we were the only people in there at that time.”
So, madam, you may think, and I would encourage you to think, that not only is there some evidence upon which you could find the facts proved, but there is an enormous amount of evidence in which you can find the individual items set out in Appendix Three – raised voice, dismissive manner, walking away, not giving the mother any opportunity to ask questions – there is ample evidence in the matters that I have read out in support of each and every one of those particularised allegations.
As to the description of those set out in head of charge 17, dealing with the question of “politely and considerately”, in my submission there is ample evidence that by raising his hand, walking away and speaking in a raised voice he was not behaving either politely or considerately.
The question about “in a way that they could not understand”, there are two aspects, two ways, that you can look at that. First is the way that I would ask you to look at it, in the way approached by you, Madam Chairman, and that is this, that it is not that she could not understand the words that he was saying, what she could not understand, the two things, first of all the tone in which he was saying them, the manner in which he was saying them, the manner being such that made her feel seek in the stomach, or whatever, and, secondly, what she could not understand was how was he saying and why was he saying that her child was normal when there had been an incident the night before, when the child went down to extremely low levels on the monitor, which we have seen when we looked at the nursing notes, which called a registrar to have to see the child, and, as she says, alarm bells were going off all the time. She could not understand why it was that Professor Southall was saying to her that everything was normal. So I put that in two ways: it is not the physical understanding of the words (she is intelligent and she can understand the words and so on), she could not understand the tone nor could she understand the premise. She could not understand the tone that he was using, which was angry and dismissive; she could not understand the premise that everything was normal when to her it clearly was not normal.
As far as respecting privacy and dignity is concerned, madam, in view of the answers that this witness gave specifically to you when asked about that aspect, I would have difficulty, and
I realistically face up to that, in keeping head of charge © in respect of Patient D. So in respect of Patient D I would say that all the items in Appendix Three should remain and the descriptions of those should be, perhaps fairly, characterised under 17(a) and 17(b), but I have difficulty, in view of the comments, attaching 17© to the particularised matters in Appendix Three.
Can I deal with one or two matters that my learned friend raised. He made a point about this being, as it were, a recent invention, and what I say about this is exactly what the witness said about it. In particular, she spoke about this at length in Day 7, between pages 19 and 20, that her prime concern and the prime focus of her complaint was matters relating to Dr Southall’s care of her child and the consequences of that care. I think those are matters which this Panel is not being asked to look at, but that was the main focus of her complaint. When asked to particularise on one aspect that she mentioned in her statutory declaration, she did particularise it and go into more detail in her witness statement some two years later. It is not that this is a matter of recent investigation and greater exaggeration, it is a matter that to her, in the global scheme of things, when she was worried about her son and she was being dealt with, did not appear to her in that context to be of enormous importance, but when asked about it she was able to give the appropriate details.
It is not, we would submit, a recent account, it is just a recently particularised account, and, as I say, she had good reason to only recently have to particularise it because she was asked to do so in the context of this particular case.
Again, her motivation, in view of the fact that she had at one time I think taken a legal action against the Trust, I remind you about that, but I do know that she did not take action against Dr Southall personally in that, and her motivation, as you can see, is that she is a concerned mother wanting to do the best for her son, and the suing would be in relation to the treatment of the son, not of the treatment of her in the corridor that night.
As far as the “polluted by Mrs Mellor” argument, there is absolutely nothing in that, you may think. There is no evidence that these two women have ever met or communicated in any way. My learned friend sort of touched on that in a way trying to muddy the waters, but you have to deal with this case on the evidence, and is there evidence (a) that either of these women in question got in any serious contact with each other, or, more seriously, is there any evidence that the witnesses in question ever talked to each other about these matters at all? Forget all that.
Evidence as to whether her account is supported or otherwise by her ex-partner, again that is not a matter which you have to consider here provided you are satisfied that there is evidence upon which you could find these facts proved. That is all the test is at this stage. You do not have to go into the question, provided, and I accept, as it were, the Shippey take on the matter, you can look at evidence and say “This is not good enough”, and if you think the evidence of Mrs D is so contradictory, out of reason and/or common sense, to that extent you can take it into account, but on-one, in my respectful submission, who has heard that this woman could characterise her evidence with any of those descriptions.
My learned friend said rightly that his client has rights in these matters, but so of course does the complainant. The complainant has brought a serious allegation by the doctor, and she has a right, providing the evidence is not so tenuous that it is self-contradictory, out or reason and/or common sense, she has a right to have that complaint heard and determined, and it is in the public interest, and that is a big matter in your function, that serious complaints made by doctors are heard and determined on the evidence. So the public will know, in your public duties, whether this is a nonsensical allegation or a serious allegation.
Provided there is sufficient evidence that we have shown a prima facie case, to use old-fashioned language, that there is a case to answer, in my respectful submission the evidence shows there is a case to answer; how you in fact determine it on the evidence, those are matters for you at the end of the day but not at this stage. For all those reasons I would urge you to reject my learned friend’s submission.
