GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)
Wednesday 14 November 2007
Regent’s Place, 350 Euston Road, London NW1 3JN
Chairman: Dr Jacqueline Mitton
Panel Members:
Mrs Leora Lloyd
Mr Alexander McFarlane
Mr Arnold Simanowitz
Legal Assessor: Mr Robin Hay
CASE OF:
SOUTHALL, David Patrick
(DAY TWENTY)
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 JOLLIFFE 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
CLOSING SUBMISSIONS BY MR TYSON 1
PLEASE NOTE: Copies printed from e-mail may differ in formatting and/or page numbering from hard copies
THE CHAIRMAN: Good morning. We are going to invite Mr Tyson to begin his closing speech. Before you begin to address us, Mr Tyson, could I ask, the Panel will of course get a transcript, was it your intention to provide the Panel with a skeleton as well?
MR TYSON: Madam, can I say that my intention was to give merely oral submissions, but I can and will, if the Panel like, produce immediately thereafter a little bullet point document if that would assist, so one---
(Fire alarm test)
MR TYSON: If it would be helpful to the Panel, I am very happy to prepare, after I have finished my submissions, a small bullet point document of what it was that I said, if you can be helped in that way.
THE CHAIRMAN: Thank you. I saw nods all round, so I think that would be appreciated, and a summary as well. Obviously, I was asking that because to some extent it affects the level of note taking that the Panel feel they may need to take while you are speaking.
MR TYSON: You will certainly get a bullet point document.
THE CHAIRMAN: Thank you.
MR TYSON: Can I also apologise for the state of my boxes. I am afraid that you have got to gaze at all this masking tape. It is an indication of how old this case now is.
THE CHAIRMAN: As long as you are comfortable speaking, and obviously you have raised the microphone, which is very helpful. Thank you.
MR TYSON: I trust everyone, including Mrs Lloyd, can hear what I am saying.
THE CHAIRMAN: Over to you then, Mr Tyson.
MR TYSON: Madam, can I start on some basic preliminary matters, and the first and most basic and possibly most important is the question of the burden and standard of proof. Can I say at the outset that my clients, the individual complainants – Mrs A, Mrs B, Mrs H, Mrs D and Mrs M – they all fully accept that the burden of proving the non-admitted matters lies on them, and that the standard of proof in these Panel hearings is the criminal one, beyond reasonable doubt.
Madam, can I make two points about speculation. In each of these cases Dr Southall wrote reports that the particular child was at risk of harm at the hands of a parent or parents. Please do not speculate as to whether Dr Southall’s views were or were not borne out at the end of the day. Please go no further than the questions and answers at the end of my cross-examination of Dr Southall, and for the reference that is Day 14/66E-68F. We know that there were no final hearings as to whether any child should go into care permanently, but please do not speculate about the outcome of any of these matters. Please concentrate on the heads of charge and the evidence in relation to them only.
The second aspect of speculation is this: there has been considerable press and academic discussion about Dr Southall over the long period of time that this case has gone on. In fact, I was looking, and Day 1 was on 13 November 2006, and we are now on 14 November 2007. Please, as I am sure you will, ignore anything that you may have read or heard outside the Panel room about this case or about Dr Southall generally. The evidence here is what matters.
Madam, can I make two points also about time. There are two aspects of time that relate to this hearing. The first aspect of time is the question of the length of time between the factual allegations, if I can put it that way, and the hearing of the evidence about it. In the M case, the matters took place in 1998, in the H case it was 1989 and in the D case it was 1994. On any view these are long periods of time before evidence was heard about them. I accept that Dr Southall has been handicapped by virtue of such length of time in dealing with these matters, but the length of time works both ways. The individual complainants have undergone the same length of time and have, you may think, also been handicapped as a result.
Madam, so far as length of time is concerned, if I can use a bit of jargon, we are where we are. Your task will be to take due cognisance of the lapse of time when you are assessing the evidence of both parties, and I have of course as a lawyer to accept that when you are looking at these matters where the burden and standard of proof lies.
Madam, the second aspect of time is more immediate. The bulk of the evidence was heard a year ago. There is no detriment to the parties, you may think, in the bulk of that, in that most of the evidence was heard in one block. The only detriment has been to everybody in this room who has to read and re-read lots of transcripts. There is, I submit, a possible detriment to Mrs M. Her lone videotaped voice from Australia was heard exactly a year ago, and her witnesses, Dr Corfield and Ms Parry, were heard shortly thereafter. You have heard Francine Salem just this week. I would ask you, as I am sure you will be, to be fair to Mrs M and her case, bearing in mind that you have heard the two bits of evidence about it one year apart.
Madam, finally can I help you as to the structure of my closing submissions. Firstly, I am going to deal with the broad subject of inappropriate retention of documents, if I can put it that way, retention of records. This will cover, firstly, heads of charge 10-12, which is the SC files and Appendix 1. Then I will go and also deal with heads of charge 13-14, which is the removal of the SC files relating to the Brompton patients up to North Staffordshire. Then I will deal with heads of charge 15-16 relating to records held on computer, which is the Appendix 2 matters. Thereafter I will deal with the broad area, or, if I can put it this way, Dr Southall’s behaviour towards the parents of the children. I will deal firstly with Mrs D and the corridor incident, if I can put it that way, which are heads of charges 17 and 18 and Appendix 3. Then I will deal with Mrs H, and that is the unnamed paediatrician letter, if I can put it that way, which is covered by heads of charge 7-9. Lastly, I will deal with Mrs M and the allegation of murder, which is covered by heads of charge 3-6 and also heads of charge 17-18 and Appendix 3.
Madam, I have to apologise in advance possibly for the length of my submissions. They are necessitated in the main by having to deal with and remind you of evidence that is a year old, but I do have some spreadsheets that should help with the more technical matters.
Can I go to the broad subject of special cases files, or SC files, and start at the beginning with the question of medical records generally. To assist you and to remind you, as it were, of the basic groundwork, the starting point, can I ask you, please, to look at Professor David’s report at C3 at (a). Madam, this is the basic building blocks of medical records and I really cannot improve on what Professor David says about them, starting at paragraph 355 on page 227. At 355 he sets out what hospital medical records are, and at 356 he includes what the term “hospital medical records” includes, and you will have noted in the middle of that passage at 356 “handwritten and typed correspondence (both sent and received) including letters of referral”. Then he sets out at 357 six essential purposes of hospital medical records. We see at 1 it is:
“they contain a factual record of information pertaining to the medical problems and medical treatment …..
[2] they serve as a means of communication between all health professionals”.
The second sentence is important here:
“They may contain information of vital importance to those caring for the patient in the future eg information about an operation, an investigation, or a drug allergy.”
3, over the page:
“they provide information about past illness, investigations and treatment, information that may have an important bearing on subsequent illness episodes or follow-up.”
Again, I rely on that. At 4:
“they are legal documents which are an essential resource should the patient and or his/her medical care be the subject of any subsequent complaint or litigation …..
5 they [may be] required for the purposes of audit …..
6 they may be needed for medical research.”
Madam, then we come to the Department of Health Circular, the 1999 Department of Health Circular, and this is an important document summarised here because Professor David said in evidence, and the reference is Day 4/19D, that there was nothing new in this guidance, it codified existing understanding at the time of the allegations. So notwithstanding the date, he told you that it codified existing understanding. More importantly, Professor Southall, when I put it to him, broadly agreed that these were matters of universal application, and he said that at Day 12/57H-62G.
So if I can take you to paragraph 358 of Professor David’s report, where he sets out, I think this is a circular called “For The Record”:
“Medical records are a valuable resource because of the information they contain. That information is only usable if it is correctly recorded in the first place, is regularly up-dated, and is easily accessible when it is needed.”
It is the words “easily accessible when it is needed” which I will be coming back to time and time again in the course of my submissions. They say why they are needed and they make the bullet points on page 228 and 229, most of which I have covered in my earlier submissions. The circular goes on, and if I can pick it up at 230, at paragraph 361, and again this is from the 1999 Department of Health guidance of universal application at the time of these complaints. 4.1 I have been through.
“4.2 Good record keeping ensures that”.
If I can take you to the third bullet point:
“those coming after you can see what has been done, or not done, and why”.
I rely on that. The fourth bullet point:
“any decisions made can be justified or reconsidered at a later date.”
Then at 4.3, good record keeping is vitally important for the matters there mentioned at the top of page 231, and we can see what they include, including the bottom bullet point “disputes or legal action”. The circumstances in which they are vitally important for, as it were, disputes or legal action are three-fold, you may think: first of all, if a parent or parents want to make a complaint in the future; secondly, if there are any criminal proceedings that arise out of what happened; thirdly, if there are any child care proceedings that arise out of what happened; and fourthly, if there are any clinical negligence proceedings that arise out of what happened. So in that little phrase “disputes or legal action” there are four different scenarios encompassed.
It is paragraph 4.4, madam, upon which the complainants in particular rely in this case and want that, as it were, to be a shining beacon to the standard. It is not the gold standard, madam, it is the standard which all have to obey. “4.4 It is therefore vital”, and I underline, as it were, metaphorically the word “vital”, “that you”, i.e. the clinician, “record any important and relevant information, making sure that it is complete”, and again I metaphorically underline the word “complete”. Then the third bullet point, which I am going to make more submissions on, “put it where it can be found when needed”. A simple proposition, a vital proposition, and very important in this case.
Turning over the page to page 232 we have paragraph 363, which is the important paragraph in my submission for looking at medical records generally:
“A patient’s hospital medical records are regarded as sacrosanct and inviolable ie must always be kept intact as a very high priority.”
I rely, as I say, on that passage.
Can I deal further with the concept that we find at 4.4, that it is vital to put records where they can be found when needed. I just want to examine that concept a bit more, the concept with SC files.
I asked Dr Southall about that phrase, “put it where it will be found when needed” and he accepted (Day 12/62) that it was a vital matter. He also accepted in relation to SC files, whether they could be found when needed, that the only possibly way that they could be found when needed was for there to be a note in the main file – a note, a card or an acetate in the main file – to indicate the existence of a separate parallel SC file. He acknowledged that there was no such system either at the Brompton or at North Staffs to indicate in the main file that there was a parallel or separate file in his department.
He maintained (Day 12/62E) that there was a good system because “everybody knew” that he maintained SC files. I have to say on behalf of the complainants that, apart from Dr Southall’s assertion to this effect, there is absolutely no evidence whatsoever that “everybody knew” at either the Brompton or North Staffs of the existence, and more importantly, the contents of SC files.
Dr Southall called no evidence on this issue. In view of his repeated assertions that ward managers or other administrators at either the Brompton or North Staffs knew all about SC files you may find it surprising that we heard no evidence called by him to show that administrators or ward managers at either the Brompton, or in particular North Staffordshire, where he still is, could come and tell you, yes, they all knew about the SC files. In my submission, that is an important point for you to take into account.
The only evidence that you did hear from, as it were, an administration point of view on the concept of “found when needed” is from Mr Chapman, who was the administrator from the Royal Brompton. He told you, I submit, at least five important matters. I am dealing with this in chronological order. Firstly, in 1995 he got a letter from Professor Southall, which we can see in C2/6A. It is right at the back of C2, under section 6, and under tab A in relation to that. This is a letter from Dr Southall, when he had removed to Keele, back to Mr Chapman at the Royal Brompton. It relates to Child A, but the important point as far as I am concerned is paragraph 1:
“We always kept our own records for all the special cases that we dealt with at the Brompton Hospital.”
Mr Chapman was asked about that and he said that the words “special cases” meant nothing to him at the time. He had no idea what “special cases” meant. He said that at Day7/61E.
Now we come to 2000 and in 2000 Mrs H wrote a letter to Mr Chapman asking what did the reference SC2026 mean in her son’s files. Mr Chapman replied (and the reference is C2/2/L/19, which I need not take you to):
“I am sorry to say that I do not know what this number refers to.”
That is in 2000.
In evidence (Day 7/66E) Mr Chapman confirmed that in 2000 his state of knowledge was that he had seen SC numbers but he was not aware that there were such things as SC files. That is the position in 2000, as far as he was concerned.
Thirdly, in 2003 he gave evidence that he only became aware of what an SC file was in October 2003 when he learned about them from a solicitor employed by another Trust. That is the evidence at Day 7/57E.
The fourth of the five important matters that Mr Chapman told you is that he made extensive inquiries with all the departments at the Royal Brompton and he made extensive inquiries of Dr Southall himself, and neither the extensive inquiries within all departments of the hospital or of Dr Southall revealed to him either the existence of an SC file or indeed the files themselves (Day 8/1F to G).
The final point I make in relation to this, the fifth point, is that Mr Chapman told you that he had himself never seen an SC file itself until the day before he gave evidence in November 2006 (Day 8/2B).
Madam, I have interrupted my submissions on medical files generally to highlight an important issue relating to SC files, namely all the guidance is that any medical records on a child should be found when needed. My bald submission to you is that these SC files could not be found when needed, i.e. when access to them was sought. Access to them was sought by those with an ability, you may think, people like
Mr Chapman, to find them. It was his role to liaise with solicitors and, when there was a request for medical records, to provide and find the medical records. He never found an SC file.
I accept that clinicians and nurses working closely with Dr Southall may well have been aware of the existence of an SC file and may even have been aware of the contents of an SC file, but the important point is that others, and in particular management, did, on the evidence, not know of the existence and/or contents of such files.
Can I turn to a related topic under the general heading “Why hold an SC file?” Dr Southall gave four principal reasons in evidence for the holding of SC files and he dealt with this matter at Day 12/38 and 39. Firstly, he said it was for the physical storage of specialised physiological data, i.e. tapes, printouts, activity logs, etc. Secondly, he told you that this data was required to be in a special cases file for two purposes. Firstly, in relation to the clinical care of that child, and secondly, in relation to clinical audit that he was carrying out on all the children who were being admitted. The fourth and completely separate area which he said he used SC files was for child protection work.
Perhaps I can go through those four in turn. As far as storing specialist physiological data is concerned, there are two matters in relation to that which were the strictures of Professor David, both of which were accepted by Dr Southall. The first stricture is that it is perfectly all right to have all this specialist physiological recording, as it were, in a special cases file provided, firstly, that all reports produced as a result of such specialist recording should be in the medical records. Dr Southall accepted that.
Professor David’s second stricture was that the activity logs filled in by the nurses should not contain clinical information about a child over and above that which was in the nursing cardex. Provided those two strictures were observed, both of which Dr Southall accepted (D12/40 to 41), then Professor David saw that there was no overwhelming problem about the storage of specialist monitoring matters in the SC files.
The second reason given for the storage of materials in the SC files related to the clinical care of a child. Dr Southall told you that there was a 24-hour requirement to have access to material relating to a particular child under his care. That, madam, is as far and as fine as it goes, because Dr Southall accepted that this would only apply at the time when a child was actually an in-patient at the hospital or for a short period thereafter when the child might be subject to home monitoring on equipment provided by Dr Southall. He accepted in evidence that after this time the clinical reason for keeping material in the SC file vanished and it was entirely possible for that material to have gone back into the hospital medical records (Day 12/41 and 42). He also accepted the fact that whilst it could have gone back into the medical records after the immediate clinical care of the child was over, in fact it did not. It remained in the SC file.
The third reason that Dr Southall gave for having an SC file was, as he told you, for the purposes of clinical audit. I make two points about this sub-head. First of all, this clinical audit reason for holding an SC file had never before been advanced by Dr Southall before he gave evidence. In particular, in what we have started to call the Hempsons’ letter (the Hempsons’ letter of explanation, C2/6/C), the Hempsons’ letter of explanation does not tell us at all that clinical audit is a reason for having SC files. You will recall, and I will recall for you, at page 12 of that letter, that he said:
“Thus Professor Southall used special cases files in two situations:
1. To keep documentation relating to the specialist monitoring of the children that he was undertaking …
2. To store confidential documents relating to child protection issues.”
Madam, the upshot of this is that as Dr Southall had never mentioned clinical audit before he gave evidence, thus Professor David could not deal with it in his report, and did not deal with it in his report. More surprisingly, you may think, Professor David was not asked any questions about clinical audit when he gave evidence. The question of clinical audit did not surface in this case until Dr Southall himself gave evidence.
The second point I make about clinical audit is that the issue of the distinction between clinical audit and research is a heated and difficult one, but not, you may be glad to hear, the subject of any of the heads of charges with which you are dealing.
I would just say that it is an important distinction because, as Dr Southall accepted, for “research” you need both patient consent and ethical committee approval. It is not alleged in relation to the matters in these SC files that either patient consent or either ethical committee approval was obtained for the holding of these files and doing the work that he did that his described as “clinical audit”, where he told you that he looked at, as it were, all his children and found developments about which she would publish details and tell fellow paediatricians about at meetings. He described that as clinical audit; said dubitante.
The fourth reason given for the reason of holding of an SC file was to store confidential documents relating to child protection work. That is how it is put in the Hempsons’ letter.
I would now like to take you to submissions about whether it is appropriate to have a separate file relating to child protection work and, in particular, whether it is appropriate or right to have a separate file that contains child protection correspondence and, in particular, original child protection correspondence.
I first make some points in favour of Dr Southall. Can I concede right away that, as Professor David stated in his reports, there is a ground for keeping a separate file in a case where you are both the clinician and likely to be, or are also, an expert in any subsequent proceedings. Dr Southall was, or was likely to be, an expert in any subsequent proceedings and we have seen that in each and every one of these cases he did in fact prepare a report.
The reference to Professor David making that concession is in his first report at C3/(a). You will find discussion on that at paragraphs 368 to 388. I would invite you to read that in due course. Can I make the point that Professor David makes, in particular in paragraph 374, where he makes it clear that clinical matters, including correspondence, would universally be regarded as part of a patient’s medical records and should be kept in the patient’s hospital medical file.
Later on in his first report, in answer to his own question 5, Professor David said that for administration convenience, or to assist in the preparation of a medical lego report, it was permissible to have a separate file for your own convenience provided, and it is a very important proviso, that there were only photocopies in there of material that you had taken, or the clinician – or in particular Dr Southall – had taken from the child’s hospital medical records.
For your own convenience, whether it be administratively or because you want to prepare a report, or you are going to be involved in the case long term, you can keep your own, as it were, informal file. That, providing it is kept secure and the like, Professor David has no problems with providing it contains no original medical records.
I now turn to the important subset of correspondence I take you to Professor David’s second report which is at C3/(b) – C3 tab 7(b), paragraphs 75 and 76 of that report which you will find at page 31. C3 contains all Professor David’s reports, tab (b), page 31. Paragraphs 75 and 76 are at the kernel of this case relating to SC files and I rely on them heavily. Paragraph 75:
“It seems to me to be particularly important that correspondence between clinicians that voices child protection concerns should most assiduously be placed in the patient’s medical records. It is an important general principle that this kind of information should be shared between professionals, and one would want any clinician who looked at the hospital records of a child to be fully informed about child protection concerns.
Ultimately, I suppose, the question is what is in the patient’s best interests? Should information about child protection concerns be actively excluded from his or her medical records, or should there be positive action to ensure that all such concerns are filed in the patient’s medical records. My answer would be that I cannot see how a patient could benefit by concealing this information, whereas failure to communicate this information with other health professionals at the hospital (by excluding it from the patient’s medical records) could possibly be harmful, and could lead to inappropriate actions or treatments.”
Madam, Professor David expanded on that in evidence. Can I give you the references. It is Day 4/24F–25C and Day 5/5A. It is permissible, according to Professor David, for Dr Southall to hold a special cases file, to put in it specialist respiratory matters and photocopies from a patient’s medical files. What is simply not permissible is to place original medical hospital records in that file where that is the only place that it can be found. That is the gravamen that we will come to at head of charge 11(a) and (b). The fact of not having original medical hospital records in any other file is set out in Professor David’s report in answer to his question 10. I need to take you to the same report I have just referred you to, the report at (a), his first report to paragraph 414. You will find that at page 247 of that first report. The question at 414, he answered it at 415:
“It is hard to see how one could justify removing an original item from a child’s medical records unless that item had been placed there. Removal of original items from a child’s medical records would be regarded as a form of tampering with the medical records, and would be quite inaccessible. Once an item had been removed, it would cease to be accessible to others involved in the care of the child. Failing to place (or causing such a failure) an original item in the medical records would be no different in its inappropriateness, its seriousness, and its effects from removing (or causing the removal of) an original item from the medical records.
The issue that causes the problem is the removal of the item from (or the failure to place it in) the medical records. The fact that the item may be located safely elsewhere does not excuse the tampering with a child’s medical records unless there was a note to that effect in the medical records or unless staff (eg doctors and nurses) looking after the child where aware of the existence and location of a separate section of records”,
e.g. by the acetate or the other that we were talking about.
I submit that, even if one substitutes the words “tampering” used there with the words “damaged the integrity of”, which is the form of words you, Madam, eventually suggested, what Professor David is saying in those paragraphs is simple common sense. The integrity of hospital medical records is important, they are sacrosanct and this is a fundamental concept. In order for medical records to be accessible, they have to be in tact. It is a point that Professor David made at Day 5/12 and he regarded it, as it were, as one of the ten commandments, as he put it; that medical records should be in tact and accessible. He said that at Day 5/14B.
I turn to a section about the risks if they are not in tact or accessible. First, a subsequent clinician may need to know a piece of information that is in the SC file and nowhere else. The matter is compounded, we say, by the fact that there was no knowledge in the hospital medical records that there was such a file on the child that may or may not contain the vital information. Also, a parent may legitimately want to view the medical records to get either legal professional advice or, indeed, a second opinion from a second clinician. Parents are fully entitled to do that and that is made clear in all the guidance. If the parents’ medical legal expert or if the second opinion clinician does not obtain all the medical records, as the originals have been filed elsewhere, then there is a risk that an important matter in the subsequent advice could be lost.
Thirdly, these are not fanciful risks. Professor David gave you three examples of why they were not fanciful. The first and most graphic example he gave you was the Sally Clark example as to why it is important to have all medical records accessible. She, as you recall, was convicted of the murder of her two sons. A set of results was missing and was not located until after her conviction. That set of results was instrumental in her subsequent successful appeal. That gives an example, a classic, graphic and terrifying example, of how important it is to have medical records in tact and accessible in places where everybody knows where they are.
A second less graphic but equally important example given to you by Professor David was in a complex care case in which he was personally involved. At Day 4/22D he told you that the whole outcome of this case depended on one single piece of data that was found by, it appears, a diligent barrister. But one single bit of paper can – he was using this as an example – turn the whole case. If there is not access to, or knowledge of, that bit of paper then all can go wrong.
The third interesting fact, you may think that Professor David says, is that he, as he made clear in his reports, had been asked professionally to advise, as an independent medico-legal expert, on the medico-legal experts of Child H. When he obtained all the material, which he did obtain, he did not get the SC file or the material in the SC file. He gave that as personal evidence of his own experience. He said that at Day5/13B.
There are two overlapping issues here that one really needs to separate out. The first issue is, is an SC file an appropriate place to file an original medical record, and secondly, if it is so, how accessible will that SC file be? My short answer to question 1 on behalf of the complainants – that an SC file is not an appropriate place to file any original medical record, whether a child protection record or not, partly due to one’s answer to question 2, namely, that if an original is parked in the SC file it will become inaccessible – as I keep repeating, it is as inaccessible as knowledge of the existence of, let alone the contents of, such SC files which was not known to others.
There was no note or tracer system or acetate system informing the Medical Records Department of the existence of such file, and without the Medical Records Department or the like knowing of that, either holding the file or knowing of its existence, they could not produce it for subsequent clinicians or in subsequent requests for access. It is no use, in my submission, for the defence team to assert that, yes, the SC file did contain medical records, did contain original medical records, but they were all part of the child’s medical records really filed in a separate place. That argument does not hold up water, saying, “Yes, these are all hospital records merely found in a separate place”, if the separate place or the existence of that file is not known about.
Madam, Professor David, as I have been submitting, supported by the Department of Health guidelines, essentially says medical records and the sanctity of them is vital; there is, secondly, a need for them to be complete and have integrity; and, thirdly, there is an especial need for child protection documentation and correspondence to be in the main hospital records.
The next point I wish to make to you is that these are not the views of one very experienced paediatrician with years of experience in child protection. His views are supported, we would say, by the various protocols and guidance to which you have been referred. Can I, please, at this point give you a little spreadsheet, which hopefully, without you having to go to the protocols and guidance themselves, I can take you to. (Same handed)
THE CHAIRMAN: This document will be C19.
MR TYSON: Madam, you can see from the heading what this is. It is “Analysis of Record Keeping Policies & Protocols”, and one can see the first column is the date of the document, the second column is the title of the document, the third column is the reference to your bundle and the reference to Professor David’s reports if he comments on the particular item. The middle section is what the material says in brief, and the “Transcript ref” is if any witness has referred to it. The comment is, as I say, my comment, or my note, of what a witness said. It ends with some general notes that I make at the bottom of page 7 and 8.
Madam, the first matter about separate or non-separate records relates to the second document, which is the February 1993 document, which is the North Staffordshire Health Authority child protection policy. You can see the reference to that. It sets out in child protection matters the duties of doctors, nurses and paediatricians, and my comment, based on Dr Southall’s evidence on the date there noted, that he concedes that there is no reference to separate files here.
The next document is over the page, it is the January 1994 document, which is the Staffordshire Area Child Protection Area document entitled “Life Threatening abuse Guidelines”. You will see the reference to it. Under the relevant material, part of this document related to covert video surveillance documents and it indicates effectively that that very sensitive matter should, at the end of the day, become part of the record and be retained by North Staffordshire in the notes. Dr Southall, on the day with the reference there noted, as I say in the comment, he agrees there is no mention in this document which concerns extremely sensitive material, i.e. covert video surveillance records and the like, of keeping medical records in a separate place. He prepared this document. He conceded that there was nothing in here about life threatening abuse documents being in a separate document, but he added, and I have put this in quotes, “they were though”, i.e. they were put in a separate place, even though his own policy, which he himself had had a hand in drafting, said to the contrary.
We next come to the important one, which is the January 97 guidance of North Staffordshire Trust, which again, and this is on page 3, Dr Southall had a hand in drafting, and this is the only one I need physically take you to, madam, I think, which we will see at C3/7(d)(vi). Within that can I ask you to go to page 20, for which you have to put it on one side, as it were, it is a landscape document. Madam, you will see in my quotation the relevant material, and I draw the Panel’s attention to paragraph 2.1, at the bottom left hand corner, which is “Guidelines for documentation in situation where to inform parents could jeopardise the child’s safety”:
“Where there are concerns regarding Child Protection issues and a decision has been made in the interests of the child’s safety not to inform parents, staff must”,
and I rely on that mandatory word, and then it is the top two bullet points on the right hand side:
“record concerns on a separate sheet of paper which should be stored with the medical notes in a separate folder and must be signed and dated (Note these should not be kept by the bedside)
in areas where the consultants have agreed that the medical notes are kept by the bedside, agree a separate place for storage of confidential records which all staff are aware of and refer to at hand over.”