THE CHAIRMAN: Mr Coonan.
MR COONAN: Madam, I think I can keep my reply short. There is one matter of fact which I need to correct my learned friend on, where he asserted not a moment or two ago that there was no evidence that Mrs Mellor and Mrs D had ever met. Could I direct you, please, to
Day 7/21 and you will see the evidence to the contrary. You should read the whole of those exchanges because, of course, all I am dealing with is the fact of contact. What you make of that is entirely a matter for you, but it is a matter which I simply seek to correct my learned friend on.
Can I go to perhaps more substantial matters. The public interest point alluded to by my learned friend of course is an important factor, but it also applies whenever the case of Galbraith is applied in a criminal case. The public interest argument does no damage, nor should it, to the operation and the proper operation of Galbraith. Nobody has suggested, save in one respect, that Galbraith with the gloss provided by Shippey should not apply in these proceedings. The exception, however, concerns the first point my learned friend made in his submissions to you. He sought to argue that there was a higher hurdle for the defence to overcome than Galbraith, which is represented by rule 27(1)(e)(i). May I say straightaway that we do not accept that proposition of law. What is set out in 27(1)(e)(i) in effect is an expression of the principle of law articulated in Galbraith and does not move it.
The second matter I want to draw your attention to is this, that when you look at the second limb of Galbraith, which is important, we are both agreed on that, when you look at the second limb it is very important not to construe it as if it were a statute, because if that were right, there would have been no need for the gloss on it supplied by Shippey. That is why it is important to read the principles in Galbraith and apply them in the context, in a fact specific way, to the operation which you see outlined in Shippey. So it is somewhat artificial simply to say at this stage, “Apply a judicial hat without any regard to aspects of the evidence”. Of course, you must look at the evidence, and, as judges at this stage, you take a view, but a permissible view. The permissible view is the one which is bounded by the principles in Galbraith and Shippey together.
So much for the law, and your learned Legal Assessor will of course give you proper guidance on that. I make two comments about the facts because having invited you to look at the evidence given by Mrs D – she is the only witness on this issue – I repeat that invitation. I just make two observations. The first is that her statutory declaration in 2002 was indeed to set out her complaint to the General Medical Council about this doctor and the high point of that complaint was that he had been very abrupt, full stop. That does not support the particulars of this allegation set out in Appendix Three.
The second observation I make – and it is really a query which I invite you to consider – is whether 17(b), even if you accept the evidence for the purposes of this stage, really adds anything to head 17(a). I do not develop these submissions in any strong way. I invite you to think about that, or whether in fact 17(a) is the real gravamen of the allegation.
Madam, those are the submissions I make.
(The Chairman and the Legal Assessor conferred)
THE CHAIRMAN: It has been suggested that perhaps the right order of things would be for the Panel to do the reading first and receive the legal advice after that. Do you have any view? I think the Legal Assessor would in any case like a few minutes to prepare his advice.
MR TYSON: Madam, I have got no observations on that, save that of course whilst you are reading the Legal Assessor is not able to give you any advice. Secondly, I make a specific request to the Legal Assessor that he covers in his legal advice whether and to what extent it is permissible to bring in abuse arguments at this stage. Other than that I have no objection, whichever way round it is.
THE CHAIRMAN: Mr Coonan?
MR COONAN: I think it is a sensible suggestion for you to read it before the learned Legal Assessor gives his advice.
THE CHAIRMAN: It seems to be fairly agreed that that is the way round we should do it, so we will adjourn from public session for the time being while the Panel reads the sections of the transcript which have been pointed out to us. Just to be quite clear on this, my understanding is it is Day 6 from 67A to 69G and Day 7/9E through to page 27?
MR TYSON: Page 28.
THE CHAIRMAN: Page 28.
MR TYSON: My learned friend invited you to stop at page 24, but I say 28, because there is stuff useful for him on page 28.
THE CHAIRMAN: That then covers what both of you have suggested we should read and we will call you back then when we have completed the reading and the Legal Assessor is ready to give his advice.
MR COONAN: Thank you.
MR TYSON: Perhaps I should point out that you should not be deliberating until you have been given the legal advice. You can be reading, but not deliberating.
THE CHAIRMAN: We will not deliberate. We will undertake not to speak to each other about this matter at all.
(The Panel adjourned to read documents)
THE CHAIRMAN: The Panel has now completed the reading, but just a tiny point. When reading it we noticed that there was an error in the transcript where what should obviously be Child D is actually written as Child H. I spotted that. Whether that should be corrected, whether that is a matter for the shorthand writer ---
MR TYSON: Perhaps for the benefit of tonight’s transcript it ought to be identified.
THE CHAIRMAN: It is on Day 7/18D, the paragraph that begins, “Chris and I saw Professor Southall…”. There are two mentions there of Child H and it should be Child D.
MR TYSON: Was it my fault?