In evidence Dr Southall agreed, and I have given the reference on my spreadsheet, that paragraph 2 relates to the inpatient situation. Then paragraph 3 “Guidelines for documentation where parents have been informed of child protection concerns”, and at 3.1:
“Where parents have been informed of concerns regarding Child Protection, staff should record all information in the nursing or medical records – as appropriate.”
I need not take you any further about that, but it is clear that the policy, drafted, or assisted in the drafting by Dr Southall himself at his own hospital relating to child protection concerns, was that, in a phrase used by Professor David, once the cat is out of the bag, if I can put it that way, 3.1 tells you that all information should be in the nursing and medical records, not in a separate unknown about file.
Just continuing down my spreadsheet, on page 4 you will see reference to the 1999 Department of Health circular “For The Record”, which I have taken you to, and you see the transcript references to what both Professor David and Dr Southall said about that. Then we come to, in August 2002, the Department of Health “Safeguarding Children in whom Illness is Fabricated or Induced”, and that is document D19, and Dr Southall was taken to that, the passages there mentioned. I will deal with this in more detail later, but it does, for the first time, introduce the concept of supplementary records subject to several provisos: one is that the holding of such supplementary records should be agreed by a strategy meeting, i.e. by Social Services, and the reasons for it should be recorded.
Then in time we have the Victoria Climbié Inquiry recommendations, which are at C15, and the most important recommendations of those, you may think, over the page at page 5 is recommendation 69, that you should “keep record in the case notes of all discussions ….. so that this becomes part of the child’s permanent health record”; recommendation 73, “enquire about previous admissions to this and other hospitals”, and that is of course right in child protection matters, that if somebody comes with child protection concerns to you, you want to know whether any other hospital has had similar concerns, and if you were to contact, as it were, North Staffs or Royal Brompton at the same time, they would not necessarily be able to tell you about child protection concerns because all the child protection concerns were in this SC file of which people did not know. Recommendation 78 is again relied on: “within a given location, health professionals should work from a single set of medical records for each child”.
Then we come to the 2006 North Staffordshire guidelines, which incorporate to a considerable extent the 2002 Department of Health guidelines. We see in paragraph 1.2 of that document at D20, if there are FII concerns, do not tell the parents until it is agreed they should be told, and the preferred practice is to keep a separate medical record away from the immediately clinical area. Dr Southall agreed in correspondence, indeed it is plain from the document itself, that the whole concept of having a separate record relating to child protection concerns is at the time of inpatients, not thereafter. Going over the page at page 6 it sets out that you have to record the reasons for a supplementary record, and, at 2.2, if you are going to have a supplementary record you have got to agree that at a strategy meeting with the Social Services, and at the hospital, if you are going to have a supplementary record, the decision should be made by clinicians and communicated to management so management knows about it. The basic rule at 3.1 is that information should generally be recorded in the main medical record. Then the important one at 3.3 is that in order to identify within the main medical record that additional information was available, the ward manager is to place a red acetate divider within that. Then at 3.6, and over the page at 7, at the end of the inpatient stay, or when child protection concerns are substantiated, you should join the supplementary record to the main record.
Madam, I make some notes about it, and the important note, you may think, is note 3 on page 8:
“[Professor] David’s view is that completely different considerations apply when child was an in-patient and concerns were emerging. A separate record may then be kept. Once concerns had emerged and ‘the cat is out of the bag’ one puts the documents back into the main medical record.”
That had been the practice throughout, he said, it is not an evolving matter. That is the importance about that. He also deals with it in his second report. The reason why the matters can be put back in to the main medical record is there is no worry about the parents reading the matter, because once a child has left the hospital the parents then have no access. Dr Southall accepted the argument there put that all the guidance until 2002 was there should be no separate records, and after 2002 the guidance was you could have separate records in certain circumstances to cover the short period when the child was an inpatient and when child protection concerns were emerging.
Madam, finally on this point, the overwhelming evidence, you may think, both from Professor David in his reports and in his evidence and in these policies, is there is no justification whatsoever for a separate file concerning child protection correspondence and the like, save in the extremely limited time at or immediately after inpatient admission.
Can I now turn to the area of what I call Dr Southall’s policy, and every time I use the word “policy” you should put that in inverted commas. Madam, Dr Southall claimed that he had a policy of putting all child protection material into the special cases file. He explained his policy at two points, at Day 10/25B and at Day 13/3D, amongst other places. He explained to you that when clinical activity stopped and child protection concerns became apparent, he had a global policy that all correspondence should then be put into the SC file. He justified that policy, madam, on the basis that it was confidential material, and he used a rather graphic description (Day 11/11G), graphic and possibly even patronising, where he said:
“It is not the sort of thing we would want in medical records that are available to people”.
So his justification for putting, as it were, post child protection matters into a separate file was justified on some degree of confidentiality. There are a huge amount of problems with that stance, that there is a policy and what it means. I would like to highlight four problems with the “policy.”
The first one is, of course, that in this case we know that often child patients are admitted with child protection concerns, and so where do you draw the line? We can see that Child H was admitted with child protection concerns (C1/2(a)). Child A was admitted with child protection concerns (C2/3(d)), and Child B was admitted with child protection concerns, i.e. the Crawley referral letter (C2/5(b)(ii)). So the question of Munchausen's Syndrome by Proxy is often raised on admission as a reason for admission, and we can see that in the hospital clinical notes. If the “policy” is that all mention of MSBP or factitious or induced illness is not the sort of thing we want to see in the medical records, then this “policy” falls by the wayside if you are admitting the child in the first place with child protection concerns and they are all over the hospital records.
The second problem with the “policy” is that it is not consistently applied by Professor Southall himself. This is where the document C16 comes in, which was a separate bundle that was produced to you which shows extracts from the main hospital notes in relation to each of the children.
Can I just say, for the benefit of your notes, that all these letters were gone through with Professor Southall at Day 13/9 to 19C, and you can see there what he says about them. One can just look, for instance, at tab 1 of C16, which is the clinical correspondence in the Royal Brompton Hospital medical records relating to this child, to see how consistent he is about the policy. Can I just highlight a number of matters? We can see at page 36, which is part of a letter from great Ormond Street Hospital, there is a reference to Munchausen’s Syndrome by Proxy. At page 41 there is a letter from the Royal Cornwall Hospital’ where we see that Dr Southall is saying that this should be filed in the hospital notes, and we see at page 42 this consultant is saying, six lines down from the top:
“This does seem to have all the features of Munchausen by proxy.”
This is a letter which by Dr Southall’s own hand he says should be filed in the medical records relating to this child.
I draw your attention briefly to pages 53-57 in this bundle, which is a report by a social worker, which contains a number of extremely unflattering things about the parents in this case. This was in the main hospital records.
Madam, in relation to Child B, under tab 2 we see what was in the main hospital records relating to this case. We see a letter at pages 10 and 11 (it is very difficult to see the bottom of the photocopying), a letter dated 14 October 1993, which is a letter from Professor Southall in the main hospital medical records which talks about, as we can see at the top of the second page, “exaggerated or fabricated reports.” The whole matter deals with Munchausen and the like, and then there is a medical report, again in the hospital main records relating to this child post-admission. We can see on the second page of the medical report it says, at the bottom of page 14,
“I have little doubt that [Child B’s] case is one of Munchausen’s syndrome by proxy.”
There it is in the report in the main hospital records, so there is no consistency in his own “policy.”
I need to take you to tab 4, which relates to Child H, and there are numerous documents in here that should not be here. I take you, in particular, to page 25, which is a letter from a social worker to solicitors who were instructed by Mr and Mrs H, and this is a document that says:
“This is a multidisciplinary information sharing and Planning Meeting for professionals called in view of Dr Southall’s concerns. It is his view that [Child H’s] parents are pursuing a rare and life-threatening illness on his behalf and that this illness does not exist.”
It deals with child protection procedures and here in his own hand Dr Southall is saying that this should be filed in the hospital records. There are numerous documents in relation to each child which you can see when you study C16, and if there was a policy then it is not consistently applied by Dr Southall himself in his own records.
The third problem with the “policy” is that he gives inconsistent answers in relation to it. At one point (Day 13/3D) he indicated that as soon as there were child protection concerns he would put the documents into a special cases file, but when one of the documents in C16 which we have just been looking at was put to him, he said, “Oh, there’s no big issue about this because this document emerged after the child had left the hospital and after discharge there is no problem whether it is in the hospital records or in the SC files.” So at one moment he is saying, “My policy is as soon as child protection concerns, straight into the SC file, confidential”, but secondly, and alternatively, and in contra distinction to that, he is saying, “Ah, after discharge it can go in either the SC file or the hospital records.” He cannot have it both ways. The second point, that it is no big issue (to use his expression) after discharge, was said at Day 13/15D.
His own internal inconsistency is this: his hard line policy is as soon as there are child protection concerns it is into an SC file, but then he said the complete opposite at Day 13, which was, effectively, to adopt the cat out of the bag argument, where he said it is no big issue if, after discharge, child protection documents are in the hospital file or the SC file. I submit that that quote at Day 13/15D drives a coach and horses through the idea that there is any “policy.”
Madam, the fourth problem with his “policy” is that it is not followed by others, i.e. if one looks at clinical correspondence with other clinicians in other hospitals you will find that originals of letters that he places in the SC file are placed by other clinicians in their medical records. This was gone through in evidence when I put various matters to Professor Southall in relation to the Appendix 1 documents. We went through this on Day 13/20, and effectively, we went through each and every item in Appendix 1 relating to Child D and whether it had been filed by other clinicians. The broad answer was that Great Ormond Street had filed each and every one of these documents in their main hospital medical records. Professor Warner at Southampton had filed all but two, I think, in his main hospital medical records. These are matters which, of course, the doctor told you were so sensitive that the originals had, as a matter of policy, to be in the SC files.
THE CHAIRMAN: Mr Tyson, if you have gone through your four problems, would that be a good place to have a break, or have you completed your list of four problems?
MR TYSON: The four problems with policy. Can I just give you my summing up on the “policy” and then we can move on?
THE CHAIRMAN: Yes.
MR TYSON: My summary, having been through, as it were, the four problems with the “policy”, is in fact there is no clear policy, either in writing or in practice, that child prescription original documents should be filed outwith the child’s hospital records. Our submission is that Dr Southall is using this “policy” as an ex post facto justification for the embarrassing discovery of a number of original medical records in the SC files that you have before you. The policy is flawed in its execution, but most importantly, it is flawed in principle, because by the time SC concerns have been justified the cat is out of the bag and there is no need to keep a separate file.
Madam, that is a convenient point.
THE CHAIRMAN: We will take a break of about 20 minutes. I think that will take us very nearly up to half past eleven, so we will resume then. Thank you.
(The Panel adjourned for a short time)
THE CHAIRMAN: Mr Tyson please continue.
MR TYSON: I am about to come to the individual items in Appendix 1. Before doing so, can I remind you of the four questions that I posed when I opened this case, that you should ask yourself about each and every item within Appendix 1. I posed these questions on Day 4/1F.
Question 1: Is the item a medical record?
Question 2: Is it an original document?
Question 3: Is it not else where in the child’s hospital medical records?
If the answer is “yes” to all those three questions, you then go on to ask yourself.
Question 4: Why is it only in the SC file?
Madam, can I ask a fifth question, bearing in mind the way the heads of charge is based.
Question 5: Is the document in the SC file, because it was placed there, or was it caused to be placed there by Dr Southall or on his behalf?
I can see one has to have the hands of Dr Southall on this in order to establish that.
Before I turn to the individual heads of charge, can I deal with some aspects, bearing in mind question 5, of Dr Southall’s responsibility. These were discussed, and broadly accepted by him, when I put them to him on Day 13/5. He broadly accepted, and did accept, that the SC files were his idea. Six propositions come from that in my submission. First, he is thus personally responsible for their creation; secondly, he is personally responsible for the integrity of the files the SC files; thirdly, he is personally responsible for the integrity of the main hospital records as they affect his patients; fourthly, he is personally responsible for informing others, and in particular medical records departments, of the existence of such SC files. Mr Chapman was extremely firm about that and Mrs Lloyd was the one who elicited that information. We can see that at Day 8/28E. So, fourthly, he was personally responsible for informing others of the existence of the SC files. Fifthly, he was personally responsible for informing the Brompton that he was taking the SC files to North Staffs. Again Mrs Lloyd elicited that and it was firmed up in re examination. The references are Day 8/28F and Day 8/32C E. The sixth matter that he was personally responsible for in our submission was that he was responsible for the filing actions within his own department for the decision where to file various matters.
Moving away from the personal responsibility of Dr Southall, I turn to a very important document because it cuts down much of what one has to consider on Appendix 1 which is Dr Southall’s admissions. For that we need to turn to document D9.
You will no doubt look at D9 with care when you retire, but can I use D9 and, hopefully, summarise it in a way that my learned friend finds acceptable in relating to my questions. In relation to question 1 – is it a medical record – the answer to that, from D9, is that it is admitted that all the documents contained in Appendix 1 are medical records, save for the Dr Samuels’ manuscript note in the case of H.
In relation my question 2 – is it an original document – the answer I derived from D9 is that, it is admitted that all the documents in Appendix 1 are originals.
In answer to my to my question 3 – is it not elsewhere in the medical records – the admitted answer is that, all the documents are not elsewhere in the respective child’s medical records, save for the MRI scan in relation to Child A. I trust that I have summarised D9 accurately and I will be corrected by others if I am wrong.
THE CHAIRMAN: The document says that, actually, it is not the scan, it is the report on the scan which I think were two distinct items.
MR TYSON: It is written in my note “MRI scan report” and I did not read out the word “report”. You are right because there was a considerable discussion about the difference between the two. The MRI scan report in relation to Child A is not admitted but it is not in the medical records. That leaves you, you may think, with a lesser task when considering heads of charge 10 and 11. I am grateful to my learned friend for feeling able to make the admissions that he did.
As far as the documents in Appendix 1 are concerned, you will be aware that a C file, C9, was created for you which contains each and every document in Appendix 1, if you find it convenient to look at them there, or you can turn to the original SC files themselves. It is a matter for you. Can indicate that at C9 is in order, each and every document in Appendix 1. If you need to turn to the SC files themselves in relation to Child A and Child B, they are at C5; the SC file in relation to Child D is at C6 and the SC file in relation to Child H is at C7.
Finally, can I turn to each and every item. I will deal with it globally in relation to Appendix 1. I first turn to Child A and the MRI report of 11 February 1987. This is the document on the first page of C9. That is the original report signed by the two people there mentioned. In relation to this document, in evidence Dr Southall accepted that this document was an original found in the SC file. He accepted that at Day 13/21F; he accepted that it was a medical record, Day 13/21G; he accepted that it should have been in the main hospital records, Day 13/21 H. He also accepted that there is no evidence that there was a report in that form at the Royal Brompton until he, Dr Southall, sent a photocopy of it to Mr Chapman in August 1995 – the reference, the August 1995 reference, C2, tab 3(b) page 22. Dr Southall sent a photocopy of that page to the Royal Brompton in August 1995. At Day 13/22B Dr Southall accepted that there was no evidence that there was a report in that form at the Royal Brompton until he sent it in August 1995, some eight years after it was created.
There is then a question about a possible report on the computer, if I can put it that way. We heard inconclusive evidence from Mr Chapman, who was unsure whether in 1987 there was a copy of the report on the hospital computer, the predecessor of what is called the PAS system. This issue was explored by you, Madam, at Day 8/30. Mr Chapman could not be sure that a copy existed at the Brompton throughout the period. He certainly could not find it when he looked, and he looked, as he told you, in many departments. In answer to a question from Dr Sarkar at page 31, Mr Chapman said he did not know whether in 1987 the technology was there to input an MRI report onto a computer at that time.
Dr Southall readily admits that the original that we see on page 9 should have been on the hospital main file. He told you that he had no knowledge or explanation of why it was only on the SC file. He fairly conceded that he could not rely on the various inquiries that took place into his practices – those inquiries began in about 1999 – to explain its presence in the SC file because he had already, in 1995, sent it down to the Royal Brompton.
I make seven points on the way the complainants put this issue. First, this was a very important medical record that all agree should have been, at all material times, on the Royal Brompton Hospital records and it was not. Secondly, this original made the journey up to North Staffs where it was eventually unearthed, bearing in mind that Patient A was never a patient at North Staffs. Thirdly, I accept that it may well have got into the SC file by mistake, but, fourthly, the whole concept and idea of the SC files was Dr Southall’s creation and he appears to have used the SC file as a sort of repository for a variety of documentation generated in relation to a particular child.
The fact that this original MRI report, the fact that it was found in the SC file, is, you may think, one of the inevitable consequences of having such an informal parallel filing system about which few knew. It was informal in the sense that there were no written rules or procedures governing what an SC file should contain. It was also a file of which the administration at the Brompton were completely unaware. Only a few people within Dr Southall’s academic department were aware of it and it appears that even fewer had the ability to put items in it.
The fifth point I make. We would submit from the evidence that what went into the SC file was a decision either of Dr Southall or his secretary. The latter either at his specific direction – and we have seen numerous notes in the SC file saying, “File with hospital notes or file with the SC file” – so she either filed it at his specific direction or, we submit, on her own initiative acting on what she understood Dr Southall’s practice to be. If she was acting on her own initiative, we would still submit that she was acting on behalf of Dr Southall and, thus, in the way that the heads of charges are framed, that brings her actions as a responsibility of Dr Southall’s.
Whoever placed that MRI scan into SC file, I would ask you to accept that, in terms of head of charge 10(a), it was either placed there by Dr Southall, or someone, probably his secretary, acting on his behalf.
The sixth point I make in relation to this MRI report is in relation to Dr Southall’s status at the hospital at this time in 1987. It may be useful at this stage, to consider his clinical role as opposed to his research role at the Brompton at the time that Child A was admitted into the Royal Brompton in February 1987. I will not take you to it, but I would ask you to note that the original referral of Child A to the Brompton, was not to Dr Southall but to Dr Warner at the Royal Brompton. The question has been posed, “Why was the referral to Dr Warner…”, a consultant at the Brompton, “Why was the referral to Dr Warner and not to Dr Southall?” The answer came in a letter that Mr Chapman wrote in October 1995. I would ask you to look at that. We see that at C2/3(b) at internal page 20. Madam, that is a letter, as we can see from page 21, from Mr Chapman to the Brompton’s solicitors. It deals with, as we can see from the last three lines of the first paragraph, the professor there mentioned is therefore able to explain the involvement of Dr John Warner in the treatment of Child A and the status of Dr Southall at the time.
“Dr Southall joined the staff of the National Heart and Lung Institute in 1978 as a Lecturer in Paediatrics. In 1982 he was promoted to a Senior Lecturer position. On occasions the NHLI requests honorary consultant status in the Hospital for senior lecturers. This is essential if they are to undertake clinical sessions involving care of patients and it is also beneficial for the purpose of attracting grants for research. In December 1985, the Professor of Paediatrics submitted a request for honorary consultant status in paediatric clinical monitoring for Dr Southall. However, Dr Southall was the only member of the senior medical staff with an interest in that sub-specialty and the Division of Cardiology which was responsibility for paediatrics in the Hospital, could not agree to support such a consultant appointment. It was prepared however to support the appointment without specifying a sub-specialty interest.
The Medical Advisory Committee considered the recommendation in February 1986. It expressed concern over whether Dr Southall had the appropriate expertise for a consistent appointment. A majority recommendation was made to the Board of Governors that Dr Southall should be given honorary consultant status in clinical monitoring, but the appointment should not entail clinical responsibility for patients. The SHA adopted the recommendation in March 1986.”
Madam, that was the position at the time that Child A was admitted. We can see that in the next three lines:
“As a result, Dr Southall was given honorary consultant status, but his patients had to be admitted [under] the direction of another consultant. Hence [Child A] was admitted under the care of Dr John Warner.”
Madam, the position broadly is that it would appear that, at the time of Child A’s admission in January 1985, Dr Southall had no clinical responsibility for patients. This may, and I put it no higher than that, this may help explain why the MRI report appeared in Dr Southall’s own SC file, which he created for the purpose of his academic monitoring and the like, rather than in the child’s hospital medical records.
Madam, can I ask you to look, please, at head of charge 11. Head of charge 11 says:
“The placing, or causing to be placed, by you or on your behalf, of such cited original medical records in an ‘S/C’ File,
(a) Damaged the integrity of the child’s hospital medical records;
(b) Caused any such item to be inaccessible to others involved in the medical care of the child at that time or in the future”.
It is in relation to 11(b), the words I would like to pick up and make some submissions on are, firstly, the words “inaccessible to others”, secondly, the words “at that time”, and, thirdly, the words “in the future”.
Madam, the original MRI written report, we submit, was clearly not available at the time. I say this as the paper original was in the SC file at all material times until a copy of it was sent to Mr Chapman in August 1995. Mr Chapman cannot say whether there was a report – not this report at C9, page 1 – but whether a report was on the hospital computer system. The fact is that he did not unearth a report from the computer system relating to this MRI until November 2006, and that is a letter which he wrote, which you have exhibited as D6. He simply cannot say whether it was inputted on to the computer in 1987, or whether it was later, after 1995, when a paper copy came down from Stoke. Madam, our submission is that in view of the many demands for this particular document, and his many searches over time for this particular document, which was specifically asked for in a way which I will show you on a spreadsheet in a moment, you cannot be satisfied so that you are sure that even the computer report, or the computer generated report, was at the hospital at all material times. So effectively I am saying by that that the possible defence of, “Well, we accept that the written signed original was not in the hospital, but a computer version of it was”, that is not a defence, in my submission, because you cannot be satisfied so that you are sure, or cannot be satisfied at all, that the computer generated report was in fact there throughout.
As far as the words “or in the future” are concerned in 11(b), we would submit that the paper report was not available thereafter or in the future until 1995, when a photocopy of it was sent by Dr Southall to North Staffs, because he had taken the original there.
Madam, I have prepared a spreadsheet relating to the various requests made by Mrs A or her solicitors on her behalf to obtain her medical records, and in particular the MRI scan. This will be, I anticipate, document C20. (Same handed) Madam, you will recall that we heard endless evidence from Mrs A and Mr Chapman about the search for the documents, and I hope to have reduced all that evidence into a few pages of spreadsheet, rather than having to go to the original documentation. As you can see by the headings, first of all there is the date, secondly there is an event, thirdly the bundle reference to the document, then there is a transcript reference when a witness spoke about the matter, and then there is a comment, and the comments, I have to emphasise, are mine.
If we take the third date down, in August 1987, there was a specific request that included a request for the MRI scan report, and we see the reference to that at C2/3(a) at (a). Various other solicitors became involved and requested the records. We can see January 98 that Pannone Blackburn requested the records and they were not received, and other solicitors then in 1991 (Donne Mileham & Haddock) were instructed and they sought the records, and then, in relation to that, over the page, in April 91 an administrator within the Royal Brompton Hospital asked Dr Southall for permission to disclose.
Madam, pausing there, as Dr Southall made clear, and as indeed Professor David made clear, in their respective evidence, when there is a request for disclosure, the reports are put on the desk of the consultant concerned in order to decide whether to disclose or what to disclose within those reports. Each time there is a request for disclosure it comes straight to the consultant in charge. So when he says on occasions, “I give permission for it to be disclosed”, what he has given permission to disclose is that which he was provided with in the first place and asked whether he could disclose. Such permission to disclose did not include permission to disclose any SC files, because that was not what he was asked about. He was asked permission to disclose in relation to the hospital records that were on the main hospital file.
This is made clear on a memo, you will see, where there is a manuscript note on that on 4 April, and Dr Southall stated in evidence that his manuscript note did not indicate permission to disclose an SC file, but we need not go to all of that.
Anyhow, suffice it to say that, as a result of the 1987 request, the MRI scan was not produced. As a result of the 1991 request, the MRI scan was not disclosed. Then solicitors started again in 1994, when the new solicitors Thomson, Snell & Passmore came on the scene, and you see that at the penultimate entry of page 2, and they asked for specific documents, including a request for the MRI, and you can see that the solicitors replied on 22 December (bottom of page 2), “we have no further records”. Then in March 1995, middle of page 3, Mr Chapman wrote to Dr Southall at North Staffs, saying that he was informed that “you may have some records”. So this was the first, as it were, in 1995. Mr Chapman, as we said, he was informed by a Brompton staff member that there was a possibility that some of these child’s records may be at North Staffs, so he wrote to him. As a result of that, at that stage no MRI scan was produced.
The solicitors in June 94 (page 4) told Mrs A’s solicitors that there were no further records. So this was the second time that they had said there were no further records, even though the MRI scan was being asked for. Then a second request was made by Mr Chapman of Dr Southall, that is 19 July 95, and there was a further request whether he had any other records, and the comment I have put in the 19 July 95 box is that Mr Chapman stated in evidence that no MRI report had been found by then and he had been enquiring for it for some two and a half years.
Then we get to the situation where in August 95, top of page 5, Mr Chapman wrote for a third time to Dr Southall about missing records, and it was in the letter of 15 August 95, second entry on page 5, that Southall wrote to Chapman and enclosed medical records from the SC file with the words “ We always kept our own medical records for all the special cases that we dealt with at the Brompton Hospital”, and we have been to that reference before on another occasion, because the words “special cases” had no meaning to Mr Chapman.
It is Mrs A’s evidence that she did not in fact get the MRI report, and she told you that, as we see, three times, but there is a conflict of evidence about that.
Perhaps I can take you to the notes and pick it up at 3: despite [Dr] Southall giving consent in April 91 to the disclosure for the Brompton medical records, this does not produce the SC file as the Brompton Hospital were not aware of the existence of it, and in any event it had gone to North Staffs.
“4. Mr Chapman said that he was not aware what an SC file [was] until around October [93].
5. Mr Chapman confirmed” – and I give the reference there – “in relation to providing medical records to Mrs A or her Solicitors,
a. He had written to Dr Southall to ask him if he had any medical records
b. He had conducted searches in the medical records [department]
c. He has asked National Heart & Lung Institute if there were any records
d. He had asked in the Academic Department of Paediatrics [if there were any records”
And “e” is important:
“All these departments told him that they had no records of an SC file or [any] SC [files] themselves.”