THE CHAIRMAN: I have no idea how it arose. Other than that, the Panel have no questions arising from the reading, so we will call on the Legal Assessor to give his legal advice. (Copies handed to the Panel and counsel)
THE LEGAL ASSESSOR: Mr Coonan makes this submission under Rule 27(1)(e). He contends that in relation to the facts alleged in head of charge 17 insufficient evidence has been adduced upon which the Panel could find those facts proved. Mr Tyson concedes that in the light of the evidence, allegation 17© cannot be sustained. The Panel is therefore concerned only with head of charge 17(a) and (b).
It is for the Panel members, who are the judges of the facts and also of the law, to decide this issue.
It is customary for the Panel to consider such a submission in the light of the well-known authorities of Galbraith and Shippey, to which it has been referred. Mr Tyson submits that the use of the phrase in Rule 27(1)(e) “no sufficient evidence” presents the doctor with a higher hurdle to clear than would be the case under the criminal law. It is of course for the Panel to decide what is the correct approach, but I advise that as is the practice at a Fitness to Practice hearing, the Panel should approach this matter on the basis of the Galbraith test.
In reaching their decision, the Panel members must take the evidence currently before them at its highest, remembering that in respect of each allegation they must be satisfied so that they feel sure that on the evidence thus far the facts could be proved. The burden of proof rests upon the complainants. The Panel should look at the evidence thus far adduced as a whole, not merely that which supports the complainants’ case. In short, when taking the evidence at its highest, the Panel must not, to adopt a well-known judicial comment, just take the plums and leave the duff behind.
It follows that if in regard to an allegation there is no evidence capable of so satisfying the Panel, then the submission succeeds. If, however, there is evidence upon which an allegation could be made out, for example where it is such that it depends upon the view to be taken of a witness’s reliability, then the submission does not succeed. Of course, if the Panel members, as judges of fact, were to conclude at this stage that the evidence is so inconsistent or so unreliable that they could not be sure that the allegations could be made out, then the submission succeeds.
I remind the Panel that it must consider each of the allegations the subject of this submission separately. The evidence is not the same and it may reach different conclusions as between the allegations.
When considering the evidence the Panel is entitled to draw inferences from what it has heard but not to speculate on what other evidence might have been called.
Mr Coonan has referred to the prejudice which the doctor may suffer by reason of the passage of time since the alleged incident. I remind the Panel that when considering the submission under Rule 27 its concern is solely with the sufficiency of the evidence; the question of prejudice is not germane to that issue.
THE CHAIRMAN: Does either counsel have any comment on the legal advice?
MR TYSON: I have a comment and it is merely in relation to my concession regarding paragraph 17. I am not in a position to withdraw that. This is a complainant case; I have no instructions to withdraw it. I just point it out because I am a member of the bar – the good side and the bad side, as it were – and point out that you may feel that the evidence is there not to prove it. But, I am not withdrawing it from the Panel because I cannot, because I have got no instructions. If I was instructed by the GMC I could have taken a robust view and said do not consider it. So, it is formally before you, if I can put it that way, for you to treat it as you wish.
THE LEGAL ASSESSOR: Could it be put then on the basis that Mr Tyson neither agrees nor disagrees?
THE CHAIRMAN: Mr Coonan?
MR COONAN: Madam, thank you. I have nothing to add.
THE CHAIRMAN: I do just have one point for clarification and that is as written it says “the facts alleged in head of charge 17” but in fact there are two parts to head of charge 17, are there not, in that it refers to both family D and one of the other families too, family M? We are concerned only at this time with family D.
MR COONAN: That is right, madam.
MR TYSON: And the Appendix to which head of charge 17 relates.
THE CHAIRMAN: Yes.
THE LEGAL ASSESSOR: I am sure the Panel have those matters well in mind. I had hoped it was clear by inference.
MR TYSON: Madam, there is a matter of machinery. I do not know whether the Panel feels that it can reach a decision on these matters tonight before 5 o’clock, or whether they are prepared to tell the advocates that they would not call the advocates back before 9.30 a.m. tomorrow morning, or before ten or something tomorrow morning, or whatever; or do you want us to wait? It is a solely a matter for the convenience of the parties, not the convenience of the Panel, that I am making this minor plea.
THE CHAIRMAN: Yes, I would have turned to that next if you had not mentioned it, Mr Tyson. I think even if the Panel reaches a decision in principle it is very unlikely we will have a determination ready for you tonight, so we are certainly looking at tomorrow morning. The suggestion here is probably not before ten. I look around to the Panel, if anybody wants to disagree. (After a pause) I do not see any disagreement. Would that be a reasonable suggestion?
MR TYSON: That would be fine.
THE CHAIRMAN: Thank you. We will presumably still be in camera in the morning but we will call you as soon as we are ready.
MR TYSON: Not before ten.
THE CHAIRMAN: And in any case not before ten.
MR TYSON: I am very grateful.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE PANEL DELIBERATED IN CAMERA
(The Panel adjourned until 10 a.m. on Friday, 24 November 2006)