It follows at f that he, Mr Chapman, is unable to produce an SC file to solicitors, and until yesterday he had not ever seen one.
Then there is a conflict of evidence, whether or not it is important to resolve, which I highlight at (6). There is a conflict of evidence as to whether she actually got a copy in October 1995. She said she did not. She explained why she did not, because when she eventually did get it in 2003, I think it is, she immediately told you in great detail (at the reference there mentioned) why it was important that she had not seen it before and why it was a significant document for her as far as the ongoing care of her child was concerned.
Then at (9) I deal with the important questions from Mrs Lloyd that I have sought to highlight earlier. Mr Chapman confirmed (a) that it was the responsibility of Dr Southall’s department to have told him or the medical records library that a special case file existed, that it was the responsibility of North Staffs to tell him or the medical records library that a special case file on Brompton patients existed at North Staffs. He also stated that if North Staffs had no knowledge of the files, he could not see how they could have told the Brompton that they were at North Staffs. Part (b) is the important one. It was the responsibility of the head of department, Dr Southall, to have told the Brompton that he was transferring the Brompton files elsewhere.
The importance of this spreadsheet and the material in it, not only to save time by looking at other documents, goes to head of charge 11(b), about the inaccessibility of the MRI scan, because it is abundantly clear, in our submission, that just as Mrs A and/or her solicitors had enormous difficulties in obtaining this MRI scan, so would any following clinician. Her efforts are indicative of the problems that any subsequent clinician would have.
It is not fanciful that this child would have returned to the Brompton. As you are aware, and you heard from Dr Southall, one of the specialities of the Brompton is paediatric cardiology, and we know, because we have seen from the records (the references C2/3(d)68) that when this child was at Great Ormond Street he was looked at by a paediatric cardiologist. If, as Dr Southall asserts, as it were, “famous hospital shopping” is a feature of MSBP patients, and if, as he considered, the Child A parents had features of MSBP, there must have been a risk, not fanciful, that he would have returned their either for factitious or induced reasons or that he genuinely had a cardiac problem.
Madam, of course, finally there is a further and more fundamental point, namely that the keeping of an original scan report in the SC file damaged the integrity, we would say, of the child’s hospital records at the Brompton.
Taking you to head of charge 10 in relation to Child A, in relation to 10(a) we ask you to find that proved in that it was clear from the admission in D9 that 10(a) was established, and we would submit it is also clear from the evidence that this original hospital medical record was placed, either by Dr Southall or on his behalf for the secretarial reasons that I have outlined.
As far as head 10(b) is concerned, I would ask you to find that proved. The original hospital record that we have at the first page of C9 was, in the terms of head of charge 10, not elsewhere in the child’s hospital medical records.
As far as head 11(a) is concerned, the damaging of the integrity of the child’s medical records, we would say that without the original MRI report being on that child’s hospital records then the integrity of those records was fundamentally damaged. As far as head 11(b) about the inaccessibility to others, I have dealt with that matter in relation to spreadsheets, and the like, to illustrate the inaccessibility.
As far as head of charge 12(a) is concerned, I would ask you to find that proved on this basis. There was clearly a risk that Child A would return and there was clearly a risk that his parents, who had parental responsibility for him, would inquire for the records, either for a second opinion or for medico-legal reasons, or to assist them in any child protection care proceedings. Put it this way, that but for Mrs A’s heroic efforts over the years it is beyond peradventure that this original scan report would still today be lying in North Staffs SC file, bearing in mind this child is a Brompton patient.
As far as inappropriateness is concerned, that follows, in my view. It is clearly inappropriate, and of course it was Dr Southall’s decision to have SC files in the first place that caused all the problems that have been caused, namely the risk – and such risk was activated in this case – that there would be filing of the wrong records in the wrong files.
These files are, we say, shadowy creatures. No-one knows about them really outside Dr Southall’s immediate coterie. No-one was aware, we would say, not only of their existence, but of their contents. We would say – and it is a point I have already made but it is highly material under head of charge 12 – that of course we had no evidence from either the Brompton or North Staffordshire that people, and in particular management, did in fact know about these parallel files.
Further, when considering head of charge 12 we submit that you can take into account that there were some 4,449 of these special cases files, a fact that emerged when one looked at the computer printouts which are the subject of a head of charge. You have heard in detail about four of these special cases files, but I submit you are entitled, when considering head of charge 12, to take into account that you are merely looking at four out of 4,449.
In relation to this child I will now go on to heads of charge 13 and 14. Head of charge 12 is admitted and I draw your attention in particular to the admission of head of charge 13(b), because that admission did not take place on the first day of the hearing but was admitted on Day 9/14. It is an important admission in relation to, you may think, to the MRI report.
As far as head of charge 14 is concerned, I rely on the factors that I have submitted under heads of charge 11 and 12, but I would say the matter is confounded by the fact that not only did this child’s MRI report end up at North Staffs, where he was never treated, but the only reason for that movement up to North Staffs was clinical audit, bearing in mind that this was five years after Child A was a patient at the Brompton. Not only – and these are factors you can take into account on head of charge 14 – did this file end up at North Staffs, carrying with it an original medical record, the MRI report, but it went to North Staffs without the Royal Brompton knowing. This, we submit, was in breach of Dr Southall’s personal duty to tell the Brompton of the fact that he was removing medical files relating to this particular child up to North Staffs. Again, we have the references which I have put out on the spreadsheet, and others, of the evidence elicited by Mrs Lloyd and thereafter by me in relation to this. So for all these additional reasons I would ask you, on behalf of my client Mrs A, to find head of charge 14 proved as far as Child A is concerned.
I now turn to Child B in relation to Appendix 1 and this is, if I can use the shorthand, the Crawley referral letter. The SC file is within C5 and the Appendix 1 matter in relation to this child is at C9, but you may find it more convenient to look at the context of the Crawley referral letter if we can look at the bundle that was created at C17. I would ask you, please, to look at C17. You will recall, and I will come to it, in fact that when Dr Southall looked personally at the original SC file at the hearing he picked up a clip from the SC file which contained a number of faxes, which we ultimately had to examine. That clip is the clip that is at C17.
Before we go into the minutiae of C17, can I say what I submit is established in relation to the heads of charge relating to Child B. First of all, the Crawley referral letter is a original document. It is the original fax by which that came. Secondly, it is a medical record. Thirdly, it is not in the child’s hospital records, and fourthly, it should be in the child’s main hospital records. I derive those four propositions from a combination of D9 and Dr Southall’s answers to me in evidence at D13/27.
Madam, as I said, there were three faxes within the clip that we have at C17 and the important matter is that there was one fax on 2 September and two faxes on
3 September. The fax on 2 September enclosed the Crawley referral letter, and just to remind you by looking at the first fax, the first document in the 2 September fax that we have is page 2 of that, which is the Crawley referral letter (the fourth page of this little clip of C17). We went through this forensic exercise, but if we look at the top right-hand corner we see that this letter, dated 2 September 1993, is page 2 of a fax of 2 September that came through at 4.29 p.m. Page 3 of that, we would say, nine-page fax is the second page of the Crawley referral letter. Page 4 of that nine-page fax you will find is the last two pages of this little clip of C17. Page 4 is the letter to Dr Hyatt from Dr Lewis and we can see it says at the top right-hand corner of the page, “P.4” and “P. 5.” Pages 6 and 7 of this nine-page fax is the letter from Dr Issler, of Greenwich, to Crawley of 17 August 1993, and that is the one that is towards the end that is headed “Paediatric Department” and you can see that that is page 6 and page 7. The last two pages of this nine-page fax on the first day, 2 September, is a letter from Crawley Hospital to the GP, dated 9 August 1993. That we see in the middle of the section, and again at the top right-hand corner we can see that it is pages 8 and 9 of that document.
That was the first fax received by the hospital on 2 September. There was then a second fax received the next day, which consists of two pages, and those two pages are the first two pages on C17. So the cover sheet that we see on the first page of C17 is the next day, as we can see, on September 3 1993, at 12.54 p.m. That, as it says in the fax header itself:
“Number of pages including this page: 2.”
Over the page we can see that it is the next letter, the Atkinson Morley letter, from the neuro radiologist, that was attached with this two page fax.
The third item, and third fax, is three pages on page 3 of C17, which is a transaction report. The destination sender, if I can put it this way, the sender, was the number there listed which Dr Southall told you in evidence was the fax number of his own academic department. He also accepted in evidence that this would be, more likely than not, his academic department sending the neuroradiologist’s report over to the ward. It arrived in his academic department, he is sending it over to the ward. One can see that by the timings because the neuroradiologist’s report arrived at 12.54. We can see that this is an onward transmission of one page at 12.55.
The importance of going through this is to correct an impression, which was initially there, that it was by the first page of this C17, that Dr Southall himself was sending the referral letter to the ward. He did not send the referral letter to the ward by this manuscript, he sent the neuroradiologist’s report to the ward. You cannot rely on the first page of C17 where it says in Dr Southall’s own writing, “—› the hospital notes on ward ASAP” as that is what he was doing in relation to the referral letter. There is a paper chase that he sent the Atkinson Morley letter direct to the hospital notes on the ward, but there is no paper chase, if I can put it that way, or paper trail probably better, saying that those were his instructions in relation to the Crawley referral letter and the nine pages that came with it.
It is accepted that the only place that the Crawley referral letter is and can be found is in the SC file relating to this child. In relation to this Crawley referral letter, Dr Southall accepted that he had the ultimate responsibility for insuring that this letter reached the main hospital records. He accepted that responsibility at Day 13 A D. I apologise that my notes do not give a page, but I will provide a date for that.
Madam, I could stop there and say that he has accepted personal responsibility, therefore I am going to go straight to the individual heads of charge relating to the Crawley letter but, as an advocate and with a duty to the Panel beyond that, I have to say something which is possibly detrimental to my case, but is to be fair to Dr Southall. If we look at the totality of Child B’s SC file, we can see that there are documents at the front of it which indicate that this file has been used and looked at by others, as there is material in the front of the file that clearly does not emanate from Dr Southall and appears to emanate from inquiries into his practice that were subsequently held.
In that context, when you are looking at head of charge 10(a) in relation to the Crawley referral letter, I accept that you have to be satisfied that it was Dr Southall, or someone on his behalf, who placed the Crawley referral letter or clip into the SC file. If you think it was, or might have been, placed there by a third party outwith Dr Southall’s responsibility, then I accept I cannot establish head of charge 10(a) to the requisite standard.
My case, however, is that, whether by accident or otherwise, this referral letter was in fact placed in the SC file either by Dr Southall or by his secretary on his behalf. If you are satisfied as to that, then head of charge 10(a) relating to this charge is satisfied.
Head of charge 10(b) relating to this child is admitted and I would submit head of charge 11(a) is established, broadly for the reasons I set out in relation to the earlier Child A, but, again, they are only established if you are satisfied that the placing of the Crawley referral clip was “placed there by you or on your behalf”. If you are not satisfied by that, I accept head of charge 11 falls.
As far as head of charge 12 is concerned in relation to Child B, I adopt the arguments that I used in relation to Child A. This referral letter is a very important clinical record indeed. If you find that it arrived in the SC file through Dr Southall’s agency, if I can put it that way, I would submit that all subheads of head of charge 12 are established. I have to say, as I keep saying, that the only reason this situation arose in the first place, is because of the informal holding of such a thing as an SC file, parallel records informally being held by Dr Southall in the first place.
I now turn to Appendix 1 and heads of charge 10 to 12 in relation to Child D. Appendix 1 in relation to Child D is enormous, as indeed is Child D’s Special Cases file itself enormous. It is the whole of C6. I need not take you to each and every one of them because, having seen it is enormous and that there is an enormous amount within it, the starting point, as we have seen before, is D9 in relation to this.
D9 establishes, in relation to Child D, my first three questions, if I can put it that way. It establishes that all the correspondence in Appendix 1 is original; it establishes that the patient data form within Appendix 1 is original; and it accepts that all the correspondence and the data form are part of the hospital medical records, and for that the documents are not contained elsewhere in the hospital medical records. Appendix 1 in relation to Child D has some 30 individual hospitals records. We say that all 30 of these items should have been in the child’s medical records at the hospital but were not.
I can deal with it quite globally because 29 of the 30 medical items relate to clinical correspondence that we say should have been in the medical records. I have already addressed you at some length about the question of the clinical correspondence and why clinical correspondence, particularly child protection clinical correspondence, must and should be in the main hospital records. If, and to the extent that there was a “policy” that child protection matters, including clinical correspondence, should be in the SC file, as I remind you, that is not borne out by an examination of letters left in the hospital records. That is C16, and in relation to this child, tab 3. We can see at C16, tab 3, matters, but not extensive matters, in the main hospital file.
We do not see them at C16, but what we do see in the main hospital file relating to this child, are the matters in C2 at tab 4(g) at 611 which is the last document within (g). I am asking the Panel to look at C2, tab 4(g) at 611. Here we have the clinical note made by Dr Southall of a conversation he had with Dr Strobel of the hospital. There we have the main hospital record of matters that are directly concerning FRI matters if I can put it that way. There may be a good reason for that within the “policy” of Dr Southall in that this is a matter that arose at admission. His policy was post admission matters should be placed in the SC file. But, post admission we see at (i) in the medical records, a report prepared by Dr Southall on this child who left the hospital in December 1994. Here is a report in April 1995 on this child in the main hospital records, that is, as it were, destructive, if I can put it this way, of my client, Mrs D’s, credibility. One gets a flavour of the destruction on the first page at 259 at the fourth sentence of the first paragraph. She apparently is a trained nurse possessing an RGN qualification. That gives you the tone of the letter. We see at the end of this report at page 268 the last paragraph on the 5 December 19:
“On 15 December 1994 I had a discussion with Professor Strobel, he agreed that mum was exaggerating symptoms and in his opinion this was an example of fabricated illness. It was agreed that a Social Services strategy meeting should be established.”
This is in the child’s hospital medical records. At the same time, in relation to this child and in relation to the twenty nine items of correspondence, Dr Southall is asking you to accept that he had a rigorous policy that all post admission child protection documents should be in the SC file. The existence of this April 1999 report setting out child protection matters, mentioning fabricated illness, mentioning strategy meetings in the main medical records, post discharge, which of itself destroys, in our submission, any justification for all the original letters in the SC file being in the SC file and not where they belonged in the main hospital records. If you are going to have a policy you are going to be consistent. You either have a policy or you do not have a policy. If your policy is that all post admission child protection matters should be in the SC file, why is it you have a damming document relating to child protection, post admission, namely your own report, in the main hospital records. It simply does not make sense.
Again, in relation to the twenty nine items of correspondence in Appendix 1 relating to Child D, I remind you that the other clinicians, either in receipt of it or obtaining copies of this correspondence, themselves filed it in their own hospital records, one hundred per cent in terms of Professor Strobel from Great Ormond Street, and in all but two in relation to Professor Warner from Southampton.
Again, in relation to this correspondence generally, when you retire I would ask you to read Professor David’s report where he analyses this correspondence and the contents of this correspondence, and in relation to incoming correspondence he analyses that at his second report, which is C3 at paragraph 68 onwards to 76. At paragraph 77 he looks at the copy letters, which is my second heading in Appendix 1, “original copies of letters between third parties”. He does that from paragraph 77-87, and then a big gap with a number of pages to paragraph 89. Then he deals with outgoing correspondence, which is the third category in Appendix 3 at paragraphs 103-117. He looks at each letter, sets it up against the apparent policy and discusses the policy and argues why it is not a policy. I cannot really improve on that, so I just rely on the paper.
Madam, a further point I make in relation to this correspondence, and you will see it, and doubtless have seen it, is that there are manuscript markings on it by Dr Southall on a number of the letters. I will take you to them in a moment. My proposition is that Dr Southall is an intelligent man, and if in his own handwriting he says “file”, that means hospital file, and if in his own handwriting he says “SC file”, it means go to the SC file, and if he says “file with SC and hospital notes”, that is precisely what it means. I will just give you the references. If you look at the SC file in relation to this child, which is at C6, or if you look at the crib, if I can put it this way, in C9, you will find that on most of the correspondence in relation to that, Dr Southall has put some manuscript note as to where this correspondence should go. In relation to the majority he has put the word “file”, indicating, as we would suggest is obvious, that these important clinical correspondence should in fact go into the main hospital file, and each time he has put “file” in his own manuscript someone has written the hospital number on that.
Let me give you an example of what I am talking about, and if we look at the SC file in relation to this child, which is C6 and for instance at 273, 273 is a letter within Appendix 1 (in fact it is item 2(a) in Appendix 1), and Dr Southall’s manuscript is the word “file” there, and somebody else’s manuscript, and I will be corrected if I am wrong but my understanding was that it was his secretary’s manuscript, the numbers at the top “L22C43”, and that is the child’s hospital record number. So in my submission what Dr Southall there is saying is “file”, and loyally his secretary, or whatever, is putting the main hospital record file on that, and there is where it should be. An example, just a few pages further in at 264 is another example of that; and at 214 is another example of that . Madam, in my submission, “file” means what it says. “File” means file in the medical records. That is how it has been taken by the secretary and that is why on each occasion the number is written on there.
Madam, just for the sake of your notes can I say the word “file” appears at page 275, 273, 264, 214, 208, 76, 75, 25, 16, 9 and 2.
In contradistinction I would ask you to look at page 229. This is letter 1(f) in Appendix 1. Here it is clearly in Dr Southall’s handwriting that this document has got to go to the SC file, and the document, as you can see, is the chronology prepared by Dr Whiting, and we pick up that chronology at page 231 all the way through to 244. So the chronology which does obtain numerous matters that would raise suspicions of exaggerated or induced illness in this concern he has specifically put “SC file” in, but all matters effectively of clinical correspondence, apart from that, he has marked “file”, and that must, in my respectful submission, concur with what Professor David is saying, that clinical correspondence between consultants relating to the care of a child should always be in the main hospital records. It concurs with what all the other consultants involved in this case were doing, namely putting their stuff in the hospital medical records. It should have been what happened here, because that is what Professor Southall is saying, he is saying “file”, but he seeks to justify this matter by saying it was in accordance with his policy. He could have produced a defence to you saying, “Look, this should not be in the SC file. Look, I have marked it ‘file’, it has been misfiled by somebody contrary to my instructions”. That is not what he is saying. He is saying that “Despite the fact I put the word ‘file’ here, it was appropriately filed in the SC file”.
Madam, that might be a convenient time.
THE CHAIRMAN: Thank you, Mr Tyson. Yes, if you have reached a convenient point, we will take a lunch break until two o'clock. Thank you.
(Luncheon adjournment)
THE CHAIRMAN: Good afternoon, Mr Tyson. Do you wish to continue now.
MR TYSON: I wish to. Whether you want to hear it is another matter.
Madam, I was dealing with Child D and the Appendix 1 matters relating to Child D, and I had been making submissions to you on the clinical correspondence aspect within Appendix 1, and the last point I was making to you was the point about what Dr Southall said at the time should happen to these records and what he is now saying should happen to them. On the one hand we have said on the documents themselves is written “file” and on the other hand today he is telling us it was a policy that they should be in the SC files only.
Madam, there is one other item in Appendix 1 relating to this child, and that is item 4, the patient’s data form. That is at page 313 of the Appendix of C6, just so that we can remind ourselves what it looks like. Madam, we will come to this document, or something very like it, in due course in another context, but suffice it to say that that document was in this child’s SC file and not in this child’s medical records, where we submit it should be. Relying on the admissions document at D9, can I submit in relation to this document (1) that it is an original hospital medical record; (2) it is not found in the hospital medical records; (3) it is only to be found in this SC file.
Madam, dealing with Child D generally, and dealing with the heads of charge, can I take you to head of charge 10(a) in relation to this child. As far as 10(a) is concerned relating to this child, in my respectful submission you are driven to finding 10(a) proved here because Dr Southall relied on his “policy”, that, as a matter of policy and his instruction, all the correspondence did in fact go into the SC file. Again, as a result of that policy, 10(b) is proved and indeed it is admitted in D9.
As far as 11(a) and 11(b) are concerned, again I rely on the submissions I made on head of charge 11 in respect of the previous children on whom I have made submissions, namely A and B.
As far as head of charge 12(a), (b) and © are concerned, I have this to say: I ask you to find it proved. Dr Southall positively asserted that he had this policy that all matters relating to child protection should be in the records in the SC file. You will recall, madam, the Hempsons’ letter. Can I just remind you of that. It is C2, tab 6 at ©. It is the last tab and the last document in C2. Can I take you to page 12 and the first main paragraph in there. The first paragraph says:
“When Professor Southall started dealing with child protection cases, he set up a protocol at the Brompton Hospital and then at North Staffordshire Hospital regarding how he would deal with the confidential documents that arose in child protection proceedings. Whilst it was agreed that in the normal course of events all documents relating to a patient should be filed in the hospital records and be available to the parents, it was considered that this was not appropriate where there were child protection concerns.”
Can I ask you to reflect, madam, on the word “protocol” - “When Professor Southall started dealing with child protection cases, he set up a protocol”. Madam, you may recall that I asked him in cross-examination “Where is the protocol?”, and he gave the rather startling answer, you may think, that the protocol was oral, it was not in any document, it was an oral protocol. What is more, that protocol upon which he relies at the first paragraph of page 12 of the Hempsons’ letter does not follow the protocol that we do know that exists in relation to his own hospital, and in relation to a document which he himself had a hand in drafting, namely the 1997 protocol, which I referred to in C19, which is the January 1997 document, which is the North Staffordshire NHS Trust Child Protection Policy and Procedures. That policy, as you will recall, states that when parents have been informed of concerns regarding child protection - and in the Appendix 1 matters, in the correspondence, at the time that that correspondence was produced the parents, as it were, had been informed - all information should be recorded in the nursing and medical notes. So the oral policy which he asserts at paragraph 12 is in contradistinction with the written policy of his own hospital, drafted by him, which is in the 1997 document, or drafted in part by him, to be fair.
The “policy” is, as I keep saying, irrational, because by that time, to use Professor David’s phrase, the cat is out of the bag. No better example of this occurs than in the SC file itself relating to this child, because you will note, for example, that when Professor Warner would be writing about this child – and I am not seeking to make a bad point – to the various people, he also included in his correspondence the mother herself. An example of that we can see, for instance, at C6, page 25. This is a letter which is in the SC file at 2H, and that is a letter from Professor Warner at Southampton to the GP and he copies into it Professor Strobel, Professor Southall, another paediatrician, social services and the mother. He does that, so the confidentiality is gone, the cat is out of the bag, the policy is irrational and not in the best interests of the child. Professor David’s second report at paragraphs 75 and 76 are, in my submission, vital on that.
Madam, just as in Child A, dealing with head of charge 11(b), there is an inaccessibility issue here, because Mrs D sought her SC file from October 1997 and did not obtain it until 2003. If I can give you the next C number, which I anticipate is going to be 21, that is Mrs D’s search for medical records. (Document so marked and handed to the members of the Panel)
There is a short dispute that arises out of this. One can see in November 1997 Mrs D is writing to North Staffs referring, in particular, to the code SC3874. She indicated to you that having gone through such notes as she had she saw this number somewhere, and therefore asked for a file in relation to it. She renewed that as part of her general complaint against the hospital and there is a document, which we see on 20 January 1998 – I will not take you to it – which sets out a number of complaints. In particular, in paragraph 14 of that document she said that the medical record is incomplete without the SC file, and at paragraph 15 she queries whether in fact the North Staffs authorities knew about the SC file.
North Staffs temporise and eventually give her some documents from it on 30 March 1998. She takes the matter to the Ombudsman in January 1999. She carries on pressing North Staffs to provide the SC file. We see on page 2, in the middle of the page, that there is an internal letter on 16 April which Professor Southall provided to the North Staffs manager, with the SC file. In that letter he described SC files as “part of social services and other hospital records.” He amplified that, as you can see, that when he talked about “other hospital records” he talked about “records in other hospitals”, if I can put it that way, rather than other records within the hospital.
Anyway, Mrs D chased on, if I can put it that way, and finally we can see on page 3 she got access to the SC file through her civil claim solicitors.
Madam, the point I want to seek to make about this spreadsheet is not Dr Southall’s own personal role in this unremitting search for documents, but the more important point is that it would appear that the North Staffs management themselves were not aware of the existence of this file until 1998, when they gave Mrs D access to some of it. This shows, in my submission, the danger of having these shadowy parallel files where even in North Staffs, where the doctor was working at the time, it appears that the management was not aware of either the existence or the contents of SC files. We have no positive evidence that they did, and it is merely an irrebutable assumption of mine that I am making.
Can I turn to head of charge 12 in relation to Mrs D, and may I first make a general point? Dr Southall repeatedly told us that there was no harm caused or likely to be caused by having child protection material in the SC files as, to quote him, “the child would never return”, either to the Royal Brompton or to North Staffs. He coupled that assertion by further stating in evidence that if a child did return, then everybody would know about his involvement and clinicians could ring him up and find out more if they wanted to.
Again, in the context of head of charge 12, I submit to you that those are thoroughly bad points. They do not meet the integrity of medical records argument. These children were sick children and there was always a possibility that they could end up back at such hospitals with either respiratory or cardiac problems.
The third point I wish to make is the “car crash” point, if I can call it that. There was always a risk that these children would return to say, North Staffordshire, which I understand (but people know better than me) is quite near the M6, and that the child could be admitted there and nothing would be known about the background.
The records – and this is a very important point about head of charge 12 – in my submission, without knowing what is in the SC files, are potentially misleading. If we look at Child D, who we are now considering, we can see that the admission note is that this child was admitted with two things: (1) low body temperature, and
(2) multiple allergies. That is at C3/4(g), page 601. The last note in the hospital records is a note, as we have seen, that Dr Southall says that this is an example of fabricated illness and the mother is exaggerating the symptoms, and moreover that a consultant at Great Ormond Street who was dealing with the child for the allergies agrees with Dr Southall. So the reader of the clinical records, bearing in mind that also in the clinical records is the report from Dr Southall at C3/4(i), sees that again that report mentions, effectively, that this is a Munchausen’s case. That is the impression that you are left with if you look in the clinical medical records.
Their integrity, we would submit, is destroyed and they are misleading, in that subsequent letters only in the SC file show that indeed the child was suffering from very severe allergies, and that is the view of Dr Warner, to whom Dr Southall had referred the child. Pausing there a moment, there is no mention of such a referral in the hospital records. The only way that we can get the referral is by looking at the SC file.
Can I take you, please, to the SC file in relation to this child, which is at C6, and take you to the referral which is at page 305 in C6? (This is an Appendix 1 letter and it is at 3A). You will see that here Dr Southall is referring Child D to Professor Warner and stating, in the middle:
“However, it is my own view that this is an example of factitious illness on top of an existing medical problem.”
Then we have the result, which we see in the same C6 at page 70, which is
Dr Warner’s report, having done his investigations, wherein his report he says:
“Diagnosis: 1. Extensive and severe allergies
2. Asthma
3. Episodes of acute angio oedema, urticaria and anaphylaxis.”
You will see at the bottom of page 71:
“On present evidence I have no doubt that [Child D] has extremely severe allergic problems”,
and further up the page that he finds the child delightful and very communicative and the like, and he effectively finds, you may think, no evidence of exaggeration or FII at all. This child is a genuine, extremely severe allergic.
The point I am trying to make is that if a following clinician at North Staffordshire Hospital only had access to the medical records, he would have noted Professor Southall’s view casting doubt on the severity of the allergies and making comments that there was an element of inducement or fabrication about them. Only in the SC file does one get to the truth, that upon investigation these allergies were found to be extremely severe and in fact true.
The whole picture relating to this child, the whole integrity of the medical records, is destroyed by having this clinical correspondence in relation to Child D in the SC file only. It follows, in my submission, that there would be a danger to this child or risk of a danger to this child were he to be readmitted for any reason at North Staffs, because an incomplete medical picture relating to this child was on the medical records only, and a complete picture and true picture was buried away in the SC files and SC files only.
Two further points on head of charge 12 in relation to Child D. Dealing again with the concept set out loud and clear by Professor Southall is that the child will never return. First of all, there is an inconsistency in that argument because, as we will see later when we come to Child H, the child did in fact return, or the recordings relating to the child did in fact return in the circumstances we will deal with later. Secondly, in relation to “the child will never return”, you may recall the evidence (Day 15/52B) where Dr Southall said this:
“… these patients come in and out frequently. They might come in with apnoeic episodes, they resolve, they go home – they keep coming backwards and forwards.”
So with one breath he is saying these children never come back and in the next breath, on Day 15, he is saying they are coming back and forth the whole time.
Finally, on head of charge 12 in relation to Child A – and it relates in fact to all the children in relation to head of charge 12(a) to © – it is simply not an answer, we would submit, for lacunas in the hospital medical records for Dr Southall to rely on the fact that, “If they wanted to find me, they could call me and I would let them know.” That is an absurd response, you may think. It damages the integrity of the medical records. It depends upon his personal availability, and as we know, because we heard in relation to some answers he gave, at various times he himself was out of the country doing various good works elsewhere.
Madam, finally on Appendix 1 can I come to Child H? You can put away the documents for Child D. Looking at Appendix 1 in relation to Child H, there are, I submit, three different categories of documents we are talking about here. The first category contains the first item in Appendix 1 relating to Child H, which is the collection of clinical data form. That is in a species by itself. The second is the Dr Samuels’ note, if I can put it that way. That is in a category by itself. Thirdly, there is some clinical correspondence in there which is a third category by itself.
I will deal with the matter separately as a result. First, in respect of what I have to prove and what is admitted, we can see in relation to Child H and Appendix 1, from D9, the following propositions. First, it is accepted that all the Child H documents in Appendix 1 are all originals. Secondly, it is accepted that they can only be found in the SC file. Thirdly, it is accepted that, save for the Samuels’ note, all are hospital medical records.
I turn to the clinical data form. Just to remind you what it is, perhaps the best way of looking at it is if for you to look at C9, towards the very end of C9, about ten to fifteen pages in on page 25. Alternatively, I can take you to the SC file relating to this child. You can see it goes from pages 25 to 31 and contains clinical data relating to Child H. Professor David commented on that particular document. The reference is C1, tab 7(b), paragraph 141. He described the data here as well in excess of material routinely recorded in a paediatric department and contains unique medical information about the child which thus should be in the child’s hospital medical records. There is thus, in his opinion and in my submission, no good reason for it not being in the hospital medical record but only to be found in the SC file. Dr Southall explained its presence only in the SC file as justified principally on clinical audit grounds.
However, you may think that he rather destroyed his own case where he told you at Day13/37H that it would be helpful information for any subsequent clinician if this child re attended with possible airway obstruction problems. In relation to this document, Dr Southall himself is conceding, we submit, that it would be useful, or helpful to use his words, if this matter was available in the original medical records in case this child re attended. In relation to that document, I would ask you to find the various matters proved.
May I turn to Dr Samuels’ note. We will come to this note in another context shortly in a short period of time. It is in C9 as a document immediately after the patient data form we have been looking at. It is elsewhere in your records, but this is one of the places where you can find it. It is C9 about five pages in from the back with a page “20” at the bottom. The first thing I say about this note is that we were told by Dr Southall that this note was written by his colleague, Dr Samuels. First, and the most important point I wish to make about this note, we have not had the benefit of Dr Samuels’ evidence before us to help explain Dr Southall’s contention that this note is not a hospital record. We would submit that this is a clinical note and the overwhelming evidence is that that is precisely what it is. It is a clinical note recording matters with this child or, in particular, his parents. Without more, of course it should be in the hospital medical records as a hospital medical record.
We can go through the note in some detail later, but can I go through the history to set the scene. Child H was admitted for the second time to the Brompton Hospital for overnight monitoring in March 1990. If we turn to the last document in C1, tab 2 (d), page 6, we see that the child was admitted on 15 March 1990, which was a routine admission for overnight monitoring under the care of Dr Southall. If you turn to page 10, which is the last page in C1, you will see, on 16 March, the clerking note saying that the child had a good night without a problem and that the matter was discussed with MS, which I submit, and I think Dr Southall accepted, is that the matter was going to be discussed with Martin Samuels. What I cannot say from that, and do not seek to say, is whether the Houseman was going to discuss the matter with Dr Samuels, or the parents were going to discuss the matter with Dr Samuels. The fact that there was a meeting with the parents on 16 March is made clear beyond peradventure by the nursing card index which one sees right in the front of C2, at the first tab in C2 at tab (e). I have abandoned C1. We can see at C2, the one document in there, which is listed at the bottom page 60, the nursing record in relation to this child for 16 March 1990, about him sleeping well, and then pm:
“Up and about all care given by parents. S/B [seen by] Dr Samuels. To go home with PCO2 monitor.”
So it is recorded in the notes that on that day, on the 16 March, he, the child, saw Dr Samuels. It is also clear that he saw no other doctor that day.
Would you now turn to (h) within C2 to the note which, although it is in C2, I emphasise it was not in the original medical records. It has been inserted into C2 to follow the history. This note, we submit, should have been in the hospital medical records. Just to indicate to the Panel, it is Dr Southall’s team’s contention that this is not a hospital medical record; a contention, I have to say, on this side that we find astonishing, not least in that this document records a unique matter not mentioned anywhere else in the clinical notes, namely what the parental view was about the situation on 16 March 1990. W0e can see the parental view recorded there in between the two punch holes, setting out what the parents’ view about their child was.
I submit that this is a classic clinical medical record setting out what, amongst other things, the parental view about the child was at that time and the sole, and only place for this document was in the child’s hospital medical records. That is the firm view also of Professor David who deals with the matter at paragraph 148 of his second report. It was also the view of Dr Southall that this was a clinical note.
I take you to the Hempsons’ letter. The Hempsons’ letter is in the same C2 we are looking at. It is the last document under the last tab, C2, tab 6©. Within © I would ask you to turn to page 19 at the top. This is the explanation being given in January 2006 by Dr Southall’s solicitors on his behalf. At the bottom, “Manuscript Clinical Entry”:
“This document looks like an original. It is a note made by Dr Samuels, I think it is the note made by Dr Samuels on 16 March 1990 when he reviewed Child H prior to discharge (see page 60 of the Brompton Hospital nursing records).”
I took you to page 60 of the Brompton Hospital nursing records. The clear indication from that response is that Dr Southall is accepting that it is a clinical record made by Dr Samuels when he reviewed the child on 16 March. It would appear that it is being asserted now that this is not a hospital clinical record, it is does not contain, as it were, unique medical matters about the child, which I would deny because it does contain unique medical matters, namely what the parental view was. I understand it to be asserted that this was some sort of aide memoire to Dr Southall for him to write the subsequent clinical letter about the child.
I would say this about that: clinicians are always writing medical letters. To write those letters they look at matters in the medical file relating to them. This is just such a note that any doctor could refer to in writing a letter. There is nothing necessarily different about this document to any other clinical entry in the medical records upon which a consultant writing a subsequent letter wishes to rely. The mere fact that this note may have been followed in a clinical letter, thereafter written by Dr Southall, does not make this document not a clinical record. It clearly is a clinical record relating to this child, containing unique information and should have been in the hospital medical records but was not.
I would now look at the third area in Appendix 1 relating to Child H, which is some clinical correspondence not in the hospital notes. They are, or should be, the last few letters in the bundle C9. Madam, the first letter is the letter with page 48 on it, which is about the fifth letter in from the end of C9, right at the end. It has got 48 at the bottom. Madam, this letter is a letter in response to Dr Southall from Dr Dinwiddie in response to, if I can put it this way, the unnamed paediatrician letter. The unnamed paediatrician letter was written in 1990 and we can see it at C2 at (i) and it is dated 22 March 1990. The original letter of 22 March 1990 is in the medical records, and for some bizarre reason, we would say, the answer to that letter, the acknowledgement of that letter from Dr Dinwiddie at Great Ormond Street, is found in the SC file for no good reason. It is clearly a clinical letter relating to the clinical care at this time, thanking him very much about his recommendations. It is deliberately in the SC file because that is Dr Southall’s writing on it; it says it specifically should go into that file.
Its “child protection” reason for it being in the SC file does not hold water because this child was admitted to Brompton with child protection concerns, and you will recall that the admission letter in this case had the manuscript words to the effect “Munchausen’s has been considered”.
In relation to the other items of correspondence, you will see that item 4 was three letters from or to Dr Weaver. They are right at the back of C9. They are the letters at page 53, which is about the fourth letter in from the back, which Dr Southall again marked deliberately into the SC file, and it contained, in Professor David’s view, important clinical information, not least that the local paediatrician Dr Weaver was having difficulty seeing the child. The next letter, at page 55, again has important clinical information in it, not least that the child is dyspraxic, and we see that in the middle of the third paragraph, and we see the SC number at the top right hand corner here written in manuscript. The last letter at page 332 between Weaver and Southall again contains important clinical information, in particular how the child was getting on by that date in October 1992, and dealing in particular with the tracheostomy site. You will see that this child at one time had a tracheostomy, where his breathing was assisted through his neck, and that tracheostomy had been removed. So the Weaver correspondence, if I can put it this way, contains important clinical information about this child and should, in our submission, have been in the main file and not in the SC file.
The final matter in this bit of correspondence is the manuscript letter that you see at page 114, which is the penultimate page in C9, and this is a letter written by Dr Matteas to Dr Southall in 1991, where Dr Southall has written on there “S/C file”, but when we re-looked at the matter, when I was cross-examining him, he did concede at Day 13/43G that this was a hospital medical record and should not have been in the SC file, and that he should not have put “S/C file” on this letter because it relates to monitoring that was being done on this child, the physical machines were being applied to this child in Wales but the tapes were being analysed by Dr Southall at Brompton. So we have Dr Southall’s admission in relation to this document that it should not have been in the SC file and he should not have written those words on it.
So, madam, in relation to head of charge 10(a) in relation to Child H, I would ask you to find that proved, and in particular to make a particular finding in so doing that the Dr Samuels’ manuscript note is in fact a medical record.
10(b) in relation to this child, you may think, is admitted in view of the admissions in D9.
As far as 11(a) is concerned, it is quite clear that the placing or causing to be placed of such records was, if I can put it this way, at the hands of Dr Southall.
There are three categories of document, as I said: in the collection of clinical data that he asserted ought to have been in the SC file, and we say should not; in relation to the Martin Samuels’ document, my submission to you is that it was in the SC file at the hands of Dr Southall because he was the last person who had it, if I can put it this way. He relied upon it, as he told us in evidence, to draft the unnamed paediatrician letter, if I can put it that way. So he had it, he was using it, he was it would appear the last person to have it, and it was his responsibility, I would say, and I would submit, that he, or someone on his behalf, was responsible for that document coming into the SC file as opposed to the proper hospital records.
As far as the third aspect of Appendix 1 and 11 is concerned, that the collection of correspondence was deliberately placed in the SC file and wrongly deliberately placed by Dr Southall, and wrongly so placed, in our submission, and that wrong placement in relation to one of the items of correspondence, the Matteas letter, is conceded by Dr Southall.
As far as 11(b) is concerned, here we come to the inaccessibility arguments. I make two points about inaccessibility. Firstly, as we have seen, Child H did come back to be considered at the Brompton Hospital after the March 1990 admission. That is clear from the document that I have just shown to you, which is the Matteas letter, which is in the SC file, with 114 at the bottom, and we can see that in July 1991 consideration of this child did in fact return to the hospital, the importance of that being the contradistinction to Dr Samuels’ assertions that they never come back.
The second matter to deal with as far as inaccessibility is concerned again I have reduced to a spreadsheet to show Mrs H’s various searches for the SC file in relation to her child, and this I anticipate will be C22. (Same handed) Madam, we can see that a request was made in November 91 for the child’s records, and we can see that in November 91 under the second entry that Dr Southall consented to the medical records going, but, as we can see in my comments column, under the transcript entry for that, Dr Southall states his consent to records held was to those held by the records department and not to the SC file.
The matter was resumed in July 94, when there was a further search for these records, and Dr Southall was written to, I think, on about three times by Mr Chapman, asking if he had any such records in this period, and the simple answer to that, as we can see at page 2 at the top, that he never got a reply in 1994 to his various requests.
Then we can see that the matter was being pressed, and there came a time, at the bottom of page 2, that Dr Southall wrote to the local authority, who presumably were involved in this matter, saying in February 95 that “subsequent to the move from Brompton to North Staffs we can find no trace of relevant paperwork on this family”. We can see by my comments, picking it up at the bottom line of page 2:
“Dr S agrees he did not tell Chapman there was an S/C file ….. and that there were no tracer cards or the like in the Brompton records to indicate that there was a [parallel] file and thus [the] parents got incomplete medical records on the precise issue he was asked to advise upon”.
The references to that are all there. Then mother tries, five years on, to go to North Staffs to try and find the records, and continues that, and we see the important entry at the bottom of page 3 of 6 May 2000, Mr Chapman wrote to Mrs H about the number which she had found somewhere, and he said, as I record on the right hand side:
“I am sorry to say that I do not know what this number refers to”.
The evidence of Mr Chapman at the top of page 4 on this, that he was not aware of SC files at that time. Suffice it to say that in March 2001 the North Staffs confirmed they had an SC file, she having been in touch with them, and there was a dispute about how much she was entitled from it, and eventually she got something.
The point about this diligent search from 91 to 2002 by Mrs H is that, and I say in the notes under note 1:
“Mrs H or her Solicitors requested H’s medical records in 1991, 1994 and 2000 and on none of those occasions received the SC file. Mr Chapman confirmed that he would have disclosed in 1994 all he had at Brompton..
2. Dr Southall’s consent to the disclosure of the records of no effect as Records Department had no idea there was such a file as the SC file to disclose – as he did not tell them”.
She did receive an SC file, entirely as a result of her own efforts. I make the point here at paragraphs 6, 7 and 8, and the Mrs Lloyd matter at paragraph 7 I have dealt with in relation to another spreadsheet, and paragraph 8:
“But for Mrs H’s efforts the S/C file would still be at North Staffs, its contents unknown, and despite the fact that Child H was not a North Staffs patient.”
Madam, as in all the other spreadsheets relating to accessibility that I have shown you, it shows that a diligent parent with well informed clinical negligence specialist solicitors had been trying to get the SC file out of a combination of Royal Brompton and ultimately North Staffs; the point I seek to make is it took a huge amount of effort to get anywhere. Eventually it was achieved, some access to the SC file was obtained by Mrs H, but entirely as a result of her own efforts over a very long period of time. If we think that you are a subsequent clinician, have you got the time or the energy or the knowledge to think, “There must be another file about this child somewhere. I wonder where it is, and I wonder what it says, and I wonder what it is called?”
Madam, that is all I need to say about the Appendix 1 matters in relation to this child, Child H, but if course head of charge 13 and 14 also apply in relation to Child H.
I rely on the same broad submissions that I made in relation to child A as to why it was wrong for the Child A and H’s Brompton records to end up at North Staffs. The fact that those records ended up at North Staffs, you may think, would create almost insuperable problems for the child were he to be readmitted at the Brompton, where he originally came from. Again, there are what I call the Mrs Lloyd matters. He had no permission to take the records out of the Royal Brompton.
Now I turn to another area completely, which is in relation to the computer records in relation to the children and here we have to look at head of charge 15 and 16 and Appendix 2 and C1. Perhaps I can remind you what head of charge 15 and 16 say. Head of charge 15 says:
“a. On the computer system held at the Academic Department of Paediatrics, North Staffordshire Hospital you maintained, or caused to be maintained, the medical records set out in Appendix 2,
b. These computer medical records are not contained in children’s hospital medical records at either the Royal Brompton Hospital (for Child A and Child H) or the North Staffordshire Hospital (for Child D and Child B)”,
and then ©, which is admitted,
“Neither Child A nor Child H were treated at the North Staffordshire Hospital, but only at the Royal Brompton Hospital.”
Head of charge 16 says:
“Your actions as set out in paragraph 15. above,
a. Were not in the best interests of the individual children,
b. Amounted to keeping secret medical records on them,
c. Were inappropriate,
d. Were an abuse of your professional position.”
Then in Appendix 2 I set out the documents relied on to establish those two heads of charge and they have been put into a slim volume of documents at C10. I am not going to go to this matter in any great detail because I do not have to.
Can I make some basic propositions as basic facts? The first proposition is that all the documents in C10 are admitted to be medical records, and Dr Southall so admitted on Day 13/45H. Secondly, he also admitted that in that form they are not contained in the hospital medical records, and he said that at Day 13/46A and B. I need to rescue him from that global admission because one of the documents here is in fact in the child’s original hospital medical records. I refer to page 13, which is from the recordings database relating to Child B. That computer printout in that sort of form is in the child’s hospital medical notes at, for your record, C2/5© at page 3. So when you come to making your determination I am afraid that in relation to your findings under head of charge 15(b) I would ask you to, as it were, add or make reliance on the fact that in relation to Child B I cannot say that document 13 is not contained in the hospital medical records, because it plainly was. That is the only one, but there was one. So one could say it, as it were, in a form of words, to end:
“… North Staffordshire Hospital (for Child D and Child B) (save for the document shown at C10, page 13)”,
or something like that. I am not seeking a finding adverse to Dr Southall in respect of a document which quite plainly is in the original hospital medical records.
There are nine submissions that I seek to make on the computer aspects of this case. The first of them is that the fact of stand alone computer data records being held on these children was not disclosed.
THE CHAIRMAN: Mr Tyson, I am just wondering if you have got nine submissions, whether it might be appropriate to take a break now rather than later?
MR TYSON: I personally would be fully in favour of that.
THE CHAIRMAN: Thank you, the you can begin again with your list of nine points. It is currently about twenty past three, so if we take a twenty-minute break now that means we will re-start about twenty to four, which will give us a little over an hour after tea.
MR TYSON: I anticipate I may be able to deal with one of the findings of fact matters about the corridor incident in relation to Mrs D, and that might be a convenient point to end. I would like to have dealt with something in whole, as it were, before I move to something else.
THE CHAIRMAN: You anticipate finishing the computer records and you might be able to do one of the other points.
MR TYSON: I may be able to do heads of charge 17 and 18 in relation to Mrs D.
THE CHAIRMAN: Alternatively we could leave that and start it tomorrow.
MR TYSON: Alternatively we can leave that.
THE CHAIRMAN: I was going to ask you – I imagine you know how far you have got through your notes – what your current forecast is.
MR TYSON: My current forecast is that I would finish by tomorrow lunchtime, or before.
THE CHAIRMAN: Without difficulty.
MR TYSON: Without difficulty.
THE CHAIRMAN: Thank you. I think the Panel find that quite helpful to know that. We will take a break.
(The Panel adjourned for a short time)
(Following a discussion on room temperature)
MR TYSON: Madam, could I start by a second apology, that when making my submissions under the SC files and Appendix 1 I turned over two pages at once. There is one matter I would like to address you on, on head of charge 12, about the SC files, and it is a global matter. It is a simple proposition really, and it is this, that in our submission looking at head of charge 12 the integrity of hospital medical records does not and should not depend on an individual clinician’s view as to whether a child will or will not return.
The second and related point I would make is that the integrity of hospital medical records does not and should not depend whether or not the clinical correspondence that arises from such an admission contains child protection concerns. You get my bullet points. It will all be put in the right order.
Turning to the computer matters, and in particular the heads of charge 15 and 16 and C10, I said that there were nine broad concerns or nine essential submissions to be made about the C10 matters. The first is that the fact that stand alone computer data records were being held was not disclosed and printouts from such records were not produced by either hospital when either the patients or their lawyers sought them. So, when there was a general request for records there was no coming back to say that there are some stand alone computer records held by Dr Southall in his academic department.
I make the same point that the fact of stand alone computer records and/or printouts from them were not produced by either hospital when Field Fisher Waterhouse, in preparation of this case, wrote to all the hospitals asking for their records on each child. The existence of these stand along computer data records on the child patients with whom you are concerned only came to light shortly before the last hearing, when my instructing solicitor had an inkling that such records may exist and she set out the process by which she got them in her statement, which is at C8.
I am in the middle of my third point. It was only in October 2006 that my instructing solicitor received computer printouts relating to Child D, Child H and Child A, and it was only in October 2006, just before the hearing itself, that she obtained computer printouts relating to Child B. You will recall or may recall that she said in her statement that she actually went to North Staffordshire Hospital and she and the representative from Hempsons and Dr Southall got together and they personally interrogated the stand alone computer.
These computer records and the data there are stored in Professor Southall’s own stand alone computer. It was a stand alone computer at the Brompton and it was a stand alone computer at North Staffs, and what I mean by “stand alone” is that on neither location was this computer connected to the hospital’s main computer.
The fifth point I make in this was that access to the data in this stand alone computer was extremely limited. I think it was limited to Dr Southall, Dr Samuels, a nurse and a technician, and that is what I derive from Day 13/48G. Furthermore, it was protected by a password. I think the evidence was that each database, the patient’s database and the recordings database, was in fact protected by different passwords.
There is no evidence before you that this material was Data Protection Act registered. Mr McFarlane asked about this aspect (Day 16/14E to H) and Dr Southall at that time could not help at all on data protection officers, and the like. The letter that was produced a few days ago at D22, at the close of the evidence, takes the matter, you may think, no further. Perhaps we should look at that. (After a pause) It means what it says. A letter was written by Dr Southall to the business manager in his department, but you may think that, having had a year to think about it, if this is the best document that can be produced by Dr Southall’s team, you are permitted to make various inferences about the registration of the stand alone computer.
The seventh point I make is that I readily accept that if you delve about in the hospital medical records for each child, you can, albeit with difficulty, find most of the actual information contained in C10. We went through that exercise in the course of evidence. That is not the point. The point is not that the information contained in the computer records in fact turned out not to be secret, but it was a secret, we submit, that medical records and data relating to these children were contained in a stand alone computer and no one else seems to know about it.
There were, in effect, three sets of medical records on the children with whom you are concerned. First, there is the material in the hospital medical records. Secondly, there is the additional material contained in the SC files, originals of which are set out in Appendix 1. Thirdly, there is the data contained on the stand alone computer in two particular forms, recordings as we heard, and patient data. These two last forms of files, the computer files and the SC files, we submit were parallel medical records of which few people knew. In order to find out about them – they were not volunteered at any stage, either the SC files or the records held on computer – one had to dig and ask. The reason, I submit, that you had to dig and you had to ask was that neither the SC files, nor the data held on the stand alone computer, was known about to others. Thus, we submit, in relation to head of charge 16(b), that the holding of data on the stand alone computer, amounted, as we say at 16(b), to keeping secret medical records on these children.
I know in the end, when we looked at it, the vast majority of the information was actually in the medical records, but we were not to know that, were we? We were not to know until (a) we discovered there were these secret stand alone computer records, and (b) we had to interrogate such records and find what was there. That is the concern.
The eighth point I make is that of course Child A and Child H were never patients at North Staffordshire Hospital, yet computer data relating to those two patients was found on this stand alone computer at North Staffordshire Hospital. That is head of charge 15© which is admitted.
The ninth point that I make is that one important matter that we did learn when we looked at the printouts from the data held on the stand alone computer, was that there were 1,856 patients who had their details on the recordings’ database, and there were 4,449 patients who had their details on the patients’ data database. Of course the patients’ data database is extracted from the SC files and relates only to the SC file.
Dealing with C10, in relation to Child D, document 1 comes from the SC file and is patient data; in relation to Child H, document 5 comes from the SC file and is patient data; in relation to Child A, document 11 comes from the SC file and is patient data; and in relation to Child B, document 12 comes from the SC file and is patient data. That comes from the patients’ data database, and there is the second database which we heard about which was the recordings’ database, which broadly equals discharge summaries. In relation to that, documents 3 and 4 relating to Child H came from the recordings’ database and were not reproduced in that form in the patient’s paper medical records.
The gravamen of the charge here is that the fact of the holding of this data was secret. The gravamen of the charge is not that the information itself was secret, but we only found out that the information itself was not secret when we examined the information. One would not have known of the existence of the stand alone computer data because the existence of it had never been disclosed either when those instructing me sought all the records or when the individual patients sought all the records. They emerged out of the blue, out of nowhere in August 2006.
Madam, I am in your hands. I could deal with Patient D, but that would take about three quarters of an hour.
THE CHAIRMAN: I think the formal consensus is that since time is largely on our hands and you have been on your feet a long time anyway, we could happily adjourn today.
MR TYSON: My personal preference would be to draw stumps now, but I am in the hands of the Panel.
THE CHAIRMAN: I think the Panel would be quite content to finish early today.
MR TYSON: Hearing me all day is quite gruelling.
THE CHAIRMAN: We will adjourn now until 9.30 am tomorrow morning.
(The Panel adjourned until 9.30 a.m. on Thursday, 15 November 2007